An application has been made by Ms Cheeseman of Senior Counsel, who appears in these proceedings for Mr Chris Saravinovski. Mr Saravinovski is approximately 85 years of age. He is the defendant in one set of proceedings and the plaintiff in related proceedings which are being heard together.
The application is for the adjournment of Mr Saravinovski's cross-examination, which commenced this morning, to enable an examination by a gerontologist or other suitably qualified person to investigate the question of whether Mr Saravinovski has legal capacity. Ms Cheeseman also applies for an order under UCPR Pt 7, r 7.18 for the appointment of one of Mr Saravinovski's sons, Mr Louie Saravinovski, as Mr Saravinovski's tutor for the purposes of these proceedings. I have been informed by Ms Cheeseman from the bar table that Mr Chris Saravinovski has appointed two of his sons, Louie and Bill, as his enduring guardians.
Some background as to the history of these proceedings is appropriate. They were originally fixed before me for 10 days last year. However, for reasons which are irrelevant for present purposes, I directed that the evidence of the principal witnesses be given viva voce rather than by way of affidavit. The evidence of some of those witnesses, both by its nature and with the additional complication that it had to be given in Macedonian and interpreted, meant that a great deal more time was taken than was expected. That is not a criticism of any of the parties or their legal representatives.
When it came to Mr Chris Saravinovski giving his evidence-in-chief viva voce, it became apparent that difficulties arising from his age and his level of understanding were likely to make that a very long process. At that point, at least to my observation, the difficulties appeared to be largely practical and did not involve considerations either of Mr Chris Saravinovksi's competence for the purposes of s 13 of the Evidence Act 1995 (NSW) ("the Act") or his capacity. Rather, as a matter of case management, it became apparent that it would be more efficient over the adjournment that was in any event going to have to happen, for Mr Saravinovski's evidence to be given by affidavit. Further affidavits from him have been served and read.
5 This morning Mr Sirtes of Senior Counsel commenced his cross‑examination of Mr Chris Saravinovski. Mr Saravinovski was giving his evidence with the assistance of an interpreter. Initially, Mr Saravinovski's pattern of non-responsive and argumentative answers left me with the impression that he was refusing to engage with the process of these proceedings or the necessity for him to give proper and truthful evidence under cross-examination. However, as his evidence progressed, I became less certain that impression was correct. In particular, whilst questions were interpreted into the Macedonian language, Mr Saravinovski insisted on answering in English. With no disrespect to his ability to speak the English language, his level of fluency in English meant that, were he to continue to give evidence in English - which came across as quite broken in many respects - he was not going to be helping himself or the Court to understand his evidence. I ultimately asked him on several occasions that he give his evidence in Macedonian. I understand that request was repeated by Ms Cheeseman during adjournments which I allowed during the morning.
When a further attempt to continue his cross-examination was made, my concern was heightened as to both his competence and capacity when, at least according to answers he gave, there appeared to be a real doubt as to whether he understood as to what language he was giving his answers in. That, and his general demeanour, at least arguably evidenced something of a more cognitive problem rather than merely a difficult, unco-operative or recalcitrant witness. I took the lunch adjournment early to enable Ms Cheeseman and her team to come to their own view in relation to Mr Saravinovski's condition and what application, if any, they thought should be made.
The result of that process was the application which is the subject of these reasons.
Ms Cheeseman has submitted that there are two questions before the Court. The first is the question of Mr Saravinovski's competence for the purposes of s 13 of the Act. The second, and the one which is of more immediate importance, was the question of his legal capacity. As I understood her submissions, it was really her concern about the latter which led her, on instructions from her solicitor and from Mr Saravinovski's sons as enduring guardians, to make the application for the appointment of a tutor.
I have admitted into evidence on this application a report obtained by Ms Cheeseman's instructing solicitors from Mr Chris Saravinovski's GP on 5 October 2014. That report specifies the large number of medical conditions from which Mr Saravinovski suffers and proffers some advice about the best way in which Mr Saravinovski's evidence could be taken in the light of his various difficulties. I note that one of the doctor's observations is "one has to be aware that his mental and physical state affecting his capacity to concentrate and answer questions in Court will vary from day to day, with some days being worse than others."
Mr Sirtes has drawn to my attention that the next paragraph of the doctor's report states:
It is also my opinion that Chris Saravinovski is fully capable of managing his own affairs. I have come to this conclusion after asking him some direct questions. For example I asked him if he is aware that he may lose this case and he will have to meet the legal costs and damages. His answer was a clear yes. He went on to mention that he has been in business for 40 years and he is well aware of legal matters.
Without wishing in any way to cast doubt on the doctor's report, I do note that it is now some four months out of date. I take judicial notice of the fact that the mental and physical conditions of elderly people can change quite suddenly. It is a common experience of those legal practitioners who regularly take instructions from elderly people in relation to wills that on one day it is possible to have no doubt about a person's testamentary capacity and yet on the next day have serious concerns in relation to the same question. This phenomenon is perhaps more usually described as a recognition that elderly people have "good days" and "bad days".
Mr Sirtes has submitted that the better characterisation of what has occurred today is that Mr Saravinovski is "foxing". That is a submission which Mr Sirtes is perfectly entitled to make and for which there is also a reasonable basis in the light of what has occurred today. However, now is not the time for me to express any final view on that question.
To my own observation, there is some difference in Mr Saravinovski's apparent cognition of what is going on and his capacity to respond today to what I saw last year. More importantly for present purposes, I also took the step of calling the interpreter, who has been assisting in court when Mr Saravinovski has been giving evidence, as a court witness to give evidence as to his (the interpreter's) perception of what has occurred today. That interpreter has been retained by Mr Saravinovski's side of the record for some two years to assist in the interpretation of instructions and the affidavits to enable their due execution in accordance with the rules when the person whose evidence is recorded does not speak English. The interpreter's evidence was that he, too, had detected a noticeable deterioration today in Mr Saravinovski's apparent ability to respond to the questions which were being interpreted to him. I note that the interpreter's evidence was that, as far as he could tell, Mr Saravinovski appeared to understand what was being interpreted to him but that Mr Saravinovski's answers were not responsive to them.
Mr Sirtes laid considerable emphasis on the fact that it was apparently the case as late as yesterday that Mr Saravinovski's team felt sufficiently sure of their client's ability to give instructions that an affidavit was concluded and sworn by Mr Saravinovski. Mr Saravinovski's interpreter also gave evidence that his impression was that over the course of the preparation of that affidavit (including last night) Mr Saravinovski appeared to understand and was able to give proper instructions in relation to its preparation.
All of that having been said, I am left with the impression that something is different today. I have formed no final conclusion as to whether Mr Saravinovski has indeed suffered some temporary or permanent decline in his cognitive capacities today or whether, to adopt Mr Sirtes' description, he is foxing. However, I consider I should give considerable weight to the concerns expressed to me by experienced Senior Counsel and solicitors who have had long exposure to Mr Saravinovski and an independent witness in the form of the interpreter that Mr Saravinovski's mental condition appears to them to have undergone some sort of turn today. These matters are always difficult but in my view it is better to err on the side of caution. When the Court is confronted by responsible legal practitioners expressing what appear to be rational and properly based (as opposed to tactical) concerns about the capacity of their client, then I am disposed to err on the side of accepting the validity of those concerns.
For these reason I will shortly make an order for the appointment of a tutor for Mr Saravinovski.
The question then arises as to what is to happen next. It is clear that the parties to this litigation can ill afford an adjournment and that it is in all of their interests that the case be concluded in the remaining seven hearing days allocated. The Court has done all it can, as no doubt have the respective legal advisers, to encourage the parties to settle their differences. Regrettably, that has not occurred. It is, of course, the parties' right to seek to have their dispute finally adjudicated by the Court and that is what is happening.
It is therefore a high priority that the proceedings continue. There are a number of witnesses who have been programmed to be cross‑examined over the next few days. While Mr Sirtes has not had a full opportunity to consider any particular forensic disadvantage his clients may suffer if he is required to cross‑examine other witnesses before completing Mr Saravinovski's cross‑examination, I cannot at the moment discern - although it is always possible that Mr Sirtes may, for example, tomorrow be able to demonstrate - that there is any serious forensic disadvantage to his clients if the taking of evidence from other witnesses continues tomorrow or as soon as practicable thereafter. That is what should occur.
In the meantime steps will have to be taken to obtain expert assistance in relation to the assessment of Mr Chris Saravinovski's condition, including questions of legal capacity and competence. In circumstances where so much else between them cannot be agreed and appears to be beyond agreement, the parties do agree that their interests will be best served if the Court appoints an expert to assess Mr Saravinovski's condition with, at least in the first instance, the costs of that expert being met by Mr Saravinovski's side of the record. I agree that is what should occur as a matter of urgency. I will discuss with the parties the practical way forward in relation to that aspect of the matter.
The order of the Court is:
1. That Mr Louie (Ljube) Saravinovski is appointed as tutor for Mr Chris (Krste) Saravinovski until further order.
[2]
Amendments
09 March 2015 - Change to solicitors for Defendant in proceedings 2011/361081 and solicitors for Plaintiff/Cross-Defendant in proceedings 2012/39748
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Decision last updated: 09 March 2015