Murray v Williams

Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) LEGISLATION CITED : Succession Act 2006 (NSW) Trustee Act 1925 (NSW) Evidence Act 1995 (NSW)

Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234 CASES CITED : Masterman-Lister v Brutton & Co [2003] 3 All ER 162 Farr v State of Queensland [2009] NSWSC 906 Murphy v Doman (as representative of the estate of the late Min Simpson) and Another (2003) 58 NSWLR 51

PARTIES : Christopher William Charles Murray by his tutor Narelle Decima Murray - Plaintiff Suzanne Gaye Williams (both in her own capacity and as executor of the estate of the late Norma Gladys Murray - Defendant

R.J. Weber SC with J. McLeod [For plaintiff personally] COUNSEL : M.R. Lawson [For the Tutor] M.A. Izzo [Defendant]

Colin W Love & Co [For plaintiff personally] SOLICITORS : R & M Legal [For the Tutor] Stockman & Evans [Defendant]

• 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

2010/125569 CHRISTOPHER WILLIAM CHARLES MURRAY by his tutor NARELLE DECIMA MURRAY -V- SUZANNE GAYE WILLIAMS (both in her own capacity and as executor of the estate of the late NORMA GLADYS MURRAY) JUDGMENT 1 HIS HONOUR: The sole question before the Court is whether the plaintiff, Christopher William Charles Murray (to whom I shall refer, with no disrespect intended, as Christopher) is a person under a legal incapacity in relation to the conduct of these proceedings. 2 The question arises in the following way. 3 Section 3(e) of the Civil Procedure Act 2005 (NSW) ("the Act") provides relevantly as follows: person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings […] and, in particular, includes: (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.

4 Part 7 r 7.13 of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") provides that: 7.13 Definition In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs.

5 Part 7 r 7.14 of the UCPR provides that: 7.14 Proceedings to be commenced or carried on by tutor (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor.

6 Christopher is 60 years old. He is one of three children of the late Mrs Norma Gladys Murray ("the Deceased") who died on 18 July 2009 leaving a will dated 28 July 2008 ("the Will"). 7 Christopher's siblings are the defendant, his sister Suzanne Gaye Williams and his brother Barry Ronald Charles Murray. 8 In 1995, Christopher married Narelle Decima Murray (nee Mills).

9 Christopher has one son, James Ronald Charles Murray from a previous marriage. 10 Also with no disrespect intended, I shall refer to Narelle, Suzanne, Barry and James by their respective first names.

11 Suzanne is sole executrix and trustee under the Will. The Will provides that upon the death of the Deceased, the residue of the estate is to be held upon trust and be divided into three equal parts. The first part is, during the lifetime of Christopher, to be used and applied for his maintenance and necessities and for such other matters as the trustee in her absolute discretion deems advisable for his welfare, comfort and happiness. The Will makes provision for the first part to pass in designated shares to James, Suzanne and Barry upon Christopher's death. The second part and third parts go to Suzanne and Barry respectively. 12 The net assets of the Deceased's estate exceed $2.5 million. 13 In 2005, Mr Murray had a stroke. 14 By Summons sued out of the Court on 20 May 2010, Narelle as tutor of Christopher initiated proceedings seeking an order that provision be made under Pt 3.2 and Pt 3.3 of the Succession Act 2006 (NSW) for Christopher's proper maintenance, education or advancement in life out of the estate, and the notional estate, of the Deceased. In the alternative, the Summons seeks an order under s 70 of the Trustee Act 1925 (NSW) appointing Narelle in substitution for Suzanne as trustee of the fund established in favour of Christopher by the Will.

15 In June 2010, Christopher apparently instructed solicitors that he opposes the proceedings being brought and does not wish Narelle to bring them. 16 On 30 July 2010, Narelle filed a motion seeking a separate hearing the question of whether Christopher is in the context of this litigation, capable of managing his affairs, that is, whether he is a person under a legal incapacity in relation to the proceedings. On 13 August 2010, that question was set down for separate hearing. If he is not such a person, the proceedings are not properly brought by a tutor on his behalf. 17 At the hearing, Mr M Lawson of counsel appeared for Narelle in her capacity as tutor. Mr R Weber SC together with Mr J McLeod of counsel appeared for Christopher. Mr M Izzo of counsel appeared for Suzanne. Each party provided written submissions in advance of the hearing. Ultimately Mr Izzo, correctly recognising the limited role Suzanne has properly to play in the resolution of the question presently before the Court, made no oral submissions. 18 Christopher's solicitors obtained an expert report dated 6 September 2010 from Associate Professor of medicine, Dr J D G Watson, a neurologist on Christopher's mental capacity. Dr Watson's report was, however, tendered by Narelle. A further report of Dr Watson dated 19 October 2010 commenting on some radiological studies which had been omitted from his earlier report was tendered. Dr Watson was not cross-examined. 19 A number of affidavits were read including a number from Narelle, two from Dr Simes, a general medical practitioner at Nowra who has treated Christopher, and one each from Mr Philip McNamara, Narelle's solicitor and Mr McNamara's secretary, Ms Eleanor McClellan and Ms Tracy Lumb who was a neighbour of Christopher's for some years. There was also affidavit evidence from James and Suzanne. No witness was cross-examined. The vast bulk of this material was of no utility in the resolution of the issue before the Court and was not relied on in submissions. 20 What the affidavits do establish is, to put it at its lowest, tension between Christopher and Narelle and Narelle and Suzanne. Mr Lawson accepted that if a tutor was warranted, Narelle was in the circumstances not an appropriate candidate. 21 Narelle did seek to rely on evidence of Mr McNamara of a visit in May this year to the Coastal Waters Aged Centre at Nowra where Christopher was then residing, for the purpose of taking instructions for an affidavit in this matter. Mr McNamara said Christopher was unable to tell him his name and date of birth. I attach little weight to this evidence. It is not clear what steps, if any were taken to prepare Christopher for the visit and Mr McNamara's explanation to Christopher of its purpose was at best perfunctory. Moreover, I prefer to rely on Dr Watson's comprehensive and professional examination which took place more recently on 2 September this year particularly having regard to his opinion, referred to below, that as is usually the case, patients with severe expressive aphasia always appear to be much more cognitively handicapped than they may be, principally because it is through language that we communicate with other humans. 22 The evidence of Dr Simes, whose last contact with Christopher was apparently in June this year, was that his experiences with Christopher are compatible with him understanding only the broad brushstrokes of a legal or financial matter at best and that he considers Christopher has lost the ability to compare and balance conflicting information and is inclined to take things at face value in the first instance but has a poor memory of these events subsequently. However, his evidence was that at his last point of contact he found Christopher to be about as communicative and responsive as he has been in many months but that past experiences have shown enormous variations in his cognitive function on a day to day basis which is probably a result of seizure activity causing post ictal confusion and amnesia. 23 It was not suggested that Dr Simes' evidence is or should be regarded as a qualification of the opinions of Dr Watson.

24 During the course of the hearing, there was produced by Narelle under Notice to Produce an additional medical report from Professor Bruce Brew of the Department of Neurology at St Vincent's Hospital which had been produced by Professor Brew and provided to Narelle's solicitors for the purposes of the proceedings. Narelle asserted legal professional privilege over the document. I did not uphold the claim and the document was tendered on behalf of Christopher but it was scantly referred to in submissions. I did however indicate that I would give reasons for my decision not to uphold the claim for privilege when I gave judgment. I now do so in brief terms. Section 119 of the Evidence Act 1995 (NSW), upon which the claim for privilege rested provides that: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 25 Whether an obligation of confidence should be inferred depends on the nature of the relationship in question, the nature of the communications or documents in question and the purposes for, and the context in, which they were made: see for example Rickard Constructions Pty Ltd v Rickard Hails Moretti Pty Ltd [2006] NSWSC 234. There was no dispute that Professor Brew is Christopher's treating doctor. There was no evidence of any request that the report be kept confidential or of Professor Brew indicating or accepting that it would be. This is not surprising because in my view, although the report was obtained for the purposes of this hearing, in the particular circumstances of this matter, it could hardly be suggested that it was contemplated that a report provided by Christopher's own treating doctor about his condition (which was to be debated in Court) was to be kept confidential from him. An essential requirement of s 119 of the Evidence Act 1995 (NSW), namely an obligation of confidence in relation to the documents, is absent. 26 There is no dispute that the test to be applied in determining Christopher's mental capacity or lack of it is that applied by Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 (and accepted by Price J in Farr v State of Queensland [2009] NSWSC 906 at [15]) which his Lordship articulated as follows: [...] the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem.

27 To similar effect is what was said by Handley JA in Murphy v Doman (as representative of the estate of the late Min Simpson) and Another (2003) 58 NSWLR 51 at 58 [34]-[36]: 34 The definition of an incompetent person in the Rules reflects the earlier law. See Martin v Azzopardi (1973) 20 FLR 345, 347 per Fox J. At 348 Fox J referred to evidence that the plaintiff was incapable of managing his own affairs and continued: "If, and as soon as, the plaintiff was in this condition he would be unable to retain a solicitor. That is to say, he would not have the mental capacity to understand the nature of the acts or transactions which he would be authorising." 35 The cases do not consider the level of mental capacity required to be a "competent" litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. 36 There is a presumption of sanity which applies unless and until the contrary is proved. Attorney General v Parnther [1792] EngR 2455; (1792) 3 Bro CC 441, 443 [29 ER 632, 634]; M'Naghten's Case (1843) 10 Cl&Fin 200, 210 [8 ER 718, 722]. This means, in modern terms, that there is a presumption that a person of full age is capable of managing his or her affairs.

28 Hence I approach the matter by considering whether with proper explanation from legal advisers and experts Christopher has capacity to understand what he needs to understand to pursue (or decide to pursue or not to pursue) the claim which Narelle has made. 29 Dr Watson reviewed Christopher in his rooms at Camperdown on 2 September 2010. At that time Christopher was an inpatient at St Vincent's Hospital. The report, which is comprehensive and lucid, sets out the details of the consultation which took place in just under two hours. 30 In some, but not all instances, Dr Watson obtained responses by giving Christopher a "forced choice" question. For example, he asked Christopher what a Will was to which he replied, "a Will is a Will". However Christopher then said it was, "to give other people money". He told Dr Watson that a Will came "from a dead person". Dr Watson asked him to whom one might normally leave money in a Will, to which he replied "to son, daughter". Dr Watson then gave him a forced choice of other people to whom one might commonly leave money, naming school classmates, hotel guests, church congregation and family members - he identified family members. Christopher was able to tell Dr Watson that his sister and his brother were to share the proceeds of the Will. Christopher indicated that the Will would divide the shares of his estate equally into three and he said that he was happy with this decision.

31 Mr Lawson put that Christopher would not be able to weigh his short term interests against his medium and long term ones and that it would be impossible for him to give instructions as to the course of the litigation. He emphasised that Dr Watson achieved responses to certain questions only by giving Christopher a forced choice. I do not uphold this submission. 32 Whilst it is clear that Christopher's ability to communicate, particularly through language, has been impaired he clearly cannot be described as incommunicate. He was able to communicate, amongst others, an understanding of the nature and operation of the Will and that he did not want to change or challenge it. 33 Dr Watson expresses the following opinions in relation to the following questions: What is my opinion as to Mr Murray's current mental capacity? I am of the opinion that Mr Murray had adequate mental capacity to understand the situation he is in, to comprehend much of what is said to him, and to appreciate and indicate when information is too complex for him to follow. As with Mr Rawling, I was impressed at how he can indicate by forced choice procedures correct information, what he would like to happen etc. He was adamant that he was happy with the arrangements as set up following his mother's Will, in his view the fairness of equal division of the estate between him and his two siblings, and a strong desire that this not be interfered with. As is usually the case, patients with severe expressive aphasia always appear to be much more cognitively handicapped than they may be, principally because it is through language that we communicate with other humans. If one takes the time and is prepared to offer forced choices, re-express information in simpler forms etc in many cases it is apparent that Mr Murray's underlying reasoning capacities and other cognitive capacities such as memory (e.g. see Mr Rawling's findings about recall of the features of the story that was read to him) much more intact. Indeed the very first case of expressive aphasia, the mid 19th century case of "Tan" presented by Dr Paul Broca in Paris was a case just like Mr Murray. It was Broca's extraordinary conclusion that he felt that the patient had cognition relatively intact compared with expressive ability that led to a radical shift in the modern understanding of brain function and localisation of that function. The type of aphasia that Mr Murray has is even now called "Broca's aphasia." Do I consider that Mr Murray has capacity to understand the nature of his affairs, particularly his financial affairs? My answer to this is in two parts. I am of the opinion that Mr Murray understands significant aspects of his affairs, the nature of his mother's Will, how Wills work, the nature of the share, who might benefit from a Will etc. However I am of the opinion that he is unlikely to have a full enough understanding of details of his financial affairs to administer them on a day-to-day basis. Mr Murray was also of this opinion and stated that he would wish his sister Suzanne to administer his financial affairs on his behalf - he and his son indicated that she was already playing a significant role in such activities years ago. Do I consider that Mr Murray has capacity to make decisions about, and authorise transactions in respect of his affairs, particularly his financial affairs? I am of the opinion that Mr Murray might be able to make in-principle decisions if they are distilled into their simplest forms about aspects of his affairs particularly his financial affairs but he would unlikely be able to make the detailed and nuanced decisions that are often required. As an example, there are individuals who have a strong personal preference for, or dislike of, individual asset classes such as shares, property or deposits in banks. They may or may not be correct in this belief but they can express it. It is my opinion that Mr Murray would probably be able to indicate such preferences; however in allocating investments as between classes, with reference to the investment climate etc I am of the opinion that he would have difficulties. Do I consider that Mr Murray understands that he is able to make a claim against his late mother's estate which could potentially increase his share of that estate? Yes, I consider this to be the case. Do I consider that Mr Murray has capacity to make a decision about whether or not to make a claim against his late mother's estate? Yes, I am of the opinion that Mr Murray has capacity to make such a decision; indeed he indicated to me directly (without any overt influence, or speaking on his behalf, by his son that he did not wish to make a claim against his late mother's estate for an increased share of the estate. 34 Undoubtedly the exercise of taking Christopher's instructions will involve patience. It may also involve having to employ a person with knowledge and expertise in communicating with persons who have suffered strokes and whose ability to communicate has, as with Christopher, been impaired as described by Dr Watson. 35 Whilst detailed and nuanced decisions on sophisticated financial questions may be beyond Christopher's present capacity, far from it having been established that Christopher lacks capacity to understand that which he needs to in order to pursue the present claim or to decide not to pursue it, in my view Christopher has that capacity. 36 I therefore answer the question, is Christopher William Charles Murray a person under a legal incapacity in relation to the conduct of these proceedings? No. 37 I will hear the parties on the procedural future of this suit and, if necessary, on costs. **********

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