Nitopi bht Nitopi v Nitopi

Issues

1. Because of the time at which the adjournment application was made, that motion was listed at the adjourned hearing of Ms Nitopi's first motion.
2. In issue between the parties then was thus both whether the adjournment should be granted and whether the Registrar's orders should be set aside.

Conclusions

1. Having received the evidence and heard the parties I concluded that the adjournment could not justly be granted. The reasons for that conclusion follow.
2. That led to the tender of a July 2022 psychologist's report, which had been served only on the evening before the adjourned hearing, contrary to what Rothman J had ordered, which was objected to. Evidence then called from Mr Deutsch resolved the objection, but his evidence was inconsistent with Mrs Nitopi lacking the necessary capacity to conduct the proceedings.
3. That and other evidence has led me to conclude that orders setting aside the Registrar's dismissal of the proceedings for want of due despatch cannot justly be made.

Why the further adjournment was refused

1. Ms Nitopi's application for further adjournment of the hearing of her motion was refused for the following reasons.

What the proceedings concern

1. In 2015 Mrs Nitopi sought payment of $6.2 million from Mr Nitopi, claiming that he had deceived her and been unjustly enriched as a result in circumstances where: 1. in 1990 Mrs Nitopi had obtained a $2 million bank loan secured over a property at Riverstone at the request of Mr Nitopi, who was to make the repayments; 2. a further $2 million loan was obtained in 1999 on the same basis, Mrs Nitopi understanding that the borrowings had been used to purchase a business, an apartment and three factories; 3. the loans were refinanced in 2009, Mr Nitopi assuring Mrs Nitopi that he would make all repayments on the $4.1 million which she then transferred to him; 4. the loan was later increased to $5 million and a further $100,000 was later also borrowed and provided to Mr Nitopi; 5. the bank appointed a receiver for the Riverstone property in 2013, after which Mrs Nitopi became aware that loan repayments had not been made, with the receiver selling the property for $6.2 million in September 2013; and 6. that Mr Nitopi refused to repay any of the sums Mrs Nitopi had advanced to him.
2. Mrs Nitopi's claims were defended, Mr Nitopi denying both the agreements and having received the claimed monies. The pleadings were later amended, Mrs Nitopi's current pleading being a June 2017 further amended statement of claim.
3. In his further amended cross-claim Mr Nitopi alleged that he and his sister had agreed to develop the property in return for a share of its increased value and that he had contributed $1 million of his own money for that purpose. He sought repayment of that sum, as well as damages for breach of contract exceeding $5 million.

The parties' cases

1. On the application for a further adjournment of the hearing, it was submitted for Ms Nitopi that the 14 day adjournment sought before Rothman J had been overly optimistic, reflective of counsel's error, but that any lack of diligence in arranging to have Mrs Nitopi examined had been that of Ms Nitopi.
2. The resulting need to adjourn the hearing of her motion again, was because an appointment had only been made on 9 December to have Mrs Nitopi's capacity assessed. It was argued that the further adjournment would lead to no prejudice for Mr Nitopi, which could not be addressed by a costs order and that the grant of a further short adjournment satisfied the requirements of s 56 of the Civil Procedure Act 2005 (NSW).
3. Mr Nitopi's case was that this would not be accepted. That it was not only a question of costs, which arose to be considered. They would not be adequate in the circumstances in any event.
4. He also contended that there had been no adequate explanation for the further failure to comply with the Court's orders, or even the service of the June psychologist's report on the evening before the hearing in breach of those orders and that in all the circumstances, the just course required the hearing of Ms Nitopi's motion to proceed on the evidence which had been served.
5. I was satisfied that given all that arose to be considered, the case advanced for Ms Nitopi could not be accepted.

The procedural history

1. It was in April 2018 that Hulme J first dismissed the proceedings for want of due despatch: Nitopi v Nitopi (Supreme Court (NSW), Hulme J, 5 April 2018, unrep). That decision was overturned: Nitopi v Nitopi [2019] NSWCA 81. There the Court followed views expressed in Green v Healthscope Ltd t/as The Hills Private Hospital [2015] NSWCA 325 at [26] that "when there has been no hearing on the merits, a court should be reluctant to make an order dismissing proceedings for want of prosecution or want of due despatch, unless there has been an intentional and contumelious default on the part of the plaintiff, or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible".
2. It was also there observed that the stringency of that principle has been diminished by the enactment of ss 56-60 of the Civil Procedure Act 2005 (NSW). That is because in determining such an application it is necessary to have regard to the "overriding purpose" referred to in s 56, being to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" as well as the other applicable requirements of the legislative scheme.
3. In 2018 there had been some seven breaches of the Court's orders requiring the filing of evidence, which the Court of Appeal concluded meant that there was no error in the finding that the proceedings had not been pursued with due despatch. But it was also concluded that the number and seriousness of the defaults were not as significant as Hulme J had been led to believe and that the latest had been rectified by the time of the hearing of the dismissal motion: Nitopi v Nitopi [2019] NSWCA 81 at [17]. Further, that there had been explanations given and that the necessary consideration which needed to be given to Mr Nitopi's cross-claim had not been given, resulting in there being little point in the orders which had been made: at [24].
4. It was also observed that the proceedings would benefit from close supervision by a first instance court and the parties were urged to consider seeking to have the proceedings entered into the Equity Division Commercial List to facilitate this: at [33].
5. At the time other proceedings were on foot in relation to the estate of Mrs Nitopi's husband, of which Mr Nitopi was the executor. Ms Nitopi was the defendant in those proceedings. Parker J gave judgment in June 2021: Estate of Nitopi (No 2) [2021] NSWSC 748. Ms Nitopi's appeal against that decision was partially successful: Nitopi v Nitopi [2022] NSWCA 162.
6. The Court of Appeal's advice was not pursued, but Mr Nitopi and Ms Nitopi were able to settle the claims he pursued against Ms Nitopi in these proceedings. Mrs Nitopi, however, ceased pursuing her claims against Mr Nitopi, with the eventual result that the proceedings were dismissed for want of due despatch.
7. It was in June 2021 that Harrison J had dismissed Mr Nitopi's application to have Mrs Nitopi's statement of claim struck out as an abuse of process. Then he claimed that Mrs Nitopi had used criminal conduct to prevent or hinder him from defending her claim and prosecuting his cross-claim: Nitopi v Nitopi [2021] NSWSC 669. While there was no issue that Mrs Nitopi had been convicted of two out of nine charges relating to break-ins at Mr Nitopi's home, which she said she intended to appeal, Harrison J concluded that a basis for a stay of the proceedings had not been established. That was because Mr Nitopi had not identified the documents which he claimed had been stolen from him, which had a connection with his defence of Mrs Nitopi's claim, or the prosecution of his: at [16]-[20].
8. There was no evidence that any appeal was pursued by Mrs Nitopi. But after Harrison J dismissed Mr Nitopi's motion, orders had been made for the service of evidence for the hearing of the matter. They were not complied with in circumstances where in November 2021 Mr Nitopi and Ms Nitopi settled their differences and settlement negotiations with Mrs Nitopi were also being pursued. Both Mrs and Ms Nitopi were then represented by Mr Byrnes.
9. The settlement did not progress, but nor was Mrs Nitopi's claim pursued. Mr Byrnes had difficulty in obtaining instructions from her, with the eventual result that he raised the question of Mrs Nitopi's capacity. Even though he remained on the record and the Registrar had ordered service of evidence about Mrs Nitopi's medical condition, he ceased appearing.
10. Having been approached by Ms Nitopi, spoken to Mr Byrnes and seen the psychologist's report, Mr Deutsch was not prepared to accept instructions from Mrs Nitopi. Without entering an appearance or seeking leave, Mr Deutsch then repeatedly sought to appear before the Registrar in April, May and June 2022, on each occasion indicating that there was still a question about Mrs Nitopi's capacity.
11. In May the Registrar warned that if the order requiring service of the outstanding evidence was still not complied with, the matter might be dismissed for want of prosecution. The Registrar then extended compliance to 8 June 2022 listing the matter for Mrs Nitopi to show cause under r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), if the orders had not been complied with. Liberty to apply was given, but not exercised.
12. The orders were not complied with and at the June hearing Mr Deutsch was again refused leave to appear, Mr Nitopi objecting to him being heard and the proceedings were then dismissed for want of prosecution. On this application there was no suggestion that Mr Deutsch was then entitled to be heard, the Rules generally not permitting a party to be represented by more than one retained solicitor and requiring notice of a change of solicitor to be filed: rr 7.24 and 7.26.
13. Mr Deutsch only entered an appearance in July, first for Ms Nitopi when she consented to act as tutor and filed her motion, which was supported by the affidavit he had sworn, which referred to but did not attach the psychologist's report. Later he entered an appearance for Mrs Nitopi. The inference that he must have spoken to Mrs Nitopi to receive her instructions flowed from entry of that appearance. But that he had done so was not revealed until after the further adjournment of the hearing was refused.
14. Despite this, even after orders for service of evidence in relation to Ms Nitopi's motion were made, evidence from Mrs Nitopi's doctors was not served. Even on the further adjournment application this was unexplained.
15. On 7 September the service of evidence had been extended to 22 September and Ms Nitopi was ordered to file evidence in reply by 12 October. The affidavits filed did not provide the outstanding evidence.
16. What had been filed was read without objection at the hearing before Rothman J on 7 November, as was an affidavit sworn by Mr Nitopi in June 2019 and the unresolved question of Mrs Nitopi's capacity was then addressed. Despite all of the previous opportunities to comply with the Registrar's orders, having heard the parties Rothman J took the view that the question of Mrs Nitopi's capacity had to be dealt with before the question of permitting the proceedings to continue was resolved and that both issues should be dealt with together.
17. His Honour thus adjourned the hearing ordering: "1. The plaintiff's Notice of Motion be stood over to 10:00am on 1 December 2022 (with a 2-day estimate); 2. Leave granted to the plaintiff to file any application as advised relating to the appointment of a tutor and/or medical evidence as to the future conduct of the proceedings; 3. Such evidence to be filed on behalf of the plaintiff by 5:00pm on 18 November 2022; 4. The defendant to file any material or further application it seeks to make in response to the material filed on behalf of the plaintiff by 5:00pm on 30 November 2022; 5. The foregoing orders are made pursuant to the provisions of s 61 of the Civil Procedure Act 2005 (NSW); 6. Costs reserved."
18. The application these orders permitted was not made.
19. Mr Deutsch had filed a notice of intention to file a notice of ceasing to act on 30 September, which he had not acted on. He filed a second notice on 16 November which also did not result in the filing of a notice of ceasing to act.
20. On 24 November Mr Deutsch filed an affidavit deposing that despite having sought instructions from Ms Nitopi immediately after the hearing on 7 November no steps had been taken to obtain a medical report about Mrs Nitopi. On 19 November Ms Nitopi had instructed that one would be sought, but on 23 November she advised that the first appointment that could be obtained was 23 December. Mr Deutsch made enquiries of other neurologists and geriatricians, the first available appointment being 9 December.
21. A directions hearing was then sought by Mr Nitopi and Mr Deutsch advised that a motion seeking the adjournment of the hearing would be filed. It was filed on 25 November and on 28 November when the matter was relisted for directions, the adjournment motion was listed for hearing at the adjourned hearing on 1 December. That an appointment had been made for 9 December was later confirmed.
22. The parties later filed affidavits and short submissions in relation to the adjournment application, but the psychologist's report was only served on 30 November.
23. Mr Deutsch's affidavit established that no steps had been taken to rectify the default which had resulted in the dismissal of the proceedings; that after the adjournment of the hearing before Rothman J Ms Nitopi had delayed seeking an appointment to have Mrs Nitopi's capacity assessed; and that it was as the result of steps Mr Deutsch pursued that the appointment had been made for 9 December.
24. This is what had led to the belated adjournment application and the service, only on the evening before the adjourned hearing, of the June psychologist's report.
25. The proper inference in all those circumstances is that any evidence Ms Nitopi could have given would not have assisted her application: Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

The applicable law

1. There is no question that parties must be given a fair opportunity to advance their cases.
2. But they are not entitled to expect that a failure to comply with the Court's orders will result in the grant of an application to adjourn a fixed hearing. To the contrary, it is long settled that a party which has put itself in default, so that it is not able to present its own case, is not automatically entitled to an adjournment: Apex Pallett Hire Pty Ltd v Brambles Holdings Ltd (Supreme Court (Victoria), 8 April 1988, unrep) discussed in Coopers Brewery Ltd v Panfida Foods Ltd (1992) 26 NSWLR 738.
3. In Frugtniet v State Bank of New South Wales [1999] NSWCA 458 an appeal against a refusal to adjourn part heard proceedings failed, even though it was considered that it was only in extraordinary cases that the interests of justice will be served by a refusal of an adjournment which is likely to terminate proceedings, applying Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 631: at [31].
4. It was the plaintiff's conduct in that case which led the trial judge to refuse to accept the reasons advanced for a further adjournment and the conclusion on appeal that the interests of justice were served by the refusal. It being observed that "[j]ustice is something which must be provided to all parties in legal proceedings" and that the right of the Bank to have its case heard justified the trial judge taking the course that he did: at [32].
5. As discussed in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 the claims of other litigants and the public interest in achieving the most efficient use of court resources also arises to be considered on such an application: at [26]-[27].
6. Thus the necessity to take into account "the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications made without adequate explanation or justification, whether they be for adjournment, for amendments giving rise to adjournment, or for vacation of fixed trial dates resulting in the resetting of interlocutory processes": at [30].
7. Further, as well as the costs resulting from an adjournment, the strain of litigation must also be weighed in the balance, given that costs recoverable even on an indemnity basis will not necessarily compensate for time lost and duplication where litigation is delayed: at [99]-[100].
8. That approach reflects the necessity to bear in mind the requirements of s 56 of the Civil Procedure Act, which imposes obligations on the Court and the parties to facilitate the overriding purpose of that Act, the just, quick and cheap resolution of the real issues in the proceedings.
9. In exercising its discretions s 58 requires the Court to act in accordance with the dictates of justice and in determining what they require, to have regard to the requirements of both ss 56 and 57. The latter specifies the objects in subs (1) to which the Court must have regard to be the just determination of the proceedings; the efficient disposal of its business; the efficient use of available judicial and administrative resources; and both the timely disposal of the proceedings and all other proceedings in the court, at a cost affordable by the respective parties.
10. Section 58(2) also empowers the Court to have regard to the following matters, to the extent to which it considers them relevant: (i) the degree of difficulty or complexity to which the issues in the proceedings give rise, (ii) the degree of expedition with which the respective parties have approached the proceedings, including the degree to which they have been timely in their interlocutory activities, (iii) the degree to which any lack of expedition in approaching the proceedings has arisen from circumstances beyond the control of the respective parties, (iv) the degree to which the respective parties have fulfilled their duties under section 56 (3), (v) the use that any party has made, or could have made, of any opportunity that has been available to the party in the course of the proceedings, whether under rules of court, the practice of the court or any direction of a procedural nature given in the proceedings, (vi) the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction, (vii) such other matters as the court considers relevant in the circumstances of the case.
11. Sections 59 and 60 require the Court to implement its practices and procedures to: 1. eliminate delay and its final determination "beyond that reasonably required for the interlocutory activities necessary for the fair and just determination of the issues in dispute between the parties and the preparation of the case for trial"; and 2. resolve the issues between the parties in such a way that the cost "is proportionate to the importance and complexity of the subject-matter in dispute".
12. None of these considerations, in my view, supported the further adjournment of the hearing of the motion to set aside the Registrar's order dismissing the proceedings for want of due despatch, despite what the motion concerned.
13. In this case it was the history of non-compliance with the Court's orders which required production of information about Mrs Nitopi's medical condition, which resulted in the dismissal of the proceedings for want of due despatch. This reflects that a person's legal capacity is generally presumed, unless incapacity is established by medical evidence, unless the lack of capacity is so clear that medical evidence is not required: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432; the Full Federal Court stated at [27].
14. A failure to pursue litigation with due despatch, of itself, may not establish incapacity. There is a difference between not having the capacity to so pursue litigation and not exercising such capacity.
15. In this case Ms Nitopi has adopted a similar approach to the production of medical evidence about Mrs Nitopi. Neither before nor after the hearing before Rothman J did she serve evidence about Mrs Nitopi, despite all the orders made in respect of Ms Nitopi's motion.
16. What was proposed on the adjournment application was that Mrs Nitopi later be examined as to her capacity, after the date fixed for the adjourned hearing, not service of the medical evidence the Registrar had ordered.
17. That had to be understood in a context where, under the Uniform Civil Procedure Rules, it is only a person under legal incapacity, who may not commence or carry on proceedings: rr 7.13 and 7.14(1) of the Rules. That term is defined in s 3 of the Civil Procedure Act by reference to "incapacity in relation to the conduct of legal proceedings". This requires a consideration of what is involved in the conduct of the particular proceedings: Azar v Kathirgamalingan [2012] NSWCA 429 at [168].
18. As Sackar J discussed in Walton v Hartmann [2017] NSWSC 1432, where proceedings are brought by a person who has such capacity and later loses that capacity, orders staying the proceedings until a tutor is appointed can be made: at [3].
19. No such order has ever been sought or made in these proceedings.
20. A lack of capacity does not lead to an automatic stay of the proceedings: Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [50]. The test is as discussed by Price J in Farr v Queensland [2009] NSWSC 906 at [15].
21. There his Honour adopted the approach of Chadwick LJ in Masterman-Lister v Brutton & Co [2003] 3 All ER 162 at [75]. Namely, whether the party "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 or she can understand that which needs to be understood in order to pursue or defend the claim, the law does not require the interposition of a tutor.
22. Further, a person's capacity may fluctuate, resolve or deteriorate, but if incapacity ceases, a tutor cannot continue.
23. In this case the question of Mrs Nitopi's capacity arose over a year ago, while she retained her former solicitors. On Mr Deutsch's evidence, Mr Byrnes had informed him of the question which had arisen about Mrs Nitopi's capacity, after Ms Nitopi first approached him in 2022. The psychologist's report he then saw, he considered, "did not unambiguously state that the plaintiff has the capacity to instruct me" and so he advised Ms Nitopi that he would only act if she agreed to act as tutor.
24. While that approach did not accord with the applicable test, Ms Nitopi did not give her consent to act as tutor until after Mrs Nitopi's proceedings were dismissed and even then, despite the Court's orders she led no evidence capable of establishing the existence of her mother's incapacity, on which her consent to act as tutor depended.

Justice required the refusal of the application

1. In all those circumstances I was satisfied that the case advanced for the belated further adjournment application could not justly be granted.
2. There was no question that the necessity to serve evidence about Mrs Nitopi's medical condition had long been known, both to Ms and Mrs Nitopi's former solicitors and Mr Deutsch and yet the failure to serve what the Court had repeatedly ordered, was not explained. Even before Rothman J it had been said that evidence from Mrs Nitopi's treating doctors could be provided, but it was not.
3. Mr Deutsch's evidence explains the course which had then been pursued by Ms Nitopi, on which even further adverse light was shed after the adjournment application was refused, when the psychologist's report was tendered and he was called to give evidence.
4. But even when the adjournment application was made, leading evidence from Mrs Nitopi's treating doctors was not proposed. That was not explained. The proper inference was that such evidence would also not have assisted the case Ms Nitopi advanced, even on the adjournment application.
5. It is not when a question of capacity arises, but when incapacity exists, that a tutor may be appointed. There was no suggestion that this has ever been established in Mrs Nitopi's case.
6. Ms Nitopi had every opportunity to put on evidence to establish that her mother lacked capacity when the proceedings were dismissed, or even now. No explanation for the course which she had pursued, which had also not resulted in the production of any evidence of her mother's medical conditions, did not support the grant of the adjournment application.
7. When that was considered in light of the service of the psychologist's report on the evening before the hearing, I was satisfied that a further adjournment so that Mrs Nitopi could later be medically examined as to her capacity, Rothman J's orders also not having been complied with, could not be granted.
8. There was no suggestion that the conduct of the proceedings, the Registrar's March 2022 orders, repeatedly extended as they were and still not complied with, had not reflected that they had not been pursued with due despatch.
9. Ms Nitopi's challenge to the dismissal of the proceedings required an explanation of the course Mrs Nitopi had pursued. Ms Nitopi had been given every reasonable opportunity to put on evidence to advance her case. But no explanation had been given for the ongoing failure to produce evidence from Mrs Nitopi's doctors about her current medical condition. Nor had any independent evidence going to capacity been obtained.
10. Parties simply cannot proceed on the basis that the unexplained failure to comply with the Court's orders, particularly when granted a further opportunity to put on evidence as Ms Nitopi had been, will result in the grant of yet another adjournment of a hearing, which is opposed. The dictates of justice require proper consideration of the position of both parties.
11. In Watson v Watson (1968) 70 SR (NSW) 203 an appeal against a refusal of an adjournment application was dismissed in circumstances where that application was made during the course of a hearing, so that evidence of capacity could be obtained by having the respondent psychiatrically examined, to see whether he was capable of giving evidence. The application was refused, there being no issue that it had been long known to the three firms of solicitors who had acted for him that the question of capacity to give instructions and evidence might be a real one at trial. It was concluded that there had been no error of principle in refusing an adjournment to obtain evidence which should have earlier been obtained.
12. In this case the position was even less favourable to the applicant for the adjournment than in Watson. The issue of capacity has also long been known to more than one legal representative; and production of evidence had been ordered, but not provided, not even the report in existence which went to Mrs Nitopi's capacity, on which Mr Deutsch had acted, until the night before the adjourned hearing.
13. The hearing of Ms Nitopi's motion had already been adjourned so that further evidence could be served and despite this the outstanding medical evidence was not served and a further adjournment was sought because a capacity assessment was only belatedly pursued. That should have been undertaken before the motion was filed. I was satisfied that its pursuit after Rothman J's orders were not complied with as they should have been, could not result in yet another adjournment, given the requirements of the Civil Procedure Act and the applicable authorities which I have discussed.
14. Two days had been set aside to hear Ms Nitopi's motion and the question of capacity which it raised. Another adjournment, necessarily until 2023, if Mr Nitopi was to have a fair chance to consider any report served, to lead further evidence, serve any subpoenas and to prepare his case in response, was beyond what justice permitted.
15. In these circumstances, that any costs order would achieve the necessary balance between these parties, could not be accepted.
16. The rejection of the application was supported by the undoubted adverse impact which the exercise of the Court's discretion sought would have had on the Court and its administration of justice. I considered that the approach which had been adopted and what was further proposed, without necessary regard to the need to comply with the Court's orders, could not justly be permitted to be further pursued.

The Registrar's dismissal of the proceedings for want of due despatch could not justly be set aside

1. I was also satisfied that Ms Nitopi had not met the onus which fell upon her to establish that the Registrar's orders could justly be set aside.

The applicable law

1. For Ms Nitopi reliance was placed on the considerations Ward J, as her Honour then was, discussed in Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433 at [499]-[502]. There her Honour was considering an application for permanent stay of the proceedings, referring to the authorities which bound the exercise of that discretion. They included prejudice on which reliance is placed, which falls to a defendant to establish, which has to be weighed against prejudice to a plaintiff deprived of an otherwise valid claim.
2. It is long settled that on an application such as this "… a balance must be struck as between the plaintiff and the defendant and, in the end, 'the court must decide whether or not on balance justice demands that the action should be dismissed'". That balance must be arrived at having regard to the particular circumstances of the case: Witten v Lombard Australia Ltd [1968] 2 NSWR 529 at 534 and Stollznow v Calvert [1980] 2 NSWLR 749 at 751-752, discussed in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51].
3. Now that consideration must also be undertaken in light of the requirements of the Civil Procedure Act earlier discussed.

The proceedings were not pursued with due despatch

1. These proceedings were commenced in 2015 but had still not proceeded to hearing before they were dismissed by the Registrar for want of due despatch, after the unexplained, ongoing failure to comply with the Court's orders, made after a question of capacity was raised by Mrs Nitopi's former solicitors. That is a feature which distinguishes this case from others which have arisen for consideration, it must be accepted.
2. The strongest aspect of the case advanced for Ms Nitopi was thus the consequence of the orders which had been made for Mrs Nitopi, who it was argued was not responsible for the failure to comply with the Court's orders, or the course which Ms Nitopi had pursued.

What the additional evidence established

1. This submission has to be considered in light of the absence of any assessment which established Mrs Nitopi's incapacity or any medical evidence about her medical conditions, in light of what the evidence led after the adjournment was refused revealed.
2. Mr Deutsch was then called to give evidence which established that the psychologist's report which had been served the night before the hearing was the "medical report" to which he had referred in his supporting affidavit, which had caused him to refuse to act unless Ms Nitopi agreed to become her mother's tutor. The objection to the tender of the report was then withdrawn.
3. This report revealed that it was not concerned with an assessment of Mrs Nitopi's legal capacity; that she had then reported having been in hospital, having been diagnosed with a UTI and delirium, for some months earlier in 2022, but that she had been discharged; and that: 1. Mrs Nitopi had been referred by Ms Nitopi "to gain a clearer understanding of her cognitive capacity and determine the best assistance for her"; 2. some weeks before Mrs Nitopi's admission she had been having mobilisation difficulties at night and waking in the early hours of the morning feeling confused and agitated; 3. Mrs Nitopi had otherwise been healthy, experiencing no significant illnesses or operations; 4. until Mrs Nitopi's recent hospital admission she had experienced no medical or psychiatric diagnosis; 5. Mrs Nitopi was able to undertake all tasks during a psychometric testing, the results of which were explained; and 6. the recommendations made were: "Cristina's overall performance on the WAIS-IV is consistent with Borderline Intellectual Disability. It should be noted again however that her nonverbal reasoning abilities were significantly better than her verbal reasoning abilities. Whether this is a result of her recently diagnosed Delirium is unclear. Regardless of cause, it should be noted again that, at present, it seems clear that for Cristina, making sense of complex verbal information and using verbal abilities to solve novel problems are very difficult for Cristina. According to the DSM-V, "Intellectual Disability is a heterogenous condition with multiple causes. There may be difficulties with social judgement; assessment of risk; self-management of behaviours, emotions, or interpersonal relationships; or motivation in school or work environments. Lack of communication skills may predispose to disruptive and aggressive behaviours. Gullibility is often a feature, involving naivete in social situations and a tendency for being easily led by others. Gullibility and lack of awareness of risk may result in exploitation by others and possible victimization, fraud, unintentional criminal involvement, false confessions and risk for physical and sexual abuse (Diagnostic and Statistical Manual of Mental Disorders - Fifth Edition, p38)."
4. When Mr Deutsch was cross examined it also emerged that: 1. despite what was contained in the report, he had initially only taken instructions from Ms Nitopi; 2. while he had not revealed this in his affidavits, he had spoken to Mrs Nitopi by telephone, after Ms Nitopi's first motion was served, in late July or early August; 3. in response to a question as to whether he had formed an independent opinion about Mrs Nitopi's capacity, he said "I am not a medical expert"; 4. he explained his conversation with Mrs Nitopi: "Q. So, because you haven't met her face-to-face, you haven't been able to form your own opinion about her capacity, have you? A. Well, I had a conversation with her and we discussed the issue of a tutor and the appointment of a tutor about the nature of the proceedings, whether she wanted the proceedings to continue. She said, "Yes". Whether she wanted her daughter to be a tutor as opposed to her running a matter, she said, "certainly". She wanted her daughter to be the tutor. She didn't want to run the matter in her own name given all the medical issues she had incurred. And I formed the basis that the appointment of tutor was best course after speaking with her. Q. And what medical issues did she say that she had or that you said that she had? A. She didn't mention any specific medical issues herself, but she said she'd been in hospital." 1. he believed that Mrs Nitopi had been admitted in Concord Hospital, but that he did not believe that she had been in a mental unit; 2. he had not made any enquiries of Mrs Nitopi's treating doctors and had not been asked to make any appointments for her with a doctor; 3. he assumed that Mrs Nitopi was still being treated by a doctor, but did not know who or what she was suffering from; and 4. that the psychologist's report was not a treating report.
5. Entry of Mr Deutsch's appearance for Mrs Nitopi on 29 July 2022 thus accords with his conversation with her. His evidence of that conversation is not consistent with a lack of legal capacity.
6. To the contrary, Mrs Nitopi then appears to have understood what Mr Deutsch explained about the proceedings and their continuance. That she did not want to run the matter because of the medical issues she had suffered and preferred her daughter to take up that responsibility, is understandable, given the option she was presented with. It is also consistent with a capacity to understand, with the assistance of a proper explanation from her legal advisers, of what Mr Deutsch raised with her, not the existence of a lack of capacity, on which appointment of a tutor depends.
7. It follows that if Mrs Nitopi suffered from delirium while being treated for a UTI and that adversely affected her legal capacity, which the evidence does not establish, she appears to have recovered that capacity by the time that Mr Deutsch spoke to her.

The balance of justice does not demand that the relief sought be granted

1. The onus fell on Ms Nitopi to establish that the balance of justice favoured the orders which she sought.
2. It is understandable that a person who has endured ill health of the kind Mrs Nitopi appears to have suffered, would prefer for someone else to conduct ongoing litigation on their behalf. But that does not establish any lack of legal capacity. If there is no legal incapacity, such a desire has to be satisfied by means other than appointment of a tutor.
3. When the psychologist's report and Mr Deutsch's evidence of his later conversation with Mrs Nitopi are considered together with the ongoing failure to produce the medical evidence which the Registrar ordered, that a just basis exists for setting aside the Registrar's orders is not apparent.
4. Time for compliance with those orders was repeatedly extended. Failure to comply by 8 June 2022 resulted in the opportunity given to show cause why the proceedings should not be dismissed for want of due despatch.
5. In the circumstances with which the Registrar was then confronted it was unsurprising that the proceedings were dismissed under r 12.7(1) of the Rules, having been on foot since 2015; that since 2021 they had again plainly not been pursued with due despatch and no evidence of incapacity having been produced.
6. While Mr Deutsch then protested and explained that he was not sure that Mrs Nitopi had the necessary capacity to give instructions and that steps were being pursued to appoint a tutor, that the Registrar's decision was open must be accepted.
7. At the final hearing of Ms Nitopi's motion the ordered evidence had still not been served, nor any explanation given for why those orders had still not been complied with. There had not even yet been any assessment of Mrs Nitopi's legal capacity undertaken. The psychologist's report did not concern such incapacity and Mr Deutsch's interaction with Mrs Nitopi was inconsistent with its existence.
8. When the proceedings were dismissed by the Registrar the position was undoubtedly that a reasonable opportunity had been given to serve the ordered evidence about Mrs Nitopi's medical condition.
9. No explanation has ever been given for the failure to comply with the Registrar's orders. Even though it is settled that service of such outstanding evidence is normally expected to accompany an application such as that made by Ms Nitopi, to have the Registrar's orders set aside: National Parks and Wildlife Service v Pierson (2002) 55 NSWLR 315; [2002] NSWCA 273.
10. While service of the report on which Mr Deutsch said he had acted would not have satisfied the Registrar's orders, it could have been served in compliance with the Court's earlier orders in respect of Ms Nitopi's motion. But for reasons which have not been explained, it was only served on the night before the adjourned hearing, when Mr Deutsch's discussion with Mrs Nitopi had still not been revealed
11. Even after his evidence was given, it was still not proposed to serve the evidence which the Registrar had ordered, relevant as that undoubtedly was to the capacity question which has been on foot now for over a year.
12. Nor did Ms Nitopi give any evidence, as she plainly could have, to explain her approach, her mother's circumstances, or even what led her to consent to act as her mother's tutor. Not even after Rothman J adjourned the hearing of her motion, providing yet another opportunity for the relevant evidence to be led, did Ms Nitopi put on an affidavit. The proper inference is that such evidence would also not have assisted the case she advanced on this application.
13. Unlike in Walton, no one has sworn an affidavit as to the circumstances in which it is claimed that Mrs Nitopi's incapacity arose or that it continues. That it is still not proposed to serve the outstanding evidence from Mrs Nitopi's doctors, which is plainly relevant to the question of her capacity, including at the time that Ms Nitopi consented to act as tutor, is thus perplexing.
14. In all those circumstances, however, I consider that it must be found that a basis for the conclusion that the view reached by the Registrar that the discretion to dismiss the proceedings for want of due despatch under r 12.7 did not have a proper foundation, has not been established.
15. The position has not altered in any relevant way since those orders were repeatedly extended, other than that there have been yet further failures to comply with the Court's orders by Ms Nitopi and even further opportunities sought to obtain the additional evidence which it is proposed to seek at the examination on 9 December, in circumstances which have not been adequately explained.
16. An application such as this will rarely be granted if the applicant has not remedied the default which led to the dismissal: National Parks at [18]. That has not occurred.
17. The conclusion urged for Ms Nitopi was that because of Mrs Nitopi's age and health problems, the consequences which dismissal of the proceedings will undoubtedly have for her and that the failure to ensure that the orders were complied with was not Mrs Nitopi's, this case falls into that rare category of cases, where the default which led to the dismissal of the proceedings is still unremedied, but orders dismissing the proceedings are to be set aside.
18. I am not satisfied that this can be accepted, given the ongoing failure to remedy the default in serving the ordered evidence, which clearly was capable of being remedied given what was submitted before Rothman J. That has also not been explained, as it needed to be.
19. In the result it must be concluded that Ms Nitopi has not met the onus falling upon her to establish a just basis for the orders which she sought.
20. To the contrary, I am satisfied that to grant Ms Nitopi's application despite the entirely unsatisfactory and unexplained course which has been pursued, would risk problems of the kind discussed in Aon Risk materialising. Namely, loss of public confidence in the legal system if this application was granted, despite being pursued as it was without either adequate explanation or justification for the continuing failure to comply with the Court's order to serve relevant evidence, or even any proposal, let alone undertaking, that the default would be remedied.

Costs

1. The usual order under the Rules is that costs follow the event: r 42.1. There was no issue that if the application failed as it has, the costs order should be made against Ms Nitopi.

Orders

1. For the reasons given, I order that the motion seeking to have the Registrar's orders dismissing the proceedings for want of due despatch set aside be dismissed and that Ms Nitopi bear Mr Nitopi's costs of the motion, as agreed or assessed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 December 2022