Olive & Anor v Johnstone

DECISION: See para [65]: ; (1) Leave to appeal granted from the decision of Curtis DCJ of 8 February 2005. ; (2) That the appeal be upheld. ; (3) That the opponent's Notices of Motion filed 15 and 29 December 2004 be dismissed. ; (4) That the respondent pay the claimants' costs of the appeal and the notices of motion, but grant to the respondent a certificate under the Suitors' Fund Act, if otherwise qualified.

CATCHWORDS: PRACTICE AND PROCEDURE - Whether relevant limitation period suspended - Limitation Act 1969 (NSW) s11 and s18A - Whether evidence absent that relevant disease or impairment of opponent's mental condition existed for a continuous period of 28 days or upwards having regard, inter alia, to his close involvement in litigation - whether nature of disability sufficient to suspend limitation period - Whether evidence sufficient in relation to physical disability to satisfy s11(3).

LEGISLATION CITED: Limitation Act 1969 (NSW) s11; s14; s18A; s52; s60 Supreme Court Act 1970 (NSW) s75A(7)

CASES CITED: Kotulski v Attard [1981] 1 NSWLR 115

Dion Leonard OLIVE (First Claimant) PARTIES: STATE OF NEW SOUTH WALES (Second Claimant) Adam Christopher JOHNSTONE (Opponent)

COUNSEL: G GAIGOS (Claimants) A C JOHNSTONE (in Person)

SOLICITORS: I V Knight, Crown Solicitor (Claimants) A C Johnstone (Opponent)

• IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40145/05 DC 3844/03

HANDLEY JA SANTOW JA TOBIAS JA

21 FEBRUARY 2006 Dion Leonard OLIVE & Anor v Adam Christopher JOHNSTONE Judgment 1 HANDLEY JA: I agree with Santow JA. 2 SANTOW JA: INTRODUCTION Leave to appeal is sought and if granted a concurrent hearing on the application of (a) the first claimant and first defendant in the proceedings, Dion Leonard Olive, and (b) the second claimant and second defendant in the proceedings, State of New South Wales (on behalf of four police officers in the service of the State of New South Wales). The opponent and plaintiff is Adam Christopher Johnstone. 3 Curtis DCJ on the application of Mr Johnstone held that the limitation period on his claimed cause of action in tort had been suspended for three years pursuant to s52 of the Limitation Act 1969 (NSW) ("the Act"). He did so on the basis of a finding that Mr Johnstone was "a person under a disability" within the meaning of s11(3) of the Act. He found that Mr Johnstone suffered from a mental disorder whereby he had a mental impairment which enured substantially since 8 (should read "18") August 1997 being the date of the alleged assault of which Mr Johnstone complains. He further found that Mr Johnstone was "substantially impeded in the management of his … affairs" during the limitation period, this being in relation to the cause of action in respect of the limitation period for which the question arose. 4 Mr Johnstone appeared for himself both before the primary judge and this Court. That has some relevance in relation to how he was allowed to present his evidence and led to some concessions being made by counsel appearing for the claimants, Mr Giagios. 5 Mr Johnstone in argument before the Court of Appeal made clear that he sought to uphold the judgment of the primary judge not only on the basis that he was suffering from a mental disorder, though he contended that it was not of a psychiatric nature, but also from a physical disability. On the latter, he acknowledged that the judgment made no reference to physical disability, having found a mental disorder. Mr Giagios accepted that the opponent sought to be placed in the same position as if he had lodged a formal notice of contention to that effect. The application for suspension of the limitation period arose because it was only on 21 August 2003 that the opponent filed his statement of claim based on the alleged assaults on 18 August 1997. Personal injury by way of trespass to the person attracts a three year limitation period; see s18A and the definition of breach of duty in s11(1) of the Act, which includes trespass to the person. "Personal injury" is defined in s3 of the Act. He was thus three years three days out of time in respect of the assaults. 6 Reference is made to a second set of proceedings in the transcript before the primary judge and earlier in a transcript before Quirk DCJ. The second set of proceedings relates to an assault said to have occurred some two weeks after 18 August 1997 and in relation to which certain medical reports and psychological reports were provided. There were three reports from a Psychologist, Dr Dragutinovic, and a report from Dr Chapman and Dr Pickering. To the extent that those reports were referred to, though not tendered, before Curtis DCJ, Mr Giagios did not object to those reports being made available to this Court as "further evidence" pursuant to s75A(7) of the Supreme Court Act 1970 (NSW). These reports were accompanied by written argument from both the claimants and the opponent as to their relevance to the issues before this Court. 7 Were leave to appeal granted, the essential grounds of appeal are twofold: (a) that the primary judge had no evidence before him that any relevant disease or impairment of the opponent's mental condition existed for a continuous period of twenty-eight days or upwards, so that in the absence of such evidence it was not, in terms of s11(3) of the Act, open to him to find that a relevant disability existed nor was there evidence upon which the primary judge could conclude that the limitation period was suspended for three years between 18 August 1997 and 18 August 2000, and (b) that the primary judge misdirected himself as to the nature of the disability that would be sufficient to suspend the limitation period, namely that it must be one that renders a person incapable of or substantially impedes the person's ability in managing his or her affairs with respect to the cause of action; and that the primary judge misdirected himself on the evidence and erred in finding that the evidence was capable of sustaining such a finding. 8 To the extent that the opponent seeks to rely upon physical disability, the issues are similar, namely whether there was evidence sufficient to base the decision in favour of the opponent in relation to physical disability so as to satisfy s11(3) of the Act.

SALIENT FACTS 9 These can be stated in uncontroversial fashion as follows: 10 In proceedings commenced in the District Court on 21 August 2003, the opponent, Adam Johnstone, claimed damages in respect of the torts of wrongful arrest, false imprisonment and assault. 11 As to those alleged torts, they are said to have been committed on 18 (and 19) August 1997. The six-year limitation period for the intentional torts which did not cause "personal injury" therefore expired on 18 August 2003 (three days before he filed his statement of claim); see s14(1)(b) of the Act. 12 The opponent alleged that four police officers in the service of the second claimant, the State of NSW, wrongfully arrested him and thereafter falsely imprisoned him. 13 The opponent alleged that the first claimant, Dion Olive, assaulted him. 14 The claimants contended in the first instance that the proceedings were not maintainable because of s18A of the Act. It lays down, as I have said, a three-year limitation period for a cause of action (relevantly) "for damages for personal injury" (the latter defined very widely in s11(1) of the Act as "any … impairment of the physical or mental condition of a person"). 15 By notice of motion filed on 3 September 2004, the opponent sought an extension of the limitation period, pursuant to s60C of the Act, relevantly applicable to damages for personal injury. 16 In the course of the hearing of the Notice of Motion on 1 and 2 December 2004 (then before Quirk DCJ), the opponent conceded that the Notice of Motion was not brought under the correct section of the Act and consented to its dismissal. 17 Quirk DCJ refused the claimants' application to dismiss the proceedings and instead granted the opponent leave to file another Notice of Motion to extend the limitation period. 18 By Notice of Motion filed on 15 December 2004, the opponent sought an extension of the six year limitation period for "an action founded in tort" under the Act (s14(1)(b)) and under Pt3 r2 DCR. 19 By amended Notice of Motion filed 23 December 2004, the opponent sought a further order that, in the event that his application to extend the limitation period for an action founded in tort was unsuccessful, the limitation period be extended pursuant to the personal injury provisions in s60G of the Act. That application was disallowed by Curtis DCJ (as being an abuse of process, on the basis that Mr Johnstone had expressly waived such reliance before Quirk DCJ). 20 The appeal relates to orders made by Curtis DCJ in relation to the 15 and 23 December 2004 Notices of Motion, finding that the running of the limitation period had been suspended between 18 August 1997 and 18 August 2000 and ordering that costs of the motion be costs in the cause.

RELEVANT LEGISLATION 21 It is convenient that I set out the sections of the Act primarily relevant. Section 52 Disability

(1) Subject to subsections (2) and (3) and subject to section 53, where: (a) a person has a cause of action,

(b) the limitation period fixed by this Act for the cause of action has commenced to run, and

(d) the running of the limitation period is suspended for the duration of the disability, and (e) if, but for this paragraph, the limitation period would expire before the lapse of three years after: (i) the date on which the person last (before the expiration of the limitation period) ceases to be under a disability, or (ii) the date of the person's death,

(whichever date is the earlier), the limitation period is extended so as to expire three years after the earlier of those dates. (2) This section applies whenever a person is under a disability, whether or not the person is under the same or another disability at any time during the limitation period…"

Section 11(3) (3) For the purposes of this Act a person is under a disability: (a) …

(b) while the person is, for a continuous period of twenty-eight days or upwards, incapable of, or substantially impeded in, the management of his or her affairs in relation to the cause of action in respect of the limitation period for which the question arises, by reason of: (i) any disease or any impairment of his or her physical or mental condition…

The first instance judgment 22 The reasoning of the primary judge is challenged essentially on the basis set out at [6] above. One element of this challenge is that there was no sufficient evidence that the opponent suffered from any impairment of his mental condition. This was apart from the contention that it had not been shown that such a condition as he had substantially impeded the management of Mr Johnstone's affairs in relation to his cause of action. 23 Essentially the reasoning of the primary judge proceeded as follows: 24 He records evidence that after the events of 18 August 1997, Mr Johnstone attended a psychologist, Dr Dragutinovic in respect of post-traumatic stress disorder, as well as Dr Champion and Dr Wenzell in relation to mental disabilities [14]. 25 He then states that the Crown conceded that, while it was not determinative, there was evidence which would permit an inference that Mr Johnstone suffered from a mental disability [14]. 26 He then records that Mr Johnstone gave evidence that he has been effectively homeless since 18 August 1997 [14]. 27 He concluded that "in the conduct of his case and in the giving of his evidence it is apparent to me that Mr Johnstone does suffer from a mental disorder", it not being necessary to affix a particular description to that mental disorder [14-15]. 28 Reliance was also placed by the primary judge on what he described as "the disordered life" lived by the opponent, resulting from his mental disorder [15]. 29 The primary judge found that the opponent did have "a mental impairment by reason of mental condition" [sic] and that the mental condition had enured substantially since 18 August 1997 [15]. 30 On the question of whether the mental condition found "substantially impeded" the management of his cause of action, the Crown at first instance submitted that the primary judge could not be so satisfied because: (a) Mr Johnstone has conducted himself for some 20 court appearances over five years, in relation to criminal charges (T, 41.52) involving appeals to the Court of Appeal and the High Court and had done so upon his own legal research and without professional assistance [15]. (b) Over the six year period, Mr Johnstone instructed and withdrew instructions from solicitors. 31 However, the primary judge did not accept the first submission because: (a) Mr Johnstone has been unsuccessful in all his appearances, (b) In conducting the present matter, Mr Johnstone put submissions which were not rationally available upon the legislation and court rules [15-16]. 32 In relation to the second submission, the primary judge concluded that the fact "that he instructed solicitors does not necessarily imply that he was not impeded in responsibly co-operating with those solicitors in the management of his cause of action. That he withdrew instructions is consistent with a disordered appreciation of his own interests" [16]. 33 He concluded (correctly in my judgment), that it was irrelevant that his statement of claim was issued only three days out of time [16]. 34 The primary judge found that the opponent was substantially impeded in the management of his affairs during the limitation period [16]. I observe that he did so with no psychiatric or other reports before him, solely on the basis of the matters of observation and procedural history summarised above. 35 In relation to the period of suspension of the limitation period the primary judge observed that: (a) there was no evidence that the opponent was disabled by reason of his mental condition before 18 August 1997, but this was not improbable, and (b) There was no evidence that any period elapsed between 18 August 2003 ([sic] he clearly meant 18 August 1997) and the presentation of his mental disability [17]. 36 The primary judge considered it sufficient that he find the limitation period suspended for a period of three years, the suspension commencing at what he referred to as the midway point between the alleged tort and the date of expiration of the limitation period. He in fact suspended the limitation period between 18 August 1997 and 18 August 2000, that is to say up to that mid-way point. (As it happens this would not have assisted the opponent in relation to his claim in assault because he needed a suspension of three years and three days.)

DISPOSITION 37 The claimants' case was essentially based on the following propositions: (a) There was no evidence of the opponent's mental condition and it was not open to the judge to make findings based on his own assessment of the opponent as a witness [6]. (b) There was no evidence upon which the judge could conclude that the limitation period was suspended for three years [6]. (c) The opponent did not discharge his onus of proving that he was disabled for the purposes of s11 and therefore the limitation period was not suspended pursuant to s52 [7]. (d) Even if the judge was entitled to find that the opponent was suffering from a mental condition, the condition did not render the opponent incapable of, or substantially impede his ability to manage his affairs in relation to his causes of action [7]. (e) In particular, the judge erred in his findings as to the significance of the opponent having given and withdrawn instructions from solicitors when: (i) The evidence demonstrated that the matter was in the hands of solicitors and counsel until it was realised that the limitation period had expired before proceedings had been commenced. (ii) The change of solicitors was brought about by the opponent's dissatisfaction with the firm [7-8]. 38 I do not agree that there was no evidence as to the opponent's mental condition and indeed the concessions made, and properly made, by Mr Giagios in argument point to the contrary. 39 Thus in argument Mr Giagios referred to "medical evidence served on us in the other matter" (T, 43.52) (the other matter was the application for extension of time in relation to an alleged assault occurring some two weeks after 18 August 1997). 40 The concessions that Mr Giagios then made are best set out verbatim below: "GIAGIOS: There are two reports. Originally we were served with the report of Dr Pickering in the plaintiff's case and whether the plaintiff agrees with that or not, Dr Pickering's view was that there were features in the plaintiff's presentation that could allow him to diagnose a paranoid personality disorder. But in view of, to put it in words similar to the words used by Dr Pickering, the guarded or defensiveness of the plaintiff's presentation, he couldn't specifically identify the criteria. Therefore he entertained the thought that there's a paranoid personality disorder but wasn't prepared to commit to it." (T, 44.22-.34)

"PLAINTIFF: There is definitely a disabilities there, both physical and mental, it's just I've relied personally on the physical to help me out with the government. I've relied on the physical aspects rather than go and say I'm a psychiatric patient which I'm not. I've got a psychological injury, nothing more than that.

GIAGIOS: In the other procedure both are pleaded physical and psychological. I think from memory it was Dr Champion who saw the plaintiff on behalf of my instructing solicitor some years ago, who was satisfied that the diagnostic criteria for a paranoid personality disorder were present. Since that time your Honour, my client has become aware of other matters in the plaintiff's background, which has necessitated the updated report. If I can infer from the first report based on what is being proposed to be given to expert [sic], we'll probably nail that." (T, 44.46-45.5) 41 I pause here to note that the transcript references (T, 44.46-45.5) refer to reports of both Dr Pickering and Dr Champion which describe "a paranoid personality disorder". However, the judgment refers rather to the report of a psychologist Dr Dragutinovic diagnosing post-traumatic stress disorder, and to the plaintiff's attending Dr Champion and Dr Wenzell "in relation to mental disabilities" [14]. However the precise labelling is not relevant and indeed the primary judge did not describe that mental disorder; [15]. In any event in the transcript before Curtis DCJ, reference is made by Mr Johnstone to his having "plenty of documentation in relation to psychological injuries. They say I am suffering from post-traumatic stress disorder"; T, 43.35-.37. Reference is then made to the reports as being "used in the other matter" but "we certainly have a number of those reports"; T, 43.41-.43. These reports were said to have been given to the Crown. 42 Those reports have now been furnished to this Court pursuant to the concession referred to earlier by Mr Giagios. 43 I turn now to the two critical questions to be answered were leave granted.

First, did the judge err in finding that the limitation period should be suspended for three years? 44 The judge considered it "sufficient" that the limitation period was suspended for three years from 18 August 1997 to 18 August 2000 (WB, 17). The claimants contended that there was no evidence before the primary judge establishing the duration of the opponent's mental condition. 45 However, the opponent gave evidence that his psychological injury resulted from the incidents in August 1997 (WB, 51.3). Three psychological/psychiatric reports were also tendered in the Court of Appeal. Dr Dragutinovich was of the opinion that the onset of the opponent's mental condition occurred in August 1997, while Drs Pickering and Champion were of the opinion that the opponent had been suffering from a pre-existing mental condition, which was exacerbated by the incidents allegedly occurring in August 1997. All three doctors were of the opinion that the opponent's mental impairment was continuing as at the date of their reports (8 March 2003, 11 April 2002 and 5 March 2003 respectively). 46 I would accept that the primary judge made no appellable error in finding a the suspension for three years within the specified dates if suspension were otherwise established. This is so, though there was little if any evidence before him as to the duration of the opponent's mental condition. The opponent's mental impairment persisted from August 1997 until at least March 2003. In any case, given that the opponent filed his statement of claim only three days out of time, the judge would only have needed to suspend the limitation period for the minimum suspension period of 28 days to allow the opponent to bring proceedings for wrongful arrest and false imprisonment.

Second, did the opponent's mental impairment substantially impede his management of his affairs in relation to the causes of action? 47 This, to my mind, is the real issue. 48 The claimants submitted that the opponent had not been substantially impeded in managing his affairs in relation to these causes of action during the limitation periods. 49 First, the opponent was able to conduct his own defence in the Local and District Courts on some twenty or more criminal charges and had conducted appeals to the Court of Criminal Appeal and the High Court. Although the latter two appeals were dismissed, it appears that, contrary to the finding of the primary judge (WB, 15-16), the opponent was otherwise successful in his defence of all but two or three of the charges (WB, 39.53-.59; WB 46.20). The claimants submitted that this demonstrated that the opponent was not a person who could not manage his own affairs. 50 The opponent also successfully applied before Balla DCJ for an extension of the limitation period in relation to another civil matter (a personal injury matter with a three year limitation period), arising from an incident alleged to have occurred on 27 August 1997. In addition, Balla DCJ gave judgment on 2 May 2003, some three and a half months before a six year limitation period would have expired (WB, 57.01-.05). 51 In relation to the opponent's ability to manage his affairs in respect of the present causes of action, the claimants submitted that the fact that the opponent had conferences with barristers, swore affidavits, instructed solicitors, and withdrew instructions when he was dissatisfied, demonstrated that there was no impediment to his ability to manage his affairs. On this issue, the primary judge found that the fact that the opponent instructed solicitors did not imply that he was not impeded in responsibly co-operating with those solicitors and that the fact that he withdrew instructions was consistent with a disordered appreciation of his own interests (WB, 16). 52 Indeed, there was some evidence before the primary judge that the opponent's judgment in relation to the solicitors he instructed may have been affected by his mental condition. For example, he gave evidence before the primary judge that he "got lawyers" but they "let [him] down" because "they were being nice to the police officer… who flogged [him]" (WB, 50.13-.20). He also gave evidence in cross-examination before Quirk DCJ (transcript tendered by the claimants) in relation to what happened after the hearing before Balla DCJ: "Q: After that case had been dealt with in May 2003 you were able to give instructions to solicitors to commence these proceedings? A: I attempted a number of options… Terry McGill was the first. He found them too big, the two cases together too big for him. I further went to Russell McClelland and Brown who fumbled around for a number of months.

Q: You weren't satisfied with that? A: I wasn't satisfied, no.

Q: So you took action? A: Well, I was actually insulted by one of the senior staff, then I left" (WB, 69:20-69:34) 53 And see also Transcript of proceedings before Quirk DCJ, 1 December 2004, at 18. 54 It is not entirely clear from this evidence why the opponent withdrew instructions in this instance, but this evidence (and the evidence quoted above) is arguably consistent with the primary judge's finding that the opponent was impeded in responsibly co-operating with his solicitors and had a disordered appreciation of his own interests. Indeed, counsel for the claimants conceded before Quirk DCJ that "it has always been our concern that Mr Johnstone didn't fully understand the situation he is in…" (WB, 83.48-.50). 55 However, earlier the opponent gave other evidence under cross-examination which suggests more strongly that he withdrew instructions from his solicitors because he was dissatisfied with them. When he was asked when he first instructed solicitors to commence these proceedings, he answered: "Well, I just walked in Terry McGill's office and went from there. I went to Terry McGill. I ended up with Russell McClelland Brown and then I ended up splitting with them because they failed to file, they had the statement of claim, they took months to get it produced. I ended up going with Trevor Wells and signing a contract. He has been very good with me and has made every effort to satisfy every requirement. The document was out of his control at the time that he was in. He was responsible for it because he was canvassing it and due to that fact he has asked me to file it and make the applications required if I wish to go further."

(Transcript of proceedings before Quirk DCJ, 1 December 2004, at 23.) 56 When the opponent was asked why he had not filed these proceedings at the same time as he had commenced his other civil action, in September 2001, he replied: "At that point in time we were dealing with Russell McClelland Brown who pretty much failed, they were quite poor and held up the statement of claim for a number of months…

When I put pressure on these guys to get this thing up and running they really weren't up to it and one of the main solicitors there lost it and virtually told me he wasn't interested so I had to go and find other solicitors without any notice, even with an agreement signed they walked out of it."

(Transcript of proceedings before Quirk DCJ, 1 December 2004, at 24-25.) 57 There is strong evidence to suggest that the reason that the statement of claim was filed three days after the expiration of the limitation period was unrelated to the opponent's mental condition. The relevant section of the cross-examination of the opponent before Quirk DCJ (transcript tendered by the claimants) proceeds as follows: "Q: And from those documents and from what you told them [Wells solicitors] they were able to put together a statement of claim? A: That's correct.

Q: And then do I understand what you said yesterday in evidence was that Mr Wells' firm wasn't prepared to file this document? A: They were prepared to file it originally.

Q: And then you took it upon yourself to file it? A: They were two days late receiving it back from a barrister and he wasn't aware of that until I pointed it out, questioned it.

Q: What did you point out? A: I questioned whether or not it was pass [scil past] the expiration period.

Q: You knew that around about 17 or 18 August 2003 the six years were up? A: We were having meetings in the other matter as well, the same time and it came up in that. He became aware that he was two days out and became quite shocked and distressed and - -

Her Honour: Q: This is Mr Wells? A: This is Mr Wells and said, look you are going to have to file this and if there is a problem you can sue me, that is actually what he said.

Giagios: Q: Mr Wells became aware of the limitation problem because you pointed it out to him, is that what you are saying? A: No, I think Trevor [Wells] might have brought it up at that point in time, I am not too sure.

Q: You might have been surprised? A: I was freaking, I was stressed.

Q: You understood what was going on? A: Yes, I understood that.

Q: Because you have already been through a limitations motion, you knew all that? A: Just recently, yeah, just recently. I was stressed, I was greatly stressed by it, the fact that it was two days late.

Q: Can I suggest to you, sir, that your conduct in the six years and three days from when the cause of action is said to arise until the filing of the statement of claim demonstrates no significant impediment in your ability to manage your affairs insofar as this claim is concerned? A: I have put a huge amount of work into this. I have gone and researched the law, as far as the case is concerned I am tip top, I have that organised. The only reason it is not filed is because lawyers and barristers have held it up on me and made the mistake of being two days out so I have had to file it myself and follow it up. I know the case is good. I have been told that by the Law Society."

(WB, 70.20-71.22; see also Transcript of proceedings before Quirk DCJ, 1 December 2004, at 20-21.) 58 I would accept the claimants' submission that the opponent's reaction when he realised that his statement of claim was two days late indicates that he readily appreciated the significance of this omission. 59 The opponent also gave evidence of having done extensive research into his case. He said that he had "memorised" a lot of the relevant law. He said that after conducting his criminal cases he was "running hot", "comparing transcripts and proving points" [WB, 71.38-72.06]. The cross-examination also established that he used a colour-coding system to organise his evidence, that he knew what evidence he needed to get (such as transcripts), that he made all the relevant applications through the courts (for example, he filled in the appropriate forms and filed documents), and that he understood that someone in his position could have court fees waived and did have them waived (WB, 72.23-74.24). 60 One of the bases upon which the primary judge concluded that the opponent had been substantially impeded in the management of his affairs was that he put submissions which were not rationally available upon the legislation and court rules which he had before him (for example, he applied for an extension of the limitation period under the wrong section of the Act). However, I do not consider that simply misunderstanding the law and making mistakes is sufficient to demonstrate that the opponent was substantially impeded in the management of his affairs by reason of his disability. A reasonable person without any impairment might equally make such mistakes. 61 This is consistent with what Slattery J said in Kotulski v Attard [1981] 1 NSWLR 115 (at 118): "I am of opinion that it is a relevant matter, in the consideration of the question raised by the notice of motion, to have regard to how a reasonable person without any impairment would conduct himself in the management of his affairs. A reasonable person without impairment would be able to reason normally about the matters relevant to a potential cause of action, to understand and consider advice and to give instructions about any action." 62 I would accept the claimants' submission that a reasonable person without an impairment would likely conduct himself or herself in the same way in which the opponent conducted himself, that is, he or she would likely retain solicitors and counsel and terminate the retainer of solicitors whom he or she believed were not acting diligently. 63 The opponent gave evidence before Quirk DCJ that he was able to understand and consider advice and give instructions about his cause of action (WB, 68-69). There was no evidence before the primary judge that the opponent was not able to reason normally about matters relevant to his cause of action. Neither in these proceedings nor in the other proceedings has a tutor been appointed.

OVERALL CONCLUSION AND ORDERS 64 In light of all the evidence, I conclude that the primary judge erred in finding that the opponent had been substantially impeded in the management of his affairs in respect of these causes of action. With respect, he failed to give proper weight to the capacity Mr Johnstone had demonstrated in conducting his litigious affairs and his evident appreciation of the effect of a limitation period. The opponent has in fact demonstrated considerable ability in the management of his legal affairs, despite his disordered and itinerant life. 65 Accordingly, I would propose orders as follows: (1) Leave to appeal granted from the decision of Curtis DCJ of 8 February 2005. (2) That the appeal be upheld. (3) That the opponent's Notices of Motion filed 15 and 29 December 2004 be dismissed. (4) That the respondent pay the claimants' costs of the appeal and the notices of motion, but grant to the respondent a certificate under the Suitors' Fund Act, if otherwise qualified. 66 TOBIAS JA: I agree with Santow JA. **********

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