P v R

P v R - [2003] NSWSC 819 - NSWSC 2003 case summary — Zoe

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P.29/01 - P v R JUDGMENT 1 In these proceedings, the plaintiff seeks (against the strenuous opposition of the defendant) a declaration that the defendant is incapable of managing her affairs, an order that the estate of the defendant be subject to management under the Protected Estates Act 1983 and an order that management of the estate be committed to the Protective Commissioner. Also sought, in addition to an order for the payment of costs out of the estate, is an order dispensing with the requirements of Part 76 rule 11(b) of the Supreme Court Rules. 2 The defendant is a woman of 67 years. In June 1979, she became the victim of a traffic accident in which the car she was driving was struck from behind while stationary at an intersection. In 1985, the defendant, as plaintiff, instituted proceedings in the District Court claiming damages in respect of injury sustained in that accident. In early 2000, the plaintiff became her solicitor in those District Court proceedings. She had previously been represented by several other solicitors in succession. 3 As they currently stand, the District Court proceedings are confined to the issue of damages, a finding on liability favourable to the plaintiff (i.e., present defendant) having already been made. In relation to damages, the defendant has been advised by her legal advisers that it is in her interests that there be placed before the District Court evidence of deterioration of her mental state after the accident, this being a foundation for submissions that damage suffered by her is not limited to back and other physical injuries but extends also to psychological impairment. These background matters were outlined as follows in the judgment of Hodgson JA in R v P (2001) 53 NSWLR 664: "The appellant was involved in a motor accident in 1979. She brought District Court proceedings for injuries arising out of that accident. The hearing of those proceedings commenced in August 1990 and continued in February 1991. The question of liability was determined in her favour, and the matter then continued as an assessment of damages.

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The respondent arranged for further examinations of the appellant by Dr Bell and by another psychiatrist Dr Robert Lewin. Dr Bell provided further reports dated 20 March 2001 and 10 April 2001, and Dr Lewin provided reports dated 8 March 2001 and 10 April 2001. The appellant instructed the respondent not to serve those reports, giving rise to the present proceedings." 4 After the events related in this part of the judgment of Hodgson JA, Windeyer J made, on 6 August 2001, an interlocutory order appointing the Protective Commissioner to be receiver and manager of the defendant's estate until further order, with authority limited to the conduct of the District Court proceedings and on the basis that two reports of psychiatrists that had been obtained for the purposes of those proceedings should not be served. Windeyer J's order was the subject of appeal to the Court of Appeal (see R v P, above). The appeal was dismissed. 5 By direction of the Chief Judge in Equity made on 20 December 2002, the plaintiff's application for a final order in respect of management of the defendant's estate was listed for hearing by me on 16 and 17 April 2003. On the first of those days, the defendant sought an adjournment, which I granted. She produced a medical certificate stating that she was suffering from Lyme disease and would be unfit for "work" for sixty days. When the matter came back before me on 10 June 2003, the defendant again sought an adjournment, as well as an order that she be medically examined. Those matters took up the entire day and, on the following morning, I dismissed both applications for reasons that I then published. I then proceeded to hear the proceedings on Wednesday and Thursday, 11 and 12 June 2003, at which point further time, estimated to be somewhat less than one day, was still required. Because other matters were scheduled to be heard by me on Friday, 13 June, I stood this matter over to Monday, 16 June. On that day, the defendant sought a further adjournment on the grounds of ill-health. On that occasion she produced a medical certificate saying that she was suffering from rickettsial infection. She was distressed and complained of chest pains in court. I suspended proceedings until she had regained her composure and then adjourned the further hearing of the matter to Friday, 11 July 2003. On that day, the hearing continued and evidence was completed. There was insufficient time, however, for the defendant to address. I therefore allowed a period of three weeks for her to file written submissions. The period thus allowed was until 1 August 2003. She sought an extension of time and I made a direction in chambers on 31 July 2003 fixing 11 August 2003 as the deadline for her submissions. When nothing was received, I had my Associate write to the parties on 20 August 2003 saying that I proposed to reserve judgment on 27 August 2003, whether or not submissions of the defendant had then been received. The defendant sent me a letter dated 25 August 2003 to which I shall refer later. I reserved judgment on 27 August 2003. 6 The relief sought by the plaintiff is based in s.13(1) of the Protected Estates Act 1983: "Where the Court is satisfied that a person is incapable of managing his or her affairs, it may make a declaration to that effect and order that the estate of the person be subject to management under this Act." 7 The plaintiff's primary concern is with the conduct of the personal injury proceedings in the District Court. He is of the view that the defendant is incapable of giving rational and informed instructions for the conduct of those proceedings in her own best interests. It was that apprehension that prompted the application for interim relief granted by Windeyer J on 6 August 2001. There is, however, no provision in the Act for final orders which are of limited effect or relate to specific aspects of a person's affairs. Section 13 is solely concerned with the question whether a person "is incapable of managing his or her affairs", the reference to "affairs" being, clearly enough, a reference to the whole of the person's affairs or affairs generally. 8 The criteria encompassed by the words "incapable of managing his or her affairs" were elaborated by Powell J in decisions on virtually identical words in predecessor legislation. In PY v RJS [1982] 2 NSWLR 700, his Honour said: "It is my view that a person is not shown to be incapable of managing his or her own affairs unless, at the least, it appears: (a) that he or she appears incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of man; and (b) that, by reason of that lack of competence there is shown to be a real risk that either: (i) that he or she may be disadvantaged in the conduct of such affairs; or (ii) that such moneys or property which he or she may possess may be dissipated or lost (see Re an Alleged Incapable Person ); it is not sufficient, in my view, merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner: see In the Matter of Case (1915) 214 NY 199, at p 203, per Cardozo J."

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(See also DW v JMW [1983] 1 NSWLR 61 ; CF v TCML [1983] 1 NSWLR 138.) 9 Under the present legislation, the cause of the incapacity is irrelevant. There is no requirement that it be the product of mental illness or mental infirmity (compare the provisions of the Mental Health Act 1958). The question for the court goes to incapacity alone, regardless of its cause, although the fact that the question relates to a person's capacity to manage the person's affairs means that the ability to recognise and protect one's own interests plays a central part in the inquiry, with the result that incapacity is most likely to be found in circumstances of mental illness or obvious inability to function, in relation to physical and financial matters, as a self-caring member of the community. 10 The defendant is a single person. She lives alone in circumstances to which I shall turn presently. She says that she is one of ten surviving siblings and has more than forty nieces and nephews. She was previously married and has no children. The defendant placed before the court affidavits sworn by eight of her siblings. I shall come back to them. 11 The defendant, in conducting her own case in opposition to the grant of the relief sought by the plaintiff, spoke at great length at various stages of the proceedings, including when cross-examining witnesses. She returned constantly to a number of matters of grievance and deep-seated pre-occupation, many of them concerning her house located in a suburb of Sydney. These matters are also covered at length in an affidavit filed in court by the defendant on 11 June 2003. Accounts of them were given again and again in the course of the hearing. It is appropriate to relate these matters briefly, omitting some details to which the defendant may attach great weight but which, from the perspective the present inquiry, are of no real importance. 12 In November 1995, a large tree standing within the boundaries of the defendant's neighbour's property fell to the ground in such a way that its branches and most of its trunk came to rest in the defendant's backyard, with the upper branches against the house. This episode marked the beginning of a series of events which is still incomplete. Disputes developed between the defendant and her neighbour in relation to the tree and associated matters to do with their dividing fence. The police attended on one occasion and, according to the defendant, restrained her with excessive force. That was the basis for two legal actions subsequently launched by the defendant against police officers. She initiated both a private prosecution in the Local Court and civil proceedings in the District Court. The prosecution was dismissed by a magistrate. The defendant appealed to this court. The appeal is apparently undetermined at this point. The civil proceedings initiated by the defendant have been stayed because of her non-compliance with an order of the District Court that she submit herself for psychiatric examination. 13 The episode involving the tree and its aftermath have, according to the defendant, led on to systematic harassment of her by her neighbour and the police. So far as the police are concerned, the defendant believes that they are waging a campaign against her. She referred to an incident when police officers supposedly entered her house through a barricaded door early one morning and, when she confronted them, said that they had come to see whether she was all right; yet, according to her, they had not called out before entering. She also referred to an incident when police in a car, with siren sounding, pulled over a suburban bus on which the defendant was travelling and forced her to get off and accompany them to a police station. She has also found inside her house three audio tapes which, according to their labelling, are police tapes of an interview at another suburban police station in 1996 in connection with a suspected murder. She says the content of the tapes is consistent with that description. She produced tapes in court. Another matter involving the police concerns the defendant's attendance at a police station to report an alleged assault upon her by one of the several solicitors who previously acted for her in her personal injuries case in the District Court. According to the defendant, the police did not take the complaint seriously after phoning the solicitor. 14 Some of the defendant's grievances about the police have been made the subject of complaints by her under police integrity procedures and to the Ombudsman. Those authorities have not provided the redress, relief or remedy to which the defendant considers herself entitled. This, it appears, has consolidated the defendant's belief that some untoward influences are arrayed against her. 15 The defendant believes that the neighbour (a woman) is engaged in systematic harassment. The defendant refers to the neighbour as "the ferret" and "the golden retriever". This is because of the defendant's belief that the neighbour regularly enters the defendant's house and removes items, mostly papers and photographs that the defendant considers of importance to various legal proceedings in which she is involved, including the present proceeding and the two involving the police to which I have referred. Curiously, the defendant says that the neighbour also sometimes enters the house to replace things previously taken. Events of this kind were mentioned by the defendant as having happened during the hearing before me. There was also reference to an alleged theft of her documents by staff members at a library she attends for the purpose of legal research undertaken for her various cases. 16 The neighbour's unauthorised and clandestine visits to the defendant's house are not, in the defendant's perception, limited in purpose to the removal and replacement of items such as documents and photographs. The defendant has referred also to occasions on which the neighbour has moved the hands of her clocks forwards then, on later occasions, moved them backwards. The defendant also believes that the neighbour, during one unauthorised visit, damaged the defendant's electric stove so that it would not work. A few weeks later, the defendant awoke at 4 o'clock one morning to find the stove element glowing red hot and damaging the paintwork, from which she surmised that the neighbour had entered the house again, repaired the stove and turned on the element to the highest setting. While the stove was not working, the defendant had the use of a microwave oven lent to her by her sister. One day, she found this to have been inexplicably damaged. This too she attributes to the neighbour, as she does removal of the leg of an electric frypan which was a fall-back when both the stove and the microwave were out of action. 17 The defendant's house is unfinished, although built some thirty or more years ago. The defendant says that this state of partial completion accords with approvals given at the time the house was built and is accepted by the local authority. This may well be so and, for present purposes, I am content to assume that it is. 18 But the house has other problems. A number of the windows that were glazed are now broken. The defendant says that they have been broken from the inside because the glass fragments are lying outside. In addition, ridge capping on the roof has been removed and the roof lining cut. Also, a pipe or pier supporting a 45 ft concrete balcony has, the defendant says, been sawn through near ground level, with the result that the balcony is partly unsupported, is in danger of falling and has developed severe cracking. These acts of apparent vandalism in relation to the windows, roof and balcony support are considered by the defendant to be the work of her neighbour. 19 The tree which fell into the defendant's backyard more than seven years ago is still there. It is apparently infested with ticks. On two occasions, the defendant made applications to me for adjournments on the basis of certificates from doctors stating that she is suffering Lyme disease and rickettsial infection, both of which are transmitted by or contracted from ticks. There is a possibility - indeed probability - that the continued presence of the fallen tree against the wall of her house has caused the defendant to contract these diseases. 20 The defendant's sole source of income is a Centrelink pension. She used to have the pension paid into an account with the National Australia Bank but some years ago terminated that arrangement and, I think, her relationship with the bank. She does not now have a bank account. Her pension cheques are sent to her by post. She keeps a post office box which she clears at regular intervals. She says she cannot have mail sent to her home because her neighbour would steal it. 21 The defendant referred to her practice of endorsing cheques to people (such as lawyers) to whom she owes money. Sometimes, however, she needs cash. She obtains this by means of a special arrangement with the Reserve Bank (on which the pension cheques are drawn) under which she can take cheques to the Reserve Bank in Sydney and cash them. 22 The defendant's practice, as described by her, is to keep pension cheques at home until needed. She reports, however, that pension cheques have been stolen from her house on several occasions (she says by her neighbour), necessitating approaches by her to the Centrelink office to have the cheques replaced. She says that replacement is always eventually forthcoming, a circumstance she sees as supporting her claims that the cheques have been stolen. 23 Brief reference should be made to two other grievances the defendant bears. One involves an employee of the Crown Solicitor's Office who, in that capacity, worked on the matters involving the litigation initiated by the defendant against police officers. Because she is aware of contact between that employee and the neighbour (a witness for the defendants in those proceedings) and of a record of a visit by the employee to the suburb where the defendant and her neighbour live, the defendant believes that the employee has assisted the neighbour in removing important papers from the defendant's house. The other grievances involve a large Sydney hospital at which the defendant was employed in the 1970s and from which she was dismissed. She says that her dismissal came about because she had raised genuine concerns about the treatment of certain patients, some of whom died as a result of incorrect medication and other shortcomings on the hospital's part that she sought to expose. 24 The defendant saw these proceedings as the occasion for the truth of her various assertions involving the police, the neighbour, the employee of the Crown Solicitor's Office and the hospital (among others) to be tested. To that end, she obtained from a Deputy Registrar the issue of various subpoenas to produce documents and sought the issue of even more. Some persons and organisations became the recipients of several subpoenas. I set aside some of the subpoenas that had been issued and declined to grant leave for the issue of others. I did so for the simple reason that the truth or otherwise of the defendant's assertions and beliefs regarding the matters I have mentioned (and a number of others she considers important) is not in issue in these proceedings. I shall explain what I mean. 25 It may be that everything the defendant alleges actually happened and that all her various allegations would, upon a full investigation, be shown to be true. It is also possible that, given the apparently bizarre nature of many of the allegations, a significant part of what she said would be found to be untrue, with the defendant having invented some things, either consciously or unconsciously. But the true facts are quite beside the point in these proceedings, except to the extent of certain core matters pertaining to management of the defendant's affairs. 26 The task of the court, upon an application such as this, is to make a judgment as to the capacity and ability of the person concerned to cope with the ordinary routine affairs of living, particularly so far as they concern the person's property. This is a somewhat shorthand version of the tests laid down by the authorities to which I have already referred. The point to be emphasised is that the requisite judgment is to be made in the light of objective physical facts concerning the relevant person's property, money and other assets and the way the person is able to look after them. If there is a lack of capacity, the reason for it does not matter. If the person is subjected to theft, vandalism and victimisation, the causes of those events is unimportant: the court is interested in whether the person is in a vulnerable position and cannot deal with such matters in a manner that is conducive to the person's own welfare. Likewise in relation to matters of physical environment such as a tick infested tree adjacent to the person's living quarters and a destabilised balcony: how those matters came about and whose responsibility it may be to rectify them are unimportant. The question again is whether the person can deal with those matters in a manner that is conducive to the person's own welfare. 27 I have not so far mentioned matters relevant to the history and conduct of the personal injury proceedings in the District Court. I do not intend to give a step by step account of the proceedings. Such a history is contained in my judgment of 11 June 2003 on the question of adjournment. It is sufficient to say that, as already noted, the question of liability was determined in favour of the plaintiff in those proceedings (defendant here) some time ago and that it is the issue of damages that remains to be decided by the District Court. Trial of that remaining issue has been deferred on many occasions and is currently scheduled for later this year. Further delay in already protracted proceedings may well jeopardise prospects of being able to pursue the matter at all. A useful summation of relevant background is provided in a passage in the cross-examination of the present plaintiff by the defendant which should be quoted in full: "Now, since 10 February 1990 you have tried on countless occasions to instruct solicitors to take over the carriage and conduct of your matter and every time you did there was a problem.

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After 20 June 1979 that changed. It changed. And it changed because something happened and there is not organically demonstrated pathology that we can rely upon, it is more subtle, whether you want to believe it or not. And if those reports are not presented so the District Court has an opportunity to consider all of the relevant evidence, a judge is going to be left with no alternative because there is going to be absolutely nothing to contradict the opinions expressed by the GIO doctors, as I said Smith, Shand, Wendy Roberts, and that's not right. HIS HONOUR: Q. When you refer to those reports you refer to the reports of Dr Bell and Dr Lewin? A. Exactly your Honour." 28 Put simply, the defendant is in a position, in relation to the District Court proceedings, where the solicitor acting for her advises (and is supported by both senior and junior counsel) that she has very good prospects of recovery of substantial damages on the basis that the 1979 accident caused psychiatric injury in the form of personality disorder, with evidence in support of that case being available from the several medical witnesses referred to; and that if the case is not run on that basis, she will recover much more modest damages for physical injuries only. The defendant, for her part, is implacably opposed to the District Court case being run in the way her lawyers advise - hence the quite odd passage in the statement of particulars quoted in the fourth last paragraph of the extract from the judgment of Hodgson JA at paragraph [3] of these reasons. There is a reference to damage by way of psychological or psychiatric impairment followed by the curious statement that the victim, whose injuries are being particularised for the purposes of her claim, denies such injury. That cannot be a sound basis on which to conduct a proceeding in which damages for personal injury are sought. 29 Having mentioned part of the cross-examination of the plaintiff, I should refer to it more fully. The defendant cross-examined the plaintiff for almost four hours. I eventually terminated the cross-examination. I did so because it had by then become abundantly clear that the questions were wholly and solely devoted to a quite irrelevant issue, namely, the quality of the plaintiff's performance as the defendant's solicitor in her District Court action. She questioned him closely about a range of matters, including why one particular word was underlined in a draft document that was obviously marked with underlining to show changes from the previous draft and why an obvious typographical error had been carried forward from one draft to the next. A range of other perceived shortcomings and supposed non-adherences to instructions was also canvassed until I ended the cross-examination. The plain fact is that questions about the plaintiff's performance as the defendant's solicitor are quite beside the point in these proceedings, although I would add that nothing came out in the cross-examination that would make me think that the plaintiff acted otherwise than with reasonable competence and in his client's interests. These proceedings are not about whether the plaintiff should be the defendant's solicitor in the District Court action. If a protective order is made, it will be for the Protective Commissioner to say which solicitor and counsel should have the carriage of that action. The issue here is simply as to the defendant's ability to look after her own interests and manage her own affairs. 30 Part of the defendant's cross-examination of the plaintiff concentrated on a photograph that the plaintiff had had in his office at premises he formerly occupied. The defendant had made a great deal of this photograph on several occasions at earlier stages in the proceedings. She had even subpoenaed its production. The answer was that there was nothing to produce. She believed this to show some conspiracy. The photograph was said by the defendant to be of a client of the plaintiff's together with a member of the senior bar (to whom I shall refer as "the SC"). The defendant had it firmly in her mind that the client in the photograph ("Mr A") was a person of whose case the plaintiff had spoken to the defendant on several occasions, saying that he (the plaintiff) and the SC had been successful in obtaining substantial damages for that client on account of mental impairment resulting from a head injury. When the plaintiff was eventually given an opportunity in cross-examination to explain the photograph, he made it clear that he had indeed had such conversations with the defendant about Mr A's case but that the person in the photograph with the SC was a quite different client ("Mr B") for whom the plaintiff and the SC had obtained a favourable result in litigation of an entirely different kind; also that the plaintiff's point in showing the defendant the photograph was to identify not the client but the SC who was briefed in the defendant's matter, as he had been in Mr B's. Despite this clear and logical explanation, the defendant simply would not accept it: "That is incorrect. You referred to the man in the photograph as having been a personal injuries case, who had a head injury, and you got big bickies for it."

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In this, as in so many other matters, the defendant is fixated on a version of events to which she is determined to cling, regardless of any rational explanation. 31 I come now to the medical evidence. Filed by the plaintiff were two affidavits, each sworn on 26 April 2001, by consultant psychiatrists, Dr D S Bell and Dr R D Lewin. Each was cross-examined. Evidence was also received from Dr R J Russell and Dr T O Clark, psychiatrists consulted by the defendant herself. They gave oral evidence. Each of these medical practitioners had previously written reports. The reports of Dr Bell and Dr Lewin were prepared initially for the purposes of the District Court proceedings. The reports of Dr Russell and Dr Clark, by contrast, were obtained by the defendant for the purposes of the present proceedings. I should add that Dr Lewin and Dr Clark prepared further reports for the purposes of these proceedings and that these were annexures to their affidavits. 32 Questions of admissibility arise for determination in relation to the reports of Dr Bell and Dr Lewin. For the purposes of the present proceedings, I concentrate on the reports annexed to the respective affidavits, being Dr Bell's report of 26 April 2001 and Dr Lewin's report of the same date. It is appropriate that they be set out in full. Dr Bell's report is as follows: "I have provided three reports about Mrs R dated 21 June 1991, 20 March 2001 and 10 April 2001. In response to your specific request, I am of the opinion that your client, Mrs R, by reason of her unsound mind cannot give you informed instructions or deliver evidence not distorted by delusional beliefs. For these reasons she is unable to proceed with the final Hearing of her matter in the absence of an appropriate tutor such as the Protective Commissioner managing the conduct of her case. Like you, I feel very sorry for Mrs R and appreciate that she will be very indignant about this opinion, but her stand can only disadvantage herself. Mrs R did telephone me after she read my report of 10 April 2001. She spoke almost non-stop for more than three quarters of an hour until I brought the conversation to a halt. She repeated the matters she has raised again and again with the addition of some new information about the most recent repercussions of her accusations against the police and her neighbour. So far as I could gather from her disjointed account, it seems that a magistrate has once again refused to accept her allegations against the police and he expressed concern about her repeated unjustified recourse to the courts. She spontaneously stated to me that she is well known to the courts. She has the concern that my report can only reinforce the opposition to her legal actions. I have the impression that she is in peril of being branded a vexatious litigant, not without good cause of course. In the course of the conversation I tried various lines of reason to persuade Mrs R. I observed that you and her other legal advisers have sincerely expended considerable effort on her behalf, over and beyond the call of duty. She did not disagree. I observed that any settlement in her favour could only assist her to improve her parlous living conditions and even assist in obtaining the justice she wants. She did not disagree. In this regard I did not support her allegations against the police or the neighbour, rather reiterating my view that she is mistaken because of her mental illness. She disagreed vehemently. The only reason which seemed to get through briefly was the point that the way to regard my evidence about her mental illness is that it is the consequence of brain damage incurred at the time of the accident. The glimmer of reason soon disappeared with the return of her delusional resolve to have the courts recognise how the police physically assaulted her and how her neighbour breaks her windows, enters her home repeatedly and so on. In this regard she has the absolutely characteristic conviction encountered in the encapsulated delusional system of schizophrenia originating late in life. Reason will not dent it. Sadly, treatment is not likely to ameliorate it. The state is usually refractory to medication. Treatment should be tried. But compulsion at this stage is most unlikely to assist her in time for the Hearing." 33 The report of Dr Lewin is as follows: "Thank you for your further correspondence in regard to the case of Ms R. You sent a facsimile, dated 24/4/2001, regarding difficulties experienced in obtaining instructions from your client. You noted that Ms R has considered various medical reports that were provided to your office and that she had refused permission to allow you to use these reports in the context of her case. You formed the view that these reports and, in particular, the several reports which I had prepared in her case might be of positive assistance to her case. Indeed, you expressed the view that 'In the absence of your report being served, our client's claim is seriously prejudiced'. You also informed me that you had serious doubt about whether or not Ms R appreciated the impact of her decision not to have these reports served. On 24/4/2001 you spoke with me on the telephone about these matters and you raised with me the question of Ms R's fitness to give instructions to the solicitor. I noted that your observations were, in general, consistent with my own and that Ms R appeared to be reacting in a somewhat unreasonable manner. During the examination, I noted that she was particularly concerned about the use of the diagnostic term 'Schizophrenia'. You will note that I emphasised that I did not make the diagnosis of Schizophrenia in Ms R's case. I made note of this on more than one occasion in my report. Ms R appeared to give undue emphasis to the possibility that some doctors considered that she had such a mental illness. Relying upon what you have told me and upon your verbal instructions over the telephone, it appears that Ms R is not giving reasonable instructions in regard to the proper running of the current set of legal proceedings. This appears to arise as a direct consequence of the personality disturbance which I have described in my various reports. It appears to me that Ms R is unduly suspicious of her own legal advisers. This is consistent with the diagnosis which I expressed at the end of page 12 and at the beginning of page 13 of my report, dated 8/3/2001. It is my opinion, based upon the information noted above, that Ms R does not appear to be giving reasonable or informed instructions. It would appear reasonable to seek to have a legal guardian appointed on a temporary basis. I would support such an application being made through the Office of the Protective Commissioner. I suggest that it would be appropriate for such a procedure to be confined to the current legal proceedings." 34 Each report was written in response to a letter in the following terms sent by the plaintiff, as solicitor, to the particular doctor: "We act for [defendant's name]. Previously you have provided medico legal reports. Our client's claim involves a Motor Vehicle Accident claim. We note that you have seen medico legal reports provided by the Defendant in this matter. Our client has been advised in conference by Senior Counsel Mr [name] and Junior Counsel Mr [name] and myself that your reports assist our client in the presentation of her Personal Injury claim. Our client is deeply upset concerning the conclusions made by you in your report and has categorically refused to provide us with instructions to serve your reports. It is our view that in the absence of your report being served our client's claim is seriously prejudiced and there must be serious doubt concerning whether or not our client appreciates the ramification of her decision not to serve your reports. Our client since seeing your initial report instructed us to provide you with voluminous material regarding her history. When your supplementary report was received our client became very upset and again refused to accept any of the opinions expressed by you concerning her condition. Having regard to your examination and reports prepared are you able to express an opinion concerning whether or not our client is capable of giving informed instructions and or capable of understanding the nature of any diagnosis and opinion you have expressed. The purpose of this letter is to obtain your opinion as to whether our client Mrs R is able to proceed with the final Hearing of her matter and give informed instructions and evidence in the absence of treatment and in the absence of an appropriate tutor such as the Protective Commissioner managing the conduct of her case." 35 It is clear that each of the reports of 26 April 2001 was based in very large part on conclusions previously reached by the author of the report. The fact is that each practitioner had considered the position of the defendant, for the purposes of the District Court proceedings, in some detail during earlier years. The report annexed to each affidavit was therefore in the nature of an update referring particularly to the material conveyed by the plaintiff's letter of 24 April 2001. 36 In Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705, Heydon JA confirmed that, since an expert gives an opinion based on facts, the expert must either prove by admissible means the facts on which the opinion is based or state explicitly the assumptions as to the facts on which the opinion is based. As a corollary, expert opinion based entirely on inadmissible evidence is itself inadmissible: Sych v Hunter (1974) 8 SASR 118; R v Reiner (1974) 8 SASR 102. It follows that an opinion based exclusively upon and supported exclusively by inadmissible hearsay or by material tendered inadmissible by the Evidence Act provisions on client legal privilege will not be received into evidence. In the present case, however, it is not disputed that each of Dr Bell and Dr Lewin actually saw the defendant and had consultations with her before writing reports which preceded those of 26 April 2001, although it appears that there was no separate consultation for the purposes of the reports of that date. Given that background, it is not possible to say that the opinions expressed in the reports of 26 April 2001 are based entirely on the material conveyed by the plaintiff's letters of 24 April 2001. That being so, the reports are not inadmissible on the basis stated but, for the purpose of deciding the weight that should be given to them, it is appropriate to examine the background circumstances. 37 In that respect, the judgment of Jacobs JA (with whom Wallace P and Asprey JA agreed, although adding observations of their own) in Steffen v Ruban (1966) 84 WN (NSW) (Pt 1) 264 is instructive. In that case, the mental capacity of a boy was in issue. The boy did not give evidence and his mother testified only briefly before becoming unable to continue. Evidence was given by a psychiatrist and, in view of the circumstances concerning the boy and his mother to which I have referred, was of central importance. Jacobs JA said: "[T]he effect of the plaintiff's mother ceasing to give her account of his behaviour and of the plaintiff not being called so that the jury could not observe for themselves his current condition, is to make it important to scan carefully the medical evidence in order to make sure that as far as possible it is limited in its effect on the jury to matters of which the doctor gives direct evidence from his observations and matters upon which he expresses an opinion based on his observation. If his evidence is such that it is impossible to analyse and determine what are conclusions based on his own observation and what are conclusions based on what he has been told, then in such a case as the present one the danger of mis-trial becomes very great (cf Ramsay v Watson (1961) 108 CLR 642 and Evans v Hartigan (1941) 41 SR (NSW) 179)."

[15]

Later, his Honour said: "I cannot be clear from Dr Bailey's evidence whether he was expressing conclusions based on his own observations or based on what he had been told by the boy's mother. If his conclusions were mainly based on what he had been told by the boy's mother then there is no evidence from her that what she told the doctor was correct, and in the present case this is of vital importance. If any part of Dr Bailey's evidence was sufficiently clearly based on his own observation or tests and not in whole or in part contradicted by other portions of his evidence, then one could say that, despite deficiencies in proof of the history of the plaintiff, nevertheless the medical evidence was clear; there might be no occasion to interfere with the jury's verdict. However, I find it quite impossible to say this on Dr Bailey's evidence." 38 Against this background, the appropriate course would be that the reports of Dr Lewin and Bell dated 26 April 2001 be received into evidence but that the opinions expressed in them - based as they are, in part at least, on what was said in the plaintiff's letters of 24 April 2001 - be treated with care as to the weight they are given. In the end, however, I have concluded that it is unnecessary to attach any great weight at all to either of the reports of 26 April 2001 since, as it happened, both Dr Bell and Dr Lewin spent a considerable period of time in the witness box under cross-examination by the defendant herself. It is to the matters emerging from that cross-examination that I now turn. 39 Each of Dr Lewin and Dr Bell was asked a number of questions by the defendant based on the premise that the witness had not known (and did not know) the true facts about a number of matters the defendant considered important and that, if he had known the true facts, he could not have reached the conclusion that the defendant was suffering from a form of mental illness. The facts in question were, of course, facts going to the various matters uppermost in the defendant's mind concerning her neighbour, the tree, the police, the employee at the Crown Solicitor's Office and the hospital. 40 Dr Lewin, having been taken through a great deal of material about these matters, was asked some questions about whether that material would influence his decisions. I quote from the transcript of cross-examination: "Q. But wouldn't it have been relevant for the solicitor to actually have sent you a document: Here I have raised an issue. You have got nothing there to say yea or nay, that what I am speaking about is correct or what I said about it previously? A. No, it would be irrelevant. It is not my position to make a judgment about those things. My job is to make a judgment about medical issues.

[17]

Q. And as to the rights and wrongs of the situations that the patients describe to you in response to the question you put to them? A. Generally, that's correct, yes." 41 There was a similar exchange at a later stage: "DEFENDANT: Q. Does it not further confirm what I am saying in here did happen at this particular time? These are patients I am relating to for a particular period of time, a very short period of time? A. It is not a question for a medical specialist. I have no opinion on that question. What I can say is that reading these documents does not cause me to alter the opinion I have expressed in the report." 42 The fundamental message on this aspect comes from the following extract from Dr Lewin's cross-examination: "DEFENDANT: Q. What I was saying in respect to that, if a hospital produces a document that verifies that a patient that you have been complaining about or stating had died while you were there from negligence, and they produce a document, which I was not supposed to get, showing that these certain patients had died at that particular time, wouldn't that give relevance to the fact that what I am saying is more probably correct than paranoid? A. I am not there to make a judgment about whether certain events happened or not. I am not there to establish what the facts are. My job is to interpret the behaviour and the symptoms that you report to me and make a medical diagnosis. Clearly if I had different materials and different facts were presented to me, I may well have reached a different conclusion. But if we are considering the example that you have put to me as a hypothetical question, I think it unlikely it could have made a significant difference to the conclusions that I have expressed in the report that I prepared." 43 Dr Lewin's description of the processes he had followed in coming to his conclusions were also stated: "I considered the written materials that I had been given, the documents which I considered before I examined you, the material that I reviewed after I had examined you, the information that you gave me in the examination. And I also considered my observations at the time and my mental state assessment and--

[32]

Q. When I am trying to prevent that from happening, where I am going to go to be disadvantaged from, not being able to have any civil liberties, not being able to have any standing in the court, having all my estate taken over, any money that comes from this third party case taken over and me having to request certain amounts when I need it, it is very detrimental to my whole independent nature of myself not to be able to have any autonomy? A. Mrs R, it doesn't help to you to feel sorry for yourself in some situations. Look at the civil liberties you are using right now. You haven't lost them. I think you are abusing them. I think you should stop all this and get on with the main job, which is to see that you get a satisfactory resolution of your original case." 47 Each of Dr Lewin and Dr Bell gave his evidence in the witness box against the background of a clinical diagnosis already made and stated in a report pre-dating the report of 26 April 2001. The diagnosis was, in each case, referred to but not described in the course of the cross-examination. In the case of Dr Lewin, the diagnosis was of a long-standing personality disorder, being a mixed condition with schizotypal, schizoid and possibly also paranoid and histrionic traits. Dr Lewin added that there was a marked degree of functional impairment. Dr Bell's diagnosis in 2001 was that the defendant was overtly psychotic and had a paranoid personality disorder. I understood both witnesses to be referring to these earlier findings when they gave evidence before me. 48 I turn now to the evidence of Dr Clark, one of the medical specialists consulted by the defendant herself. I begin by quoting a report written by Dr Clark and dated 15 October 2002: "To Whom It May Concern re [Defendant's name] [Defendant's first name] has attended the clinic here on three occasions. At her request she has asked me to say if she is of sound mind. I can say she shows no symptoms of psychosis. She says she suffers no hallucinosis, she is not deluded in a formal sense. She is no disorder of the form of her thought - that is she is coherent logical and rational in her reasoning. She is a person who is anxious full of "stress" and absorbed in her distress. She finds it difficult because of this distress to get her point of view across Therefore this must be taken into account by her advisers and I would ask the court for forebearance in her matter. With respect she is suffering anxiety and will need great patience in her case." 49 In examining Dr Clark, the defendant again sought to place before him documents, photographs and other materials which she considered would demonstrate the truth of her beliefs about the subject matter of her pre-occupations. The examination of Dr Clark by the defendant proceeded as follows: "DEFENDANT: Q. Can I show you these couple here. Here I have shown photos of my next door neighbour in action. I only put these stakes in so I can do a straight line to put in a row of bricks for my dividing fence, and before I could even get back, I grabbed the camera and started taking photos of it, here in action pulling out the peg and right through and even digging it out. So this involves my neighbour. It is not something that I have just made up. A. I did observe at the time that you go to great lengths to photograph things, but you can't actually get the window repaired.

[47]

Q. I am harming myself because of - the fact is that I am not being recognised by the authorities for them to do something when now, as I stated to you at the time, this same person who was the Ombudsman at the time for five years covered up for police assaults and break and entry by both police and my next door neighbour, putting it under the Secrecy Act, who is now in charge of ICAC and Bob Waite is now Assistant Commissioner of Police? A. This wouldn't all be happening if you would attend to your obsessiveness. There are medications, there are techniques, you know about them." 51 This part of the examination of Dr Clark ended with the following exchange: "Q. The fact is I am not obsessive. These things are actually happening, and I have - would you agree that at no time have I said - stated to you that I've gone down and retaliated against my neighbour? A. You are being obsessive now. That is why we are all here." 52 The fourth medical witness was Dr Russell, the second psychiatrist consulted by the defendant. His written report dated 9 August 2002 was as follows: "To Whom It May Concern Re: [Defendant's name] - Appeal of order under Protected Estates Act 1983, made on 6th August 2001 appointing Protective Commissioner, Receiver and Manager of her estate Mrs R approached me to provide a report for her upcoming appeal. This report is based on two interviews lasting a total of three and half hours, in addition to perusal of a large volume of documents relating to her complicated legal situation. I am aware of three different aspects of this; 1. The Protected Estates Act order referred to above. 2. An ongoing and unresolved Third Party Claim, 3. A longstanding neighbourhood dispute, which is also, I believe, currently before the courts. This report will concentrate on the Protected Estates issue. I have read the judgment and the transcript of the proceedings of the 6th August 2001. I have also seen the reports from Dr Lewin and Dr Bell, which were clearly important in relation to the decision. In essence, Dr Bell's assessment indicates that Mrs R has displayed delusional beliefs and thus could be considered to be suffering from a chronic psychosis such as schizophrenia. Dr Lewin's view appears to be that while there may not be sufficient evidence to make a diagnosis of psychosis Mrs R nevertheless has sufficient personality disorder as to severely compromise her decision-making ability. Mrs R believes that these reports are invalid because the clinicians were not in full possession of the relevant information, particularly regarding the on-going neighbourhood dispute. Mrs R has shown me an extensive file and photographs related to these matters which are apparently still before the court. I am in no position to comment on the veracity of this material . On the basis of my own examination of Mrs R, which included a full psychiatric history, mental state examination and brief cognitive assessment, I was not able to find convincing evidence neither cross-sectionally nor longitudinally of a psychotic disorder (schizophrenia or delusional disorder). I think there is reasonable evidence, however, of significant personality characteristics, including a persecutory style and attitude, difficulty making and sustaining relationships, combativeness and abruptness. The protracted nature of the third party legal process has probably exacerbated her vulnerabilities and provided many opportunities for conflict. She makes many critical and disparaging comments about most of the legal professionals she has encountered over the years, considering them one or more of the following: incompetent, lazy, self-serving, negligent and in one case physically abusive. It seems highly unlikely to me that all of these allegations could be substantiated, but it is also important to say, whilst implausible, they are not impossible, and in psychiatric terms, would not necessarily be regarded as delusional. In addition to the above, Mrs R also displayed some mild cognitive disturbance in terms of difficulty in concentrating at times and some lapses in clarity of expression. The basis of this is questionable, possibly related to psychological stress, but not of sufficient severity to compromise her decision-making ability. Indeed, her ability to organise and present material from the vast documentation, and her attention to detail, were quite impressive. As far as insight and judgement is concerned, Mrs R considers that, even if declaring her incompetent would result in a favourable outcome in the Third Party process, that this would nevertheless be intolerable to her, because she would not have any control of her life. She expresses a strong desire to regain her autonomy and pursue the normal legal avenues. She remains hopeful of finding satisfactory legal representation in the future, despite her disappointments so far. I find it difficult to be optimistic in this regard, because it is likely that problems will continue, and she has in all probability come to be regarded as a 'vexatious litigant'. In conclusion, regardless of medical opinion, diagnosis etc, I appreciate that the determination of competence is a legal one, and the Court has ruled. On behalf of Mrs R I simply and respectively, ask that the Court reconsider this decision." 53 Like the other medical witnesses, Dr Russell stated that the relative truth of the particular matter was not significant to his determination of the defendant's mental state: "Q. And so if that matter and other matters relating to my neighbour have come to court, then wouldn't that establish also that it was factual, not something hallucinatory or delusional? A. Well, no. I don't see that my role as a clinician was to sort out what was the likely truth or otherwise of what you were telling me. I don't see that as my substantial role. My role was to see how it - how you were dealing with the problem; how you were dealing with the people concerned; how you were approaching the problem; not the actual details of the allegations one way or the other." 54 Dr Russell was also asked specifically by the defendant for his opinion of her mental state: "DEFENDANT: Q. Having heard what was put to you today and my explanation regarding the MFI 1, and the questions that Mr Andrews has put to you, would it be your opinion that I would be able to run my own affairs, my financial affairs and my own personal affairs? A. Well, there are a number of factors there. I think a yes or no answer doesn't do justice to them and I don't know quite how, what I should say or not say. But I think what I said, what I would say is what I really said in the report and what I said to you personally, and that is that regardless of the diagnosis and regardless of your capacity in a strictly clinical sense to conduct your affairs, that because of what has already happened over a long period of time and because of the ongoing difficulties you have with trusting people and cooperating and collaborating and compromising, that I cannot share your confidence that you could conduct a case. And that is nothing to do with diagnosis. It is the way you deal with the world. So I don't share your optimism of getting a good outcome and I feel pessimistic about the outcome generally.

[48]

Q. If the management of my case is such that it would be detrimental in the manner that the diagnosis of the alleged psychosis, which I am not, which I believe you have agreed with, if that was to go ahead, because it is alleged that I am psychotic and I can't make decisions, when it is not correct, it would sort of leave me without any standing in the court system and in the community, and would that not be a more devastating situation for myself than to perhaps get a million dollars and be under a Protective Commissioner or a tutor, particularly my solicitor who has had a lot of conflict with me and disagreement and management of my case? Would that not be more devastating and detrimental to me, even in my mental state and everything else, than to get a lesser amount? A. It doesn't have to. That would depend on you. But, generally speaking, I wouldn't agree with you, no. I think the best outcome would be that your case be conducted in the best way possible and the task for you to then do is to come to terms with the way it has happened, even though you don't like the way it has happened." 55 There are, of course, differences in the medical opinions to the extent that, while Dr Bell considers the defendant psychotic, Dr Lewin's diagnosis emphasized a long-standing personality disorder, Dr Clark referred in the witness box to the defendant's obsessiveness and abnormal pre-occupations by which she was harming herself and Dr Russell expressed lack of confidence in the defendant's ability to run her case because of her ongoing difficulties in trusting people and co-operating, collaborating and compromising. It is nevertheless clear from the course of the questioning of all four psychiatrists by the defendant in court that all consider her to be very significantly impaired in her social functioning and in her ability to look after herself. 56 On the whole, the medical evidence leads me to a conclusion that the defendant is suffering from a clinical condition that affects adversely her ability to make rational decisions about where her own best interests lie. She is preoccupied with the various grievances to such an extent that they occupy center stage in her life and absorb virtually all her energies. The question for decision is whether, in the light of the effects of that condition and the remainder of the evidence, the defendant must be said to be incapable of dealing, in a reasonably competent fashion, with the ordinary routine affairs of life and that, by reason of such lack of competence, she may be disadvantaged in the conduct of those affairs or her money or property may be dissipated. 57 The defendant's "estate" - in the sense of property and rights enjoyed by her - consists of her house, its contents, the right to (or, perhaps more precisely, expectation of) continued receipt of the Centrelink pension, what little money she may have saved from the pension and her as yet unquantified right to receive damages in the District Court action in which the issue of liability has already been determined in her favour. In response to a question put by me, the defendant confirmed that she has no other assets. I leave to one side, as entirely speculative, the other causes of action she considers herself to have. There are at least four other court cases on foot in which she is involved. 58 The house is in the damaged state to which I have referred. Leaving to one side the fact that it is unfinished (which, as I have said, I am content to accept as being not inconsistent with local council requirements), the house is, on the defendant's own description, in a state of disrepair by reason of inattention to broken windows and removed ridge capping and, more seriously, failure to do anything about the apparently vandalized support which may cause the 45 foot balcony to collapse. Added to this, a large tree, now dead and apparently infested with ticks, lies in the backyard extending up to the wall and has been in that position for more than seven years. 59 It is not as if these matters are not of concern to the defendant. They are obviously deeply worrying to her. But she does nothing about them beyond forming theories about who is responsible and concentrating her efforts on seeing those persons brought to account in some way. The fact that windows are broken, so that the house is susceptible to rain damage and presumably entry by intruders, does not seem to impress upon her any need to attend to repairs. The position in relation to the balcony is the same. She seems to give no thought to having a builder attend to the broken support so that the danger of collapse is removed. Much more important to her is pursuit of her theories as to who is to blame. 60 An aspect of the state of mind that causes the defendant to afford no priority to having the house repaired came through when she was putting questions to Dr Clark. He commented on that state of mind and referred to a matter that had become obvious to him in court, namely that the defendant had only one lens in her spectacles. Her response (which I have quoted earlier) made it clear that she could not have her glasses repaired because she was waiting for money to come in. I add, in relation to the tick infested tree, that the defendant is well aware that physical illnesses from which she is suffering are said to be caused by exposure to ticks most likely from her back yard, yet places no importance on removing the tick infestation. The same lack of proportion and priority is again exhibited. 61 As to her pension and money matters, it is perhaps unusual that a pension recipient should not have the pension paid into a bank account. But that, of itself, is something on which I place no weight. Some people are more conservative than others when it comes to dealing with banks or keeping their money safe in other ways. But the reality is that, on her own account of matters, the defendant does not keep her money safe. She says that her pension cheques have been stolen from her house on several occasions, making it necessary for her to seek replacement cheques from Centrelink. It is inconsistent with reasonably competent handling of money that anyone would allow that kind of situation to continue, rather than taking steps to keep the cheques safe. Again, preoccupation with the fact that the cheques are being stolen and with the identity of the person stealing them obscures in the defendant's mind the need to put an end to the circumstances which allow the thefts to continue. 62 Unauthorised entry to her house at regular intervals plays a dominating part in the defendant's thinking. It is her belief that it is the neighbour who comes into the house and does strange things on a continuing and regular basis. I asked her how the neighbour gains entry. The answer was that the neighbour has a key and comes and goes at will. There was no suggestion that the neighbour breaks in. Nor was it suggested that the defendant gave her a key. The implication is that the neighbour stole a key. Any normal thinking person faced with such a situation would take the simple and obvious precaution of having the lock changed or a second lock added - something that is not out of the financial reach of a person such as the defendant on a Centrelink pension. But this simple solution is one that the defendant's condition apparently does not allow her to see. 63 There is then the right to damages in the District Court action. The advice the defendant has had is to the effect that, provided appropriate medical evidence of mental impairment is duly adduced on her behalf, she has a very good chance of being awarded substantial damages - by which I mean damages significantly greater than those that will be awarded on the basis of evidence of physical injury only - assuming that, on the whole of the evidence, necessary elements of causation can be shown in such a way as to link the mental impairment and the motor accident of 1979. The defendant, however, is implacably opposed to the idea that the District Court action should be conducted in that way. She has a most vehement objection to anything that involves an assertion that she suffers any form of psychiatric disorder or mental impairment. 64 On any rational and objective assessment, what might be described in a compendious fashion as mental illness should not be today a cause for shame. On the contrary, it should be accepted in contemporary society as but one form of illness and therefore deserving of care, treatment and, where warranted, compensation like any other. It is that element of objectively rational decision making in relation to her District Court case that the defendant is prevented by her condition from appreciating, with consequent risk of substantial disadvantage to her if the litigation is allowed to take the course she would prefer it to take. 65 I referred at the beginning of these reasons to a letter dated 25 August 2003 sent to me by the defendant. I said I would come back to it. My reason for doing so is that it reflects in clear terms the significant disability under which the defendant is labouring because of the all-absorbing nature of her preoccupations about the various matters to which I have referred. The letter reads as follows: "Justice Barrett Supreme Court of NSW Sydney Dear Sir, I refer to you direction to have my submissions filed by 27 August 2003. I am now in a worse situation than ever as I discovered on Friday afternoon that not only my submissions for the second time stolen but also all the transcripts in matter 29/01 as well as documents pertaining to other legal matters. As some documents previously stolen have been returned I have made a written request to the police commissioner by fax today for permission to be granted for the civilian crime scene forensic officers to examine my premises and conduct DNA testing on documents returned as a matter of urgency as well as for a search warrant for [Neighbour's] premises at [address] since I require the transcripts to refer to for the completion of my submissions. Unfortunately I do not believe that DNA & finger printing will [scil. produce] results in the limited time left to file my submissions - unless I just make non specific submissions with reference to documents without reference to the transcripts. I therefore request leave for a further extension to file my submissions. Thanking you

[50]

(There is a postscript about a concern as to the whereabouts of certain documents produced in court.) 66 I have left until this late stage in these reasons a matter which might have been dealt with at an earlier point but is probably better understood in the light of what has already been said. I refer to the issue of the plaintiff's standing or, more precisely, the general undesirability of lawyers being applicants in cases of this kind in respect of their clients. 67 The plaintiff was, as I have said, the solicitor acting for the defendant in her personal injury proceedings from early 2000. In the course of acting for her, he formed the view that she was incapable of giving informed and rational instructions in her own interests. That view was formed by the plaintiff after consultation with both senior and junior counsel briefed in the matter (with whom the defendant had had conferences) and caused the plaintiff to seek both the s.13 order with which I am presently concerned and the interim order made by Windeyer J on 6 August 2001. After the interim order was made and the Protective Commissioner became receiver and manager of the defendant's estate, the Protective Commissioner continued to instruct the plaintiff in relation to the District Court litigation. 68 In McD v McD [1983] 3 NSWLR 1, Powell J expressed the view that it is undesirable for a solicitor to be an applicant for relief of the kind now sought in respect of a client because to do so puts the solicitor in an adversary position in relation to the client, particularly where, as here, the client wishes to oppose the application. That expression of opinion, as relevant to the earlier stage of these proceedings involving the interim order made by Windeyer J, was considered by the Court of Appeal in R v P (above). Hodgson JA, with whom Mason P and Ipp A-JA agreed on the matter, said: "Coming to the third ground of appeal, and the matter of confidentiality and conflict of interest questions generally, the case of McD v. McD does assert that, in situations like this, applications under the Protected Estates Act should not be brought by solicitors against their own clients, at least if there is any reasonable alternative. Leave was granted in relation to this question only on the question of principle, and not on the question whether possible alternatives had been sufficiently explored in this case. Evidence was submitted on behalf of the appellant and also the respondent concerning the issue whether the respondent had in this case taken adequate steps to find some alternative person to bring the proceedings, but having regard to the basis on which leave was granted, the Court did not permit that evidence to be read.

[52]

However, there being no absolute rule precluding solicitors bringing such an action, I do not think a ground is shown for interfering with the result at first instance on this basis." 69 The central message here is that, because of the duties owed by solicitors to their clients, a solicitor should not initiate an application of the present kind against a solicitor "at least if there is any reasonable alternative". It is therefore appropriate that I consider the question whether the plaintiff has taken adequate steps to find some alternative person to bring the proceedings. 70 The plaintiff did not serve or otherwise notify any relative of the defendant. He said that he had not done so because the defendant had told him that he was on no account to contact any of her relatives to request for the purposes of the District Court case assistance with evidence about the defendant's mental state before her accident. He assumed that the same prohibition would apply in the present proceedings because they too involved questions about mental impairment. 71 Eight of the defendant's brothers and sisters nevertheless became aware of the proceedings. The defendant herself told them at least the general nature of the application. So much is clear from the affidavits sworn by them and introduced into evidence by the defendant. Objection was taken to large parts of the first three affidavits handed up by the defendant (one of a brother and two of sisters) and those parts were rejected under both the hearsay rule and on the grounds of relevance. The core message nevertheless remained in each case, namely, that the deponent is opposed to the making of a protective order in relation to the defendant. Further affidavits of the three siblings to whom I have just referred (and a fourth who provided an unsworn written statement in the first instance), together with affidavits of four other siblings were handed up at a later stage. Although the plaintiff did not formally object to any parts of those later affidavits, they suffer from the same inadmissibility problems as the earlier ones. 72 The first thing to be said about the siblings is that none of them lives close to the defendant. Two live in parts of New South Wales far removed from Sydney. A third lives in Queensland. The other five live in Sydney suburbs, but suburbs at a significant distance from the defendant's home. As a matter of general knowledge, I would estimate the travelling time between the defendant's home and the home of each Sydney based sibling to be more than an hour by public transport, being the means of transport the defendant is accustomed to using. 73 I asked the defendant whether any of her brothers and sisters visit her at home. She replied that she is rarely at home and that it is easier for her to visit them, which she says she does regularly. I asked which of her relatives had been to her home in the last twelve months. She said that one sister had visited "once or twice"; also, "My niece I think. I think my nephew might have come across too". 74 The siblings' affidavits fall into two general classes. One group consists of short accounts of the defendant, her background and her capabilities as perceived by the relevant deponent. Affidavits in the other group refer to like matters but also go on to discuss various things about the matters with which the defendant is deeply preoccupied in the way to which I have referred at length. Much, if not all, of that additional material is of such a nature that it cannot be in any sense a reflection of the deponent's first hand observations or recollections. Some of the affidavits in this latter class are in handwriting which appears undoubtedly to be that of the defendant. 75 I asked the defendant whether she discussed with her siblings the matters which are of such overwhelming concern to her. It is pertinent to quote the following extract from the transcript: "Q. With your brothers and sisters in particular, do you regularly discuss your problems about your next door neighbour and the police with them? A. They are aware of it, yes.

[58]

Q. Do they know that you have your roof in disrepair and your house in disrepair; your brothers sisters, do they know? A. Yes, they know. They have made references to them, if you read my affidavit. Apparently, you have not. This goes to show you have not read my affidavit. How can you cross-examine - " 76 My findings with respect to the defendant's eight siblings are, first, that each believes the defendant capable of managing her affairs; second, that each has expressed opposition to the making of a protective order; but, third, that, with very rare exceptions, they do not visit the defendant at home and, while there no doubt exists the natural affection to be expected among brothers and sisters, none of her siblings sees a need to play any supportive role in relation to the defendant or to take any positive steps to help her deal with the various matters of conflict and hostility in which she is absorbed to the point that they dominate her life. Although, in this case, there were two adjournments because of the defendant's ill health and she was, on one occasion, so distressed and affected by chest pains that I had to suspend proceedings, she always attended court alone. No sister or brother or other family member ever came with her and there was no reference to them except when their role (or lack of it) became an issue. 77 I am of the opinion that, even if the plaintiff had taken steps to seek out the siblings and to ascertain whether any of them might have been an alternative person to bring the proceedings, he would not have succeeded in finding any suitable substitute applicant. 78 The other possibilities to be considered as to substitute applicants are persons connected with the defendant's church and social workers with whom she may have come into contact. The latter may be disposed of briefly. I asked the defendant whether she is in touch with any social worker through the local council or the area health service or in any other way. She said that on an occasion when she attended Centrelink about her pension cheques, she was asked whether she would like to see a social worker and had declined, saying that she did not even have time to keep her medical appointments. 79 The defendant said that she attends church regularly. She used to attend a church in a suburb near her own but in the last two years has been going to a church in a suburb quite a distance away. In response to questions from me, the defendant said that a minister from the first church "could have" visited her home once. Otherwise, it seems that the people she knows from church are not visitors to her home. I also asked whether she discussed her difficulties and general situation with any of the ministers or other persons connected with the two churches. She said that she "thought" she had mentioned it to one of the ministers when she phoned him to ask for a reference she tendered in these proceedings and that she had put "bits and pieces of this case" into a fax sent to a second minister asking for a reference (which he gave and which was tendered) but she was not sure whether the fax got through. Both references speak highly of the defendant. 80 I do not regard anyone from the defendant's church as a realistically alternative applicant. 81 In the result, therefore, I am satisfied that, although the plaintiff did not canvass the question of alternative applicants (because, in the case of the siblings, he considered that the defendant's instruction not to contact them in relation to the District Court action should be interpreted as carrying over into this case also), any attempt he had made to do so would have been fruitless. The fact that the plaintiff brings the proceedings in the way described by Hodgson JA as "extremely undesirable" therefore should not stand in the way of the grant of such of the relief he seeks as is shown to be warranted by the evidence, there being no reasonable and apparently available alternative. That amounts to a special circumstance warranting the making of orders on the application of a solicitor, he being a person who has gained a close appreciation of the defendant's circumstances and difficulties generally in the course of dealing with her personal injuries claim. 82 Having regard to the whole of the evidence and the whole of the defendant's conduct in the course of the proceedings before me, I am satisfied, on the balance of probabilities, that the defendant is incapable of managing her affairs, that, as a result, she is in a position of vulnerability and is being and will be disadvantaged in the conduct of those affairs and that it is in her own best interests that the court make orders that will protect her. I am also satisfied that the medical evidence, although as to precise form not complying with Part 76 rule 11(b) of the Supreme Court Rules, has been adduced in a quite satisfactory and fully informative way. The plaintiff has, in my opinion, properly brought the defendant's plight before the court and, in doing so, has enabled the court to obtain an appreciation of the whole of the defendant's circumstances of disability and vulnerability, not just those involving the District Court proceedings in which the Protective Commissioner may or may not elect to continue to instruct the plaintiff as solicitor. 83 The declaration and orders of the court are as follows:

At a glance

Court

Decision date

Before

Source

Judgment (64 paragraphs)

Parties

Cases Cited (5)