Petrevski v Sarwar; Petrevski v Carroll; Petrevski v Tran; Petrevski v Kingsley

District Court of NSW|2016-12-16|Before: Mr J

Notices of motion

These reasons concern the disposition of four amended notices of motion filed by the defendants on 2 April 2017 in the following proceedings: 1. Petrevski v Sarwar 2012/243885 2. Petrevski v Carroll 2012/243897 3. Petrevski v Tran 2012/243913 4. Petrevski v Kingsley 2013/284939
The amended notices of motion seek the appointment of a tutor for the plaintiff in each of her cases. For convenience, the evidence in one motion was taken as evidence in all four motions.
The amended motions in each case supersede earlier motions filed by the defendants seeking, pursuant to UCPR r 12(7)(1), to strike out each of the plaintiff's proceedings for want of due despatch or prosecution. The plaintiff resisted those applications.
On 21 April 2016, at the first return date of the motions as originally filed, it was indicated to the parties that the remedy of striking out the proceedings did not seem appropriate where there were concerns over the plaintiff's legal capacity to proceed with, and manage her litigation: State of New South Wales v Plaintiff A [2012] NSWCA 248.

Factual background

The plaintiff, Suzana Petrevski, is obviously an intelligent and articulate person. She had achieved career accomplishments to a significantly high level before sustaining injuries in a series of motor vehicle accidents that respectively occurred on 24 February 2003 (involving the defendant Mr Carroll), 15 May 2004 (involving the defendant Mr Sarwar), 8 June 2007 (involving the defendant Ms Tran) and 11 July 2010 (involving the defendant Mr Kingsley).

Procedural history

Despite many efforts on the plaintiff's part, over time, she has experienced great difficulty in securing legal representation to advance her claims to take them to finality. This has been in circumstances where the defendants have all been anxious to assist her in the finalisation of her claims, either by way of settlement or by way of a hearing leading to final judgment. The claims involve three separate CTP insurers.
The legal representatives of the insurers of the respective defendants have experienced considerable difficulty, frustration and delay, in their attempts to assist the plaintiff to advance her claims. As a last resort, they filed the original notices of motion which sought, pursuant to UCPR r 12(7)(1), to strike out the plaintiff's claims.
These applications initially came before me on 21 April 2016, at which time, as observed at paragraph [4] above, it was clear that strike out orders were not appropriate to the circumstances.
Thereafter, successive further listings of the motions occurred before me on: 1. 9 September 2016; 2. 16 December 2016; 3. 5 May 2017; 4. 9 June 2017; 5. 29 September 2017.
On those occasions, which were accompanied by great difficulty, the proceedings were successively stood over to allow the plaintiff the opportunity to obtain legal representation in accordance with her expressed wish to do so.
In the course of those events, it became obvious that there were real concerns over the ability and legal capacity of the plaintiff to manage her litigation. She has been self-represented, at least since 21 April 2016. Each of the above listing dates were complicated by the plaintiff's self-representation and by her steadfast refusal to have a tutor appointed for her cases.
Accordingly, on 9 September 2016, I made an order that the plaintiff be medically examined by Dr Bruce Westmore, a consultant forensic psychiatrist, for the purpose of him preparing a report on the question of the plaintiff's legal capacity. That step was taken out of fairness to the plaintiff, as that matter needed to be clarified first before any further consideration could be given to the defendants' strike-out applications. The respective defendants co-operated with that process and agreed to contribute to the cost of Dr Westmore's report.
After considerable delays and difficulties raised by the plaintiff, Dr Westmore eventually saw the plaintiff on 10 November 2016, and he forwarded his report dated 28 November 2016.
In that report, Dr Westmore noted that the plaintiff spoke at length, and expansively, which was consistent with her presentation on all the occasions she appeared in court. On those occasions, it was difficult to interrupt the flow of her insistent rapid speech on wide-ranging fixated topics. This hindered the process of providing her with directions on matters that she needed to address.
Dr Westmore's opinion was as follows: "1. I am of the opinion that Ms Petrevski is under a legal incapacity and that she requires a tutor to manage her legal and / or financial affairs. That opinion might be reviewed if she is able to demonstrate an ability to form a working relationship with a legal advisor but based on her current presentation and her multiple difficulties I think from a practical perspective that would be extremely difficult if not impossible for her to do. 2. I was not able to take a detailed history from her and I was not able to conduct the usual biopsychosocial psychiatric assessment over a period of 45 minutes. That is most unusual and it reflects I think her notable psychological and psychiatric problems. Based on her presentation to me I do not believe that she has the capacity to give instructions for the preparation for her case. 3. Based on her presentation, Ms Petrevski would not have the ability to understand and process advice from legal practitioners. 4. I am not able to comment on her ability to read and process written material in any definitive way but neuropsychological testing and the opinion of a neurologist would suggest that she does have longstanding and permanent cognitive difficulties which are likely to impact on her abilities in this particular regard. 5. I believe that Ms Petrevski's ability to instruct on settlement or compromise on one or more of her cases, including her capacity to decide whether or not a settlement is in her best interests, is severely compromised because of her ongoing and now chronic psychological and psychiatric problems. 6. I do not believe that Ms Petrevski has the ability to enter into a Costs Agreement with a legal practitioner. I think she is so preoccupied with various issues, not only with the case itself but with her engagement with lawyers that her ability to demonstrate flexibility with any such arrangement is likely to be compromised. I think her capacity to understand but more importantly to accept the terms and conditions of any Costs Agreement will be compromised."
The plaintiff has consistently and vehemently resisted the appointment of a tutor for her litigation. Following the receipt of Dr Westmore's report the defendants have recognised the need for the plaintiff to have a tutor and have therefore amended their original motions to seek an order for the appointment of a tutor as an alternative to the remedy of strike-out.
Enquiries have revealed that the NSW Trustee and Guardian has declined to assume the role of tutor for the plaintiff.
In the course of those events, the defendants have gone to great lengths to seek to assist the plaintiff to obtain a tutor for her cases. This was even to the extent of issuing subpoenas to require the plaintiff's parents to attend at a hearing on 5 May 2017 in the hope that one of them might take on the role of tutor.
I intend no disrespect to the plaintiff's parents in making the observation that they are not proficient in the English language, they are relatively unsophisticated, they have little understanding of the litigation, they are apparently not in good health, and they find themselves powerless to intervene in the circumstances. It is plain that neither of them would be suitable as the plaintiff's tutor even though there is no doubt that they have her best interests in mind. This whole process is plainly very distressing to them both.
After extensive further enquiries and negotiations, the Law Society of NSW has helpfully nominated Ms Geraldine Daley AM, a solicitor with extensive experience in personal injury litigation, as a potential tutor for the plaintiff. This was along the lines contemplated in Smith v NRMA Insurance Ltd [2016] NSWCA 250. The proposed conditions for the appointment of Ms Daley as tutor are capable of being met by the defendants so that she would not be personally liable for costs incurred by her in good faith on the plaintiff's behalf.
Despite that positive development, the plaintiff still continues to resist the appointment of a tutor. As I understand her arguments in that regard, she disputes the need for a tutor, and seeks to delay any decision in that regard for several reasons.
In essence, her latest position as articulated, including as set out in a summary prepared on her behalf (Exhibit "A"), is that, without evidence she disputes the opinion of Dr Westmore as to her capacity to continue the litigation, and she disputes aspects of Dr Westmore's summary of her factual history. The plaintiff also wishes to delay the further hearing of the motions until she explores the opportunity, which she stated will only arise in March 2018, to obtain legal advice from a particular source she has in mind. Given the extensive unsuccessful lengths to which she has already gone to seek such advice and assistance, there can be very little confidence that the advice she contemplates obtaining will result in her securing the legal representation she requires in these proceedings.

Consideration

It is recognised that the step of the appointment of a tutor in litigation, whilst protective in its effect, also has the effect of wresting from the plaintiff the right to otherwise control the litigation. Accordingly, it is not a step to be taken lightly.
Nevertheless, in this case I consider that the dictates of justice between the parties require the appointment of a tutor for the plaintiff as an essential step to facilitate the just, quick and cheap disposition of her present litigation: s 56 and s 58 of the Civil Procedure Act 2005.
It is clear from the history of these matters that unless a tutor is appointed to conduct the litigation on the plaintiff's behalf, it is unlikely the cases will fairly proceed to a just finality in a cost efficient manner in the near future, without becoming bogged down with irrelevant and non-determinative side-issues that have beset the cases thus far, and which could and should be avoided if reasonably possible.
To date the plaintiff has not produced any expert medical opinion contrary to Dr Westmore's stated view that she is incapable of managing her litigation. If such contrary opinion is available, there would be no impediment to the plaintiff, or someone on her behalf, relying on such evidence to make an application to the Court to seek the removal of an appointed tutor if that step is legally justifiable. I consider that until such time as an application to remove the tutor can be made, the plaintiff's best interests would be properly served by the appointment of a tutor.
In that regard, the plaintiff's best interests will be met in the knowledge that any order of this Court to either appoint a tutor, or to refuse an application to remove a tutor if that be the case, are decisions that would be reviewable. This provides the plaintiff's interests with a significant measure of protection.
In the foregoing circumstances, on the evidence of Dr Westmore's opinion as cited at paragraph [16] above, which I accept, and absent any contrary opinion, I am compelled to the view that the plaintiff must have a tutor appointed in each case, along the lines of the orders sought in the defendants' respective amended notices of motion.
Ultimately, and properly in the circumstances, the defendants took the position that no costs would be sought in relation to the motions because plainly, the delay incurred in these proceedings to the date of the filing of the defendants' motions, and the delays incurred subsequently, were as a result of the plaintiff's condition, which is the subject matter of the proceedings.
The question of why the plaintiff's former legal representatives had commenced and maintained the respective proceedings without the appointment of a tutor does not relevantly arise at this point.

Orders

In respect of each of the defendants' notices of motion seeking to strike out the plaintiff's claims, or alternatively, as amended, to appoint a tutor in those proceedings, I make the following orders: 1. The evidence taken in proceedings numbered 2013/284939 is also to be read in proceedings numbered 2012/243885, 2012/243897 and 2012/243913; 2. I find the plaintiff to be a person who lacks the legal capacity to conduct her proceedings numbered 2012/243885, 2012/243897, 2012/243913 and 2013/284939; 3. Pursuant to UCPR r 7.18(1)(b), Ms Geraldine Daley AM is appointed to act as tutor of the plaintiff in proceedings numbered 2012/243885, 2012/243897, 2012/243913 and 2013/284939; 4. Order (3) above is to take effect upon Ms Geraldine Daley filing a consent to act as the plaintiff's tutor in the approved form (UCPR Form 30); 5. The proceedings are to be listed before me on 23 March 2018 for the purpose of making further case management orders and directions; 6. Each party is to pay their own costs of the respective notices of motion; 7. The exhibits and affidavits in these motions are to be retained on the Court file.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 December 2017

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