Plaintiff v Defendants

2 It is the third occasion on which such an application has come before the court. On previous occasions, the application was heard and determined inter partes. The present application is made ex parte by Mrs Pistorino's solicitor, Mr Esposito, and relies, in part, upon confidential and privileged material that could not be placed before the court if the hearing were on notice and heard in the presence of other parties to the litigation. Mr Esposito does not intend to waive the legal professional privilege which attaches to the evidence of confidential communications between solicitor and counsel and client.

3 The application is in respect of three identified proceedings in this court, and any other proceeding in which Mrs Pistorino is named as a party.

(a) Proceeding 5816 of 2009 was commenced by Mrs Pistorino against Mr Baker and Mrs Connell seeking their removal as executors of Mr Pistorino's will and trustees of the estate;

(b) Proceeding 8347 of 2009 was commenced by Mrs Pistorino against Mrs Connell, Mr Baker and Aguapi Investments Pty Ltd alleging oppression in the management and control of the affairs of Aguapi Investments Pty Ltd and Pistorino Investments Pty Ltd; and

(c) Proceeding 2370 of 2010 was commenced by Mrs Pistorino against Mrs Connell and Mr Gibbs under Part IV of the Administration and Probate Act 1958 (Vic) seeking further maintenance and provision from the Estate.

4 Mrs Pistorino has not instructed her advisers to bring this application. Her attitude to it is clear on the material that has been read to the court. She opposes the application. Her legal representatives, acting in their capacity as officers of the court, make the application in discharge of their fundamental obligation, their duty to the court.

5 In Goddard Elliott v Fritsch,[1] Bell J stated:

Putting aside cases where a lawyer may have a special representative authority by operation of a particular law or enactment, a necessary corollary of these principles is that the authority in law of a lawyer to represent a client depends on the client having the requisite mental capacity. The commencement of proceedings on behalf of a client implies the solicitor, as an officer of the court, is reasonably satisfied the client has that capacity. It is the same when a barrister represents a client at court. In most cases, there will be nothing suggesting the matter should be considered and the lawyer can presume their client has mental capacity. In others, however, the lawyer will be on notice that the issue requires active consideration. The present case was such a case.

The mental capacity of a client to instruct is a reflection of that mental capacity which the client must have to participate in the legal proceeding. As a lawyer is an officer of the court, it is their 'primary responsibility' to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct.[2] Where the client does not have that capacity, the lawyer does not have the authority to represent them in the proceeding, except for certain limited purposes, most particularly perhaps for the purpose of an inquiry into that question. I say perhaps because they are not really representing the client in that process, but rather assisting the court as an officer of the court.

6 Mrs Pistorino's legal practitioners have a clear and unambiguous duty to raise with the court the issue of her capacity to conduct this and related litigation.[3] Once the matter is raised the court will inquire into the question. The focus of the enquiry is relevantly upon the capacity of Mrs Pistorino to give clear instructions and to understand and act on the advice which she is given.[4] In the exercise of jurisdiction the court is acting both to protect the interests of the person with a relevant disability and to protect the court's own processes.[5]

7 The appropriate test for incapacity is identified by Order 15 of the Supreme Court (General Civil Procedure) Rules 2005, which empowers the court to appoint a litigation guardian for a person who is incapable, by reason of mental infirmity, of managing his or her affairs in relation to the relevant proceeding. The relevant provisions of the rule are:

15.01 Definitions

In this Order -

handicapped person means a person who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing his or her affairs in relation to the proceeding;

person under disability means minor or handicapped person.

15.03 Appointment of litigation guardian

(1) A person may be a litigation guardian of a person under disability if -

(a) that person is not himself or herself a person under disability; and

(b) he or she has no interest in the proceeding adverse to that of the person under disability.

...

(3) Where after a proceeding is commenced a party to the proceeding becomes a handicapped person, the Court shall appoint a litigation guardian of that party.

8 Order 15 does not restrict who may apply to the court for the appointment of a litigation guardian. A judge may raise the issue of incapacity on his or her own motion.[6] A litigation guardian may also be appointed on the application of a party's solicitor, as occurred in Farrell (by her litigation guardian Waugh) v CSL Ltd.[7]

9 The proceedings are presently in mediation and the mediation has been adjourned. Pertinently, in Goddard Elliott v Fritsch, Bell J observed, and I agree:[8]

A lawyer has a duty of care not to coerce their client into a settlement or to take or act on instructions from a client to settle a case when they know or should have known the client lacked the mental capacity to give the instructions or could not be reasonably satisfied the client had that capacity.[9]

To make an application for the appointment of litigation guardian for a person is a very serious thing because it deprives the person of their fundamental civil rights under the common law, most especially the 'right to sue or defend in [his or her] own name, and ... compromise in litigation without the approval of the court'. In making that observation in Masterman-Lister v Brutton & Co (Nos 1 & 2) (2003) 1 WLR 1511, Kennedy LJ drew attention to the importance of these rights which have been 'long cherished by English law', and the safeguards which are now to be found in the European Convention on Human Rights. There is a similar connection between the right to commence, defend and settle proceedings as civil rights under the common law and the cognate human rights in ss 8 and 24 of the Charter of Human Rights and Responsibilities Act.[10]

The final decision on the mental capacity of the person engaged in the transaction or the litigation rests not with the lawyers, not with the doctors, not with the client or party but with the court. Only the court can finally determine whether the person has sufficient understanding of the particular matters which are at issue so as to have the capacity to engage in the transaction or participate in the proceeding. The standards of capacity which is required is context and issue specific and only the court can be the judge of that context and those issues ... When the issue is properly raised, it is the duty of the court at the earliest opportunity to examine whether the person has the mental capacity which is required.[11]

10 I consider it appropriate that, unlike previous applications, the application should be not be heard on notice to the other parties to the litigation. The other parties to the proceedings are not parties that are affected by this application. It matters not to them whether the plaintiff's proceeding are managed by the plaintiff herself or a litigation guardian. Except, perhaps, in relation to legal costs, the defendants have no relevant interest. Further, in the litigation their interests are clearly adverse to those of Mrs Pistorino. As will become clear, the evidence on this application cannot be disclosed to the other parties to the litigation. In addition, there is evidence that the status of Mrs Pistorino as a person under disability may be capable of being exploited by interests associated with the defendants in a manner that could constitute an abuse of the processes of this court.

11 In Slaveski v Victoria,[12] Kyrou J stated:

A decision on whether to appoint a litigation guardian is usually made after giving the party affected and the other parties to the proceeding an opportunity to be heard on the matter. However, the party affected will not need to be heard personally where it is incontrovertible that he or she is incapable of making any meaningful submissions on the matter.

His Honour cited L v HREOC[13] and Owners of Strata Plan No 23007 v Cross[14] and I think it is clear from those references that Kyrou J regarded the other parties to the proceeding as persons affected by the in-court conduct of a self-represented litigant. His Honour's statement is an observation about common practice in relevant circumstances not intended as a statement of general principle, and in the circumstances of Slaveski, it is unexceptional. It is not a consideration that has application in the circumstances before me.

12 In L v HREOC,[15] the Full Court of the Federal Court of Australia was concerned with a denial of procedural fairness by a federal magistrate when acting on his own motion to appoint a litigation guardian for a self represented litigant. The court stated the relevant principle as being:

Where, as here, the applicant is unrepresented and the respondent does not wish to raise any point about competence but the court nevertheless has serious doubts about the applicant's capacity, the court should consider of its own motion the factual issue of 'need'. In such a case the court should, of course, raise the issue squarely and should give the applicant and any other affected party a proper opportunity to be heard and to place relevant material before the court.

13 By reason of the nature of the jurisdiction being exercised, each application must be considered on its own circumstances and the court's discretion cannot be constrained by 'rules' derived from other cases. In my view the guiding consideration as to who might be heard on the application is whether such persons are relevantly interested in, or might be affected by, the application. For the reasons I have given, the other parties to the proceedings and their legal representatives have no relevant interest and are unaffected whatever be the outcome of the application.

14 However, Mrs Pistorino plainly does have an interest in and will be affected by the application. Her views are known and she opposes this application. She has sufficient capacity to understand this application and is aware from prior applications of its nature. She refuses to be medically examined for the purposes of an assessment of her capacity. There is a presumption that a litigant of full age is competent to manage her affairs unless and until the contrary is proved[16] and when a want of competence is asserted the onus lies with those making the assertion to prove it.[17]

15 For the reasons that follow, I am satisfied that it is appropriate to appoint a litigation guardian. Although I consider that Mrs Pistorino understands the nature of the application, there are sound reasons why it should be conducted in her absence that follow on my concerns about the conduct of interests related to the defendants that will become clear. Should Mrs Pistorino exercise the liberty to apply that I will grant to her, it will become necessary to consider what procedural directions should be made to properly protect her interests on that application before it is considered. That is because I have ordered that part of the material before me and the transcript of the hearing will be sealed up and kept confidential, not available for inspection except by leave of a judge of this court.

16 I have noted that Mrs Pistorino refuses to be medically examined. In many cases the decision whether a party is a handicapped person is based on medical assessment. In Masterman-Lister v Brutton & Co (Nos 1 and 2),[18] Kennedy LJ observed:

even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.

and later[19] he added that that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it.

17 Again, as a statement of prudent practice, his Lordship's observations are unexceptional, but the correct principle is that stated in L v HREOC,[20] that the means by which the court will determine whether a guardian should be appointed can vary from case to case. As their Honours observed in that case, there will be cases where no medical evidence is available when, as in this case, a litigant refuses to submit to a medical examination. There will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party. This is one of those cases. Moreover, as it is not, like the proceeding before the magistrate in L v HREOC or Slaveski, a hearing where the court has the opportunity to make its own assessment, the court is also entitled to rely on other evidence including the assessments of legal practitioners.

18 In this case, in addition to the evidence on affidavit from two different solicitors who have acted for Mrs Pistorino, I have the benefit of the assessment of senior and junior counsel who appeared for her at mediation and before me on this application. I am satisfied that those legal practitioners, particularly senior counsel, have the knowledge, skill, training and experience to assess for themselves whether Mrs Pistorino is a person under disability in respect of the conduct of the litigation and that it is proper to act on such assessments.

19 In this context, counsel drew my attention to a prior medical assessment in April 2012 by Dr Judy Birch obtained for Mr Verduci, who was then Mrs Pistorino's solicitor. Dr Birch assessed Mrs Pistorino as competent at that time to give directions regarding her finances. The report does not disclose the basis for this opinion beyond recording that a mini mental examination was performed, the results of which were compared with an average for a person of Mrs Pistorino's age. It appears that the assessment was not directed to whether Mrs Pistorino was competent to manage her affairs in the context of the litigation in which she is involved. The brief report, which does not disclose instructions, assumptions made, or the author's reasoning process for the conclusions reached, does not permit me to determine that the opinion expressed is directed to the issue that I must consider.

20 In another context, in Re Erdogan's Application: Erdogan v Ekici,[21] after analysing the authorities, I observed that:

There is not a single test by which questions of capacity are resolved. The test of capacity is issue and time specific. Dealing with a question of incapacity in relation to a legal instrument, the High Court said, in Gibbons v Wright, that the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained. The court approved of Hodson LJ's pithy remark in In the Estate of Park, (Dec'd) Park v Park; 'one cannot consider soundness of mind in the air, so to speak, but only in relation to the facts and the subject-matter of the particular case'. (citations omitted)

21 In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and its possible outcomes, including the risks in costs.[22] As Kyrou J has observed, in Slaveski:[23]

The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another. Where a person is a party to a proceeding and is legally represented, he or she will be incapable of managing his or her affairs in relation to the proceeding if he or she does not have the mental capacity to understand the nature of the acts or transactions in respect of which he or she needs to give instructions to the lawyer.

22 In Owners of Strata Plan No 23007 v Cross,[24] Edmonds J identified the following factors as relevant to determining whether one of the parties in that case (who was able to be legally represented) was a 'person under disability':

(a) whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;

(b) whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;

(c) whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and

(d) whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.

These considerations are relevant on this application.

23 Although Kyrou J was concerned with an unrepresented litigant whose capacity was doubted after the trial of the proceeding had commenced, I am assisted on this application by a number of the factors that were identified as relevant considerations in Slaveski.[25] They are:

(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?

(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?

(c) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?

24 Another relevant consideration was identified by the Full Court of the Federal Court in L v HREOC,[26] when they approved what was said by the Court of Appeal in England:

There are valuable statements about the court's power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):

"In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained".

Chadwick LJ (at [65]) said:

"The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend".

25 I have read and considered the following affidavits.

(a) Affidavit of Vincent Verduci sworn 17 May 2012;

(b) Affidavit of Vincent Verduci sworn 21 May 2012;

(c) Affidavit of Dominic Esposito sworn 13 June 2012;

(d) Affidavit of Dominic Esposito sworn 15 June 2012;

(e) Affidavit of Dominic Esposito sworn 12 September 2012, exhibiting confidential affidavit of Dominic Esposito sworn 12 September 2012.

The confidential affidavit of Dominic Esposito sworn 12 September 2012 is the subject of the confidentiality order that I have referred to. I have also restricted by that confidentiality order the transcript of the application before me, as the application was heard in camera to permit counsel to fully develop submissions that were made about their dealings with Mrs Pistorino, and those of their instructing solicitor, Mr Esposito prior to, during and following a mediation.

26 On a consideration of all of this material I find that while Mrs Pistorino is competent to give general and broad instructions, she is relevantly incapable by reason of physical and mental infirmity of managing her affairs in relation to the proceedings. I find for the purposes of Order 15 that Mrs Pistorino is a person under disability. Her incapacity is not demonstrated by medical evidence but is evident from the following matters.

(a) Two solicitors (Mr Verduci and his successor Mr Esposito) have sworn affidavits in which they depose that this is an appropriate case for the appointment of a litigation guardian in order to protect Mrs Pistorino's interests. The evidence of the solicitors, which I accept, is to the effect that Mrs Pistorino gives inconsistent instructions, significantly including as to fundamental matters, forgets basic elements of the proceedings, and is unable to understand the nature or consequence of the proceedings. Mrs Pistorino does not understand the financial risks that she faces, particularly in relation to her taxation liability and the costs of the proceeding. This want of understanding comes from an inability to properly comprehend her position as an income beneficiary for life of her late husband's estate, of which her children are, effectively, the residual beneficiaries. I am satisfied that she does not properly understand the structure of the businesses and investments of the estate or of the parties, particularly trusts. Mrs Pistorino's incapacity is exacerbated by the complexity of the issues in these proceedings, especially the incidence of tax and debt, a complexity that is evident from the joint engagement of Mr T Murphy SC, a taxation specialist, by DLA Piper (solicitors for Antonio Pistorino, the third defendant in proceeding SCI 2009 05816)) and Thomsons Lawyers (solicitors for Pistorino Investments Pty Ltd (A.C.N. 007 217 807), the fifth defendant in proceeding SCI 2009 05816), who addressed the mediation on the complexity of the tax issues involved in the proceeding.

(b) This evidence is sufficient, without more, to support the appointment of a litigation guardian.

(c) I am satisfied that undue influence, significant in its extent, is being exerted on Mrs Pistorino by Antonio Pistorino and Joanne Connell, her son and daughter, who are the defendants in the litigation. There is also significant undue influence being exerted on Mrs Pistorino by Chris Connell, her son in law and Joanne Connell's husband. This influence is being exerted in respect of her finances, her instructions to her solicitors, and her choice of accountant. The influence being exerted on Mrs Pistorino cannot be viewed objectively other than as against her interests. I regard this as evidence of circumstances of the kind referred to by Kennedy LJ in Masterman-Lister of pestering conduct that in an adversarial system carries a risk of abuse of the processes of the court. It is alleged by Mrs Pistorino, in the statement of claim dated 8 June 2010, that Mrs Connell has unconscientiously exploited Mrs Pistorino's mistaken belief, amounting to unconscionable conduct.

(d) There is other evidence of concern about the influence of her children over Mrs Pistorino. Christopher Antony Dale, the solicitor for Joanne Connell in proceeding 5816 of 2009, in an affidavit sworn 21 May 2012, deposes that in 2009 Joanne Connell was concerned that Antonio Pistorino would seek to influence Mrs Pistorino to remove funds from her bank account against her interests and, it is said, that as a consequence, a protective payment regime was commenced in order to meet Mrs Pistorino's expenses. In a lengthy email to Mrs Pistorino's then solicitor Lachlan Hughes, Mr Dale raises a number of other concerns as a basis for Mr Hughes to consider the appointment of a litigation guardian that are consistent with the more recent experiences of counsel and solicitors recounted in the confidential material.

(e) The other matter that supports my conclusion is what was put to me by counsel concerning their inability to obtain appropriate instructions during the mediation and the nature of the response they have received from Mrs Pistorino as their current instructions. These matters, which I will not elaborate because they are protected by legal professional privilege, raise directly the concerns that are discussed by Bell J in Goddard Elliott.

(f) Mrs Pistorino, as she is entitled, refused to attend a medical examination intended to assist with the enquiry as to her capacity prior to the last hearing before the court at which the issue of a litigation guardian was considered. I have carefully considered the medical report from Dr Birch that Mrs Pistorino is 'competent to give directions regarding her finances'. While that is part of the relevant affairs that must be contemplated in this litigation, there are other cognitive skills needed. In any event, I cannot determine what the doctor's conclusion actually means. I am not assisted by that report on the question whether Mrs Pistorino is capable of managing her affairs in respect of the proceeding for the purpose of Order 15. The application must therefore be resolved on the basis of the evidence as it is presented to me.

(g) Finally, I have carefully considered Mrs Pistorino's opposition to the notion of a litigation guardian. While I place weight upon her wishes, the issue of whether she is a person under disability for the purposes of Order 15 is dependent on whether the party is a person under a disability. Counsel has assured me, and I accept, that my attention has been drawn to all matters that mitigate against the appointment of a litigation guardian, that I ought to consider. I am conscious of the significance in the exercise of this jurisdiction on Mrs Pistorino's rights, that Bell J described in Goddard Elliott, and which I described, albeit in a different but related context, in Re Erdogan's Application. Because of Mrs Pistorino's opposition to an appointment, I have carefully considered the inferences of capacity that can be drawn from the evidence available to me.

27 Mr Tim Finemore has agreed to act as the litigation guardian and his written consent has been exhibited as part of the confidential material. Mr Finemore is an appropriate appointee. He has no relevant prior involvement in these matters. Mr Finemore is a principal of Richmond & Bennison and an experienced litigation solicitor. He has been an LIV accredited specialist in commercial litigation since 1993 and a solicitor since 1977. Mr Finemore has provided a retainer agreement and a disclosure statement for a time costing cost arrangement, which I consider to be more suitable that a retainer based on a percentage of the value of the estate, the usual basis on which trustee companies will require remuneration.

28 Mr Finemore's consent is conditional on receiving an indemnity in respect of any liability for costs in the proceedings that may arise by reason of the appointment. That condition is problematic as Mrs Pistorino opposes his appointment.

29 Counsel informed me that there is presently an order of the court that the costs of all parties in the litigation are being paid out of the estate. It is not clear to me what impact that has as between income and capital beneficiaries of the estate or upon taxation issues. I will order that Mr Finemore's costs and expenses be paid in accordance with the proposed retainer agreement and his disclosure statement by the trustee of the Estate of Agostino Pistorino out of the plaintiff's income from the Estate of Agostino Pistorino. I will also order that without further order of the court, the litigation guardian will not be liable for the plaintiff's costs or any costs ordered against the plaintiff.

30 I do not consider that the order that permits recovery of costs from the estate gives the other parties to the litigation any interest in this application. It is likely that the appropriate response, if any is needed because this order affects the quantum of the costs being drawn by Mrs Pistorino, will be to exercise liberty to apply in relation to the order that permits the payment of costs from the estate. If it then becomes relevant, the conditions that I have placed upon Mr Finemore's appointment in relation to costs can be reconsidered.

31 For these reasons, I will order that Tim Finemore be appointed as litigation guardian for Mrs Aurelia Pistorino in respect of each proceeding in this court in which she is a party.

[1] [2012] VSC 87, [548]-[549].

[2] Borchert v Terry [2009] WASC 322 (6 November 2009) [69]. (Footnote from original).

[3] Goddard Elliott v Fritsch [2012] VSC 87, [568].

[6] Slaveski v State of Victoria [2009] VSC 423; (2009) 25 VR 160, 171 [61].

[7] [2004] VSC 308, [4] (Bongiorno J).

[8] See also L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, (1006) [2006] FCAFC 114; 233 ALR 432, 438 [23]-[27].

[9] [2012] VSC 87, [541].

[12] [2009] VSC 423, (2009) 25 VR 160, 185 [35].

[13] [2006] FCAFC 114; (2006) 233 ALR 432, 439 [27], 440 [33].

[14] [2006] FCA 900; (2006) 153 FCR 398, 413 [63].

[15] [2006] FCAFC 114; (2006) 233 ALR 432, 439 [27], 440 [33].

[16] Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511 ]17]; Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51 [36]; L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114, (1006) [2006] FCAFC 114; 233 ALR 432, 438 [26].

[17] Masterman-Lister, ibid at [17]; Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 [17]; Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.

[20] [2006] FCAFC 114; (2006) 233 ALR 432, 438 [26].

[21] [2012] VSC 256, [61].

[22] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, 199-200 [26].

[23] [2009] VSC 423; (2009) 25 VR 160, [26].

[24] [2006] FCA 900; (2006) 153 FCR 398, 413 [61].

[25] [2009] VSC 423, (2009) 25 VR 160, 184 [32].

[26] [2006] FCAFC 114; (2006) 233 ALR 432, [25]