Plaintiff v Defendants

2 For reasons outlined below, I conclude that a litigation guardian ought not be appointed.

3 The plaintiff was examined by Dr Alex Apler, a psychiatrist, on 17 June 2020 at the request of the fourth defendant. Following a report (undated) by Dr Apler,[1] the defendants raised concerns with the plaintiff's solicitors as to whether a litigation guardian was required. In correspondence dated 25 September 2020, the defendants asserted that appointment of a litigation guardian was necessary as a result of Dr Apler's diagnosis. The diagnosis is discussed further below.

4 The plaintiff's solicitors subsequently arranged for opinions from two psychiatrists, his treating psychologist and the plaintiff's general practitioner. One psychiatrist and the general practitioner thought that a litigation guardian may be beneficial, whilst the other psychiatrist and the psychologist stated it was not required and the latter opined that such an appointment could adversely affect the plaintiff. The plaintiff himself is strongly opposed to the appointment of a litigation guardian. Neither the plaintiff's counsel nor his solicitor consider it necessary to appoint a litigation guardian.

5 Given the circumstances above, and in view of the defendants' position, the plaintiff's legal practitioners understandably concluded the Court ought rule on the issue. By orders made on 5 February 2021, the plaintiff was required to make an application for a litigation guardian. The plaintiff's solicitors made the application by summons filed on 9 February 2021.

6 The defendants were on notice of the application, and did not wish to make submissions. They appeared at the hearing to observe it. The Court was subsequently closed to the defendants in order to hear the substance of the application from the plaintiff and his legal practitioners. During the closed part of the hearing, I heard directly from the plaintiff's counsel and solicitor. I also heard directly from the plaintiff. I will make orders that the transcript of the closed part of the proceeding not be disclosed other than to the plaintiff and his legal practitioners, save by orders of the Court.

7 The evidence before the Court consisted of an affidavit deposed by the plaintiff and an affidavit by his solicitor. Given the contents of the plaintiff's affidavit, which relate to this application, I shall make a confidentiality order in respect of it. It will not be available for inspection.

8 The affidavit by the plaintiff's solicitor, Kim Price, is affirmed on 4 February 2021 ('the Price affidavit') and exhibits various medical opinions. Mr Price indicated that he intended to provide the defendants with those medical opinions. Accordingly, a confidentiality order is not required in respect of the Price affidavit and exhibits.

9 Rule 15.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules') states that: 'Where after a proceeding is commenced a party to the proceeding becomes a person under disability, the Court shall appoint a litigation guardian of that party.'

10 Rule 15.01(b) of the Rules defines a 'person under a disability' as 'a person who is incapable, by reason of injury, disease, senility, illness or physical or mental infirmity, of managing that person's affairs in relation to the proceeding.'

11 Rule 15.03(4)(a) of the Rules provides that the Court may appoint a litigation guardian where the interests of a party who is a person under disability so require.

12 The plaintiff cited Pistorino v Connell_[2]_ in respect of the applicable principles. I agree those principles are applicable. They are included in the helpful summary below of principles given by Derham AsJ in Vishniakov v Lay.[3]

The power of the court to appoint a litigation guardian in ord 15 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules) is derived from the inherent jurisdiction of the Crown as parens patriae to care for those who are unable to care for themselves.[4]

...

The rules do not restrict who may apply to the court for the appointment of a litigation guardian. A judge may raise the issue of incapacity on the Court's own motion.[5] A litigation guardian may also be appointed on the application of a party's solicitor.[6]

There is no general rule as to whether notice should or should not be given to other party or parties. Each application must be considered on its own circumstances.[7] 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.[8]

The following principles have been established in authorities in Australia and the United Kingdom:

(a) There is a presumption that everybody of full age has the mental capacity to manage their own affairs, including the commencement and defence of legal proceedings. The burden of proving to the contrary rests with those asserting incapacity.[9]

(b) The law requires that a person must have the necessary mental capacity if he is to do a legally effective act or make a legally effective decision for himself.[10]

(c) The authority of a lawyer to represent a client depends on the client having the requisite mental capacity.[11] 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 know the client lacked the mental capacity to give the instructions or could not be reasonably satisfied the client had that capacity.[12]

(d) 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.[13] It is therefore the solicitor's responsibility to be reasonably satisfied that the client has the mental capacity to participate in the proceeding and to instruct.[14] If the issue cannot be resolved to the reasonable satisfaction of the solicitor, they must raise the issue with the court. It is the court which has the final responsibility to determine the issue.[15]

(e) A solicitor who persists with representing a client who has lost mental capacity is liable to have costs awarded against them on an indemnity basis even if there is no impropriety.[16]

(f) The authority of a court-appointed litigation guardian may be challenged, and a proceeding issued by them dismissed, where the party is shown to be capable of managing their affairs.[17]

(g) The appointment of a litigation guardian protects the person under a disability and the processes of the court as these apply to the parties generally.[18]

(h) Provisions of the kind established by ord 15 are procedural and not substantive law designed to ensure that:

(i) there is someone answerable to the Court on behalf of the litigant with a disability;

(ii) crucial decisions affecting that litigant can be properly and responsibly made.[19]

(i) An application for the appointment of a litigation guardian for a person is very serious 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'.[20]

(j) There is no universal test for determining whether a person is capable of managing his or her affairs.[21] Lack of capacity is usually denoted by a person's inability to understand the nature of an event or transaction when it is explained.[22]

(k) The words 'in relation to the proceeding' in r 15.01 are important because they focus on the person's ability to bring or defend a particular proceeding rather than on whether the person is able to manage his or her affairs generally or in relation to some other transaction.[23]

(l) 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.[24] A person can have the requisite capacity for one proceeding and lack it for another.[25]

(m) A person will be incapable of managing their affairs in relation to the proceeding if they do not have the mental capacity to understand the nature of the acts or transactions in respect of which they need to give instructions to the lawyer.[26]

(n) Depending on the nature and circumstances of the particular case, there may be many factors relevant to the determination of whether a person lacks capacity in relation to a proceeding.[27] As a general rule, however, the following have been found to be relevant:[28]

(i) whether the person had the ability to understand that they required advice in respect of the relevant legal proceeding;

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

(iii) whether the person had the ability to instruct the advisor with sufficient clarity to enable that advisor to understand the situation and to advise the person appropriately; and

(iv) 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.

(o) The level of mental capacity required by a litigant in person is greater than that required to instruct a lawyer, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.[29]

(p) A person who does not have the mental capacity to represent themselves may have sufficient capacity to be able to give instructions to a lawyer to represent them.[30]

(q) The means by which the court will determine whether a guardian should be appointed varies from case to case. It is prudent, but not essential, that the decision whether a party lacks the relevant capacity be based on a medical assessment, or the assessment of another appropriately qualified expert.[31] However, the court is entitled to rely on its own observation to make an assessment about the capacity of a party or to rely on other evidence, including the assessments of legal practitioners.[32] This is so particularly where:

(i) there is no medical evidence available or the party refuses to submit to an expert assessment;

(ii) the lack of capacity is so clear that medical evidence is not called for.[33]

13 Turning first to the medical evidence in respect of whether the plaintiff is a person under a disability, that is, 'incapable, by reason of injury, disease, senility, illness or physical or mental infirmity', of managing [his] affairs in relation to the proceeding. I will address the medical reports exhibited to the Price affidavit in chronological order.

14 The report of Dr Apler, forensic psychiatrist (cited above), and following an assessment of the plaintiff in June 2020, states that the plaintiff has a psychiatric condition and that 'he probably has schizophrenia and associated depression'. Dr Apler opined that the plaintiff had 'paranoid delusions and auditory hallucinations [that] are likely to improve with treatment'. His opinion was that the plaintiff requires treatment with antipsychotic medication, and that he requires 'ongoing monitoring and treatment by an adult psychiatric mental health service consisting of a psychiatrist, psychologist and case manager, but this would depend on his willingness to engage in such treatment.' Dr Apler's opinion was that the plaintiff's 'schizophrenic illness' affected his capacity to study, engage in employment and to enjoy and lead a normal life. The report also made reference to 'a decline in functioning and social withdrawal, which are part of schizophrenia, are harder to treat as these symptoms... tend not to respond to medication, though they can improve with appropriate counselling'.

15 Significantly, Dr Apler's report does not include an opinion on whether or not the plaintiff needs a litigation guardian. He does not opine as to whether or not the plaintiff is capable of managing his own affairs in relation to the proceeding. Nor should such an inference be drawn from the report. It does not contain any analysis, for instance, on the plaintiff's ability to communicate with his legal practitioners, give instructions and make decisions in relation to the proceeding.

16 Moreover, even accepting the diagnosis of schizophrenia (which is in dispute), the inference should not be drawn that the plaintiff is incapable of managing the proceedings. Dr Apler's report, based on examination approximately eight months ago, indicates that the plaintiff's condition may respond to treatment and appropriate counselling. As will be discussed below, the plaintiff has been undergoing counselling, and his treating psychologist opines that he is capable of managing his affairs.

17 The report of Dr Wendy Triggs, psychiatrist, is dated 25 September 2020.[34] Dr Triggs analyses Dr Apler's report. She does not support Dr Apler's diagnosis of schizophrenia. In answer to the question asked by the plaintiff's solicitors as to whether she believes the plaintiff requires a litigation guardian, Dr Triggs provides the following answer.

Given his decline over many years, poor self-care and marked manifestations of Post-Traumatic Stress Disorder, clinical depression and substance abuse, I would be supportive of an application for a litigation guardian.

18 Dr Triggs' conclusion does not contain any detailed analysis on the plaintiff's ability to communicate with his legal practitioners to give instructions, understand legal advice, and make decisions in relation to the proceeding. Moreover, Dr Triggs refers to seeing the plaintiff some seven months prior to Dr Apler seeing him, and refers to her review of the plaintiff in November 2019. I gather from that information, that she has not met with the plaintiff since then. Given this, and also the lack of detailed analysis for Dr Triggs' conclusion, I considered it outweighed by the opinions contained in the more recent psychiatric report of Dr Redmond together with the report of the plaintiff's treating psychologist.

19 The report of Dr Nigel Denning, the plaintiff's treating psychologist is dated 19 October 2020.[35] He read the reports of Dr Apler and Dr Triggs and concurs with the latter that the plaintiff does not fit the diagnostic criteria for schizophrenia. Dr Denning does not support the appointment of a litigation guardian and his opinion is that such an appointment would cause an adverse effect to the plaintiff's functioning and is likely to stimulate his trauma related to lack of control. Dr Denning refers to seeing the plaintiff consistently since Dr Triggs' assessment. His opinion is that 'there has been no clinical deterioration in this time that would render [the plaintiff] unable to manage his own affairs'.

20 The report of Dr Anne Porter, the plaintiff's treating general practitioner, is dated 30 October 2020 and states a litigation guardian may be beneficial.[36]

While neither his age nor medical condition is such that would disqualify him from understanding or making decisions in regards to the litigation, I feel that with this being such a stressful time in his life that he may not fully comprehend the issues involved, therefore I believe that a 'litigation guardian' [sic] may be beneficial in his case.

21 Dr Porter's opinion is significant as the plaintiff's treating general practitioner. However, Dr Porter is not a specialist. Moreover, she states the plaintiff is not disqualified by age or mental condition from understanding or making decisions in regards to the litigation. These are key factors around capacity and suggest a litigation guardian is not required. Nor does Dr Porter state that it is necessary. Rather, she considers it 'beneficial' because the current stress in his life may preclude him from comprehending the issues involved.

22 The report of Dr Erin Redmond, psychiatrist, is dated 15 January 2021.[37] She interviewed the plaintiff on 1 December 2020. Dr Redmond had the benefit of having all the medical reports above, as well as a number of earlier medical reports and other material. She performed a cognitive assessment of the plaintiff and found it was within the normal range (28/30). She opines his cognitive function is intact and sees no current risk factors. She did not elicit any psychotic symptoms or auditory hallucinations. Dr Redmond notes the plaintiff believes his mental state is much improved due to counselling. Dr Redmond states that the plaintiff sees Dr Denning regularly and this has settled his symptoms. She diagnoses the plaintiff with post-traumatic stress disorder (in partial remission) and other conditions in remission. Dr Redmond believes that the plaintiff will need to see Dr Denning and his general practitioner each on a monthly basis. Dr Denning opines that the plaintiff's mental state is stable. She states that he does not require a litigation guardian. Importantly, Dr Redmond opines that the plaintiff 'has the capacity to fully understand and make decisions in relation to the litigation' and 'is capable of understanding legal advice and making appropriate decisions in relation to the litigation'.

23 I accept Dr Redmond's conclusion that the plaintiff does not require a litigation guardian. Dr Redmond is a specialist and she has interviewed the plaintiff most recently. Her conclusion follows a detailed analysis of the plaintiff's cognitive function, as well as review of other medical reports, and an interview with the plaintiff. It is also consistent with Dr Denning's conclusion that a litigation guardian is not required.

24 The defendants support the appointment of a litigation guardian on the basis of Dr Apler's report. On the other hand, the plaintiff is strongly opposed to the appointment of a litigation guardian. His solicitor and counsel, who have acted for him for more than two years, do not believe a litigation guardian is required.

25 On the basis of the medical reports of Dr Denning and Dr Redmond, and a frank discussion with each of the plaintiff, his solicitor and counsel, during the closed part of the hearing, and the plaintiff's own affidavit, I am satisfied that he has capacity. More particularly, I am satisfied that he has capacity to manage his affairs in relation to this proceeding and that he is not a 'person under a disability' within the meaning of r 15.01(b) of the Rules.

26 A litigation guardian ought not be appointed. The application will be dismissed.

ROMAN CATHOLIC TRUST CORPORATION FOR THE ARCHDIOCESE OF MELBOURNE

[1] See exhibit 'KP1' to the affidavit of Kim Price affirmed on 4 February 2021 ('Price affidavit').

[2] [2012] VSC 438.

[3] (2019) 58 VR 375, 384-5 [24], [28]-[30].

[4] Howell v Lewis (1891) 61 LJ Ch 89; Secretary, Department of Health and Community Services v JWB [1992] HCA 15; (1992) 175 CLR 218, 258 (Mason CJ, Dawson, Toohey and Gaudron JJ) (Marion's case); L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; (2006) 233 ALR 432, 438 [23]-[24] (L v HREOC); A v City of Swan [No 5] [2010] WASC 204, [62] (City of Swan); Goddard Elliott v Fritsch [2012] VSC 87, [552] (Goddard Elliott).

[5] Slaveski v Victoria [2009] VSC 423, [61]; Pistorino v Connell [2012] VSC 438, [8] (Pistorino).

[6] Farrell v CSL Ltd [2004] VSC 308, [4]; Pistorino [2012] VSC 438, [2], [8], [31].

[7] Pistorino [2012] VSC 438, [13].

[9] Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [36] (Murphy); L v HREOC [2006] FCAFC 114; (2006) 233 ALR 432, 437-38 [20]; Masterman-Lister v Brutton & Co [Nos 1 and 2] [2003] 1 WLR 1511, 1520 [17] (Masterman-Lister); City of Swan [2010] WASC 204, [66]; Owners of Strata Plan No 23007 v Cross [2006] FCA 900; (2006) 153 FCR 398, 414-15 [66]-[68] (Owners of Strata Plan No 23007); Slaveski v Victoria [2009] VSC 596, [25]-[26] (Slaveski); Goddard Elliott [2012] VSC 87, [546].

[10] Masterman-Lister [2003] 1 WLR 1511, 1533 [57] (Chadwick LJ); Goddard Elliott [2012] VSC 87, [547].

[11] Goddard Elliott [2012] VSC 87, [548].

[14] Borchert v Terry [2009] WASC 322, [69]; Goddard Elliott [2012] VSC 87, [549].

[15] Goddard Elliott [2012] VSC 87, [568]; Pistorino [2012] VSC 438, [6].

[16] Yonge v Toynbee [1910] UKLawRpKQB 219; [1910] 1 KB 215, 228; (Buckley LJ). Goddard Elliott [2012] VSC 87, [549].

[17] J (by her next friend) v J [1953] P 186, 191; Martin (1973) 20 FLR 345, 348; Goddard Elliott [2012] VSC 87, [550].

[18] Masterman-Lister [2003] 1 WLR 1511, 1525 [31] (Kennedy LJ), 1536 [65] (Chadwick LJ); City of Swan [2010] WASC 204, [63]-[65]; Goddard Elliott [2012] VSC 87, [552].

[19] State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395, 400-401 (Kirby J). Kirby J also stated that another purpose was to ensure that a person exists who can bear any costs ordered against the person under disability at the end of the litigation. That is no longer apt to the Victorian situation. Dyke v Stephens [1885] UKLawRpCh 202; (1885) 30 Ch D 189 ; Rhodes v Swithenbank [1889] UKLawRpKQB 48; (1889) 22 QBD 577, 578-9; See also R v Registrar of the County Court; Ex parte Farrington [1927] ArgusLawRp 54; [1927] VLR 406, 409-10 where Cussen J said it was an open question whether the purpose of a litigation guardian is to provide for the defendant's costs or to provide for the care of the infant's interests in connection with the action or suit.

[20] Masterman-Lister [2003] 1 WLR 1511, 1520 [17] (Kennedy LJ); Goddard Elliott [2012] VSC 87, [553].

[21] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [33]; Slaveski [2009] VSC 596, [26].

[22] Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 437 (Dixon CJ); Masterman-Lister [2003] 1 WLR 1511, 1521 [18] (Kennedy LJ), 1533 [58] (Chadwick LJ); see also Goddard Elliott [2012] VSC 87, [555].

[23] Slaveski [2009] VSC 596, [27].

[24] Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, 199 [23] (Dalle-Molle); Slaveski [2009] VSC 596, [28]; Pistorino [2012] VSC 438, [20]-[22].

[25] Slaveski [2009] VSC 596, [28].

[26] Martin v Azzopardi (1973) 20 FLR 345, 347-8; Slaveski [2009] VSC 596, [29].

[27] See for example the list applicable to a self-represented litigant in Slaveski [2009] VSC 596, [32].

[28] Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [35]; Slaveski [2009] VSC 596, [30].

[29] Slaveski [2009] VSC 596 [31]; Murphy [2003] NSWCA 249; (2003) 58 NSWLR 51, 58 [35]; Goddard Elliott [2012] VSC 87, [557].

[30] Skrijel v Mengler [2003] VSC 128 [5]; Slaveski [2009] VSC 596, [33]; Goddard Elliott [2012] VSC 87, [558].

[31] Masterman-Lister [2003] 1 WLR 1511, 1520 [17] (Kennedy LJ); Pistorino [2012] VSC 438, [16] - [17].

[32] Slaveski [2009] VSC 596; Pistorino [2012] VSC 438, [17].

[33] Pistorino [2012] VSC 438, [17].

[34] Exhibit 'KP-2' to the Price affidavit.

[35] Exhibit 'KP-4'to the Price affidavit.

[36] Exhibit 'KP-3' to the Price affidavit.

[37] Exhibit 'KP-5' to the Price affidavit.