Stokes v McCourt

Appointment of a tutor 8Of present importance, there was an application listed on 17 May 2013. That came before Lindsay J. It was apparent that the plaintiff was then under a legal incapacity, by reason of mental disability. Accordingly, and effectively by consent (or, at least, without opposition) Lindsay J made an order appointing, as her tutor, her father. Lindsay J then dealt with the substance of the interlocutory dispute and in due course resolved it in the plaintiff's favour. 9There have been further interlocutory skirmishes since that date. Up to now, those skirmishes have been conducted, for the plaintiff, by her tutor.

Application for removal of tutor 10I am concerned first of all today with a notice of motion filed by the plaintiff seeking, substantively, an order that the tutor be removed. The primary basis for that application, and the only basis that was addressed in submissions (for reasons to which I will return) is that the plaintiff is no longer a person under legal incapacity.

Preliminary matters 11Before turning to the evidence, it is necessary to note that the tutor has actively, and in my view in an adversarial fashion, resisted the application. Mr Dupree of counsel, for the tutor, submitted that the tutor's attitude was in effect a manifestation of his concern for his daughter, the plaintiff. If that be so, it is legitimate to inquire why the opposition was taken to the extent that it did, including (before the Court's intervention) searching cross-examination of the plaintiff on many matters, not all of them of obvious relevance to the application. 12Mr Dupree submitted that there was no mechanism whereby the plaintiff herself could make the application. He submitted, alternatively, that it would be necessary for the Court to appoint a separate tutor for the plaintiff, to make the application on her behalf. Further, Mr Dupree submitted, the bringing of the application was prohibited by UCPR r 7.14(1). By that rule, a person under legal incapacity may not commence or carry on proceedings except by the tutor. 13I do not accept those submissions. First, the last submission assumes that the plaintiff is still a person under legal incapacity. But secondly, and of more importance, the plaintiff is not, by making the application to remove the tutor, commencing or carrying on proceedings. She is seeking to demonstrate that a tutor is no longer required. 14As to the first submission: the order appointing a tutor was made as an interlocutory order on the basis of the state of affairs that was proved back in May 2013. It simply cannot be correct to say that a superior court of record has no power, on the application of a person having a legitimate interest, to revisit and if necessary review, revoke or amend an interlocutory order made by it. 15To my mind, it would be quite extraordinary if an application to remove a tutor, made by the person to protect whose interests the tutor was appointed, would require the formality and expense of the appointment of what might be called an interlocutory tutor. Such a construction does not seem to me to be consistent with s 56 of the Civil Procedure Act 2005 (NSW).

The real question emerges 16Among many irrelevant matters, the principal ground of dispute related to the plaintiff's capacity. I said a while ago that this was the only ground on which the application was pressed in final submissions. Originally, the parties (if the tutor can for the moment and for convenience be regarded as a separate party to the plaintiff) wished to argue far more wide-ranging issues of fact. After the conclusion of the first day of hearing, and having heard the entirety of the expert evidence (to which I shall return), I expressed the view that, in the interest of saving time and costs, it would be desirable to focus on the real issues arising from the expert evidence. The parties ultimately agreed to a regime, embodied in a document which has been marked for identification B and which will be kept with the papers, to the effect that what would be addressed was the question of incapacity arising from the expert evidence and, I wish to make it perfectly clear, from all such other evidence as is or would become legitimately available to inform that question and its resolution. 17There can be no doubt that since 2009 at least, and perhaps from an earlier date, the plaintiff has been afflicted by a significant mental disability. That disability manifests itself sporadically, in the sense that, to paraphrase Mr Dupree, it waxes and wanes. The evidence shows that the plaintiff has been hospitalised, on an involuntary basis, on a number of occasions from May 2009 to July 2013. In between the first and last groups of admissions, there were admissions in April/May 2010, following an extremely alarming incident in which the plaintiff drove a motor vehicle at very high speed and in a very dangerous way, and was arrested by police only after very considerable difficulty. 18The psychiatric diagnoses that have been made encompass the conditions of bipolar affective disorder type 1, in the view of Professor Leon Petchkovsky (who was called for the plaintiff), or schizo-affective disorder, or a chronic and relapsing psychotic illness with features of both bipolar disorder and schizophrenia, in the opinion of Dr Olav Nielssen (who was called for the tutor). 19Both Professor Petchkovsky and Dr Nielssen agree that the illness or disability, however precisely it may be described, is presently in remission. 20Mr Dupree submitted that the expert evidence was to be viewed against what he called a "longitudinal survey". I understood him to mean, by that phrase, the history of behaviour, suggestive of mental disorder, that the plaintiff has exhibited over the years from at least 2009 onwards. If that is what Mr Dupree meant to suggest, I agree. And that is the task that I have undertaken. 21I add that, as I understand their evidence, that is also the task undertaken by Professor Petchkovsky and by Dr Nielssen. I do not think that Mr Dupree accepted this, in the case of Professor Petchkovsky, but in my view it is plain, reading Professor Petchkovsky's material as a whole and considering his cross-examination as a whole (and not selectively, as Mr Dupree was wont to do), the Professor did indeed take into account the totality of the history as it appeared from all the material to which he had access. It should be noted that Professor Petchkovsky is the plaintiff's treating psychiatrist, on referral from the Mental Health Unit at Lismore Base Hospital, and as such has had access to all the records held by that hospital: a factor abundantly clear from his evidence.

The applicable principles 22Before I turn to the detail of the evidence, it is necessary to pay some attention to the legal background. In what follows, I draw heavily and with thanks, on the judgment of Hallen J in Rappard v Williams [2013] NSWSC 1279 from [62] to [81]. His Honour there reviewed in detail, and incisively, the relevant provisions of the Civil Procedure Act and the UCPR, and relevant case law. In what follows, I shall summarise and paraphrase, without extensive citation, what Hallen J said. 23The provisions of the Uniform Civil Procedure Rules 2005 (NSW) dealing with tutors are to be found in rr 7.13 to 7.18. Rule 7.13 contains an inclusive definition of a "person under legal incapacity". That is said to be, inclusively, "a person who is incapable of managing his or her affairs". 24Section 3 of the Civil Procedure Act 2005 (NSW) contains a more detailed, but again inclusive, definition of "person under legal incapacity": person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes: (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and (c) a person under guardianship within the meaning of the Guardianship Act 1987, and (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and (e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs. 25It was common ground that the s 3 definition is in effect to be read into relevant provisions of the UCPR (see s 11 of the Interpretation Act 1987 (NSW)). 26It was common ground between counsel (Mrs Cotter-Moroz for the plaintiff and Mr Dupree for the tutor) that none of paras (a) to (e) of the definition of "person under legal incapacity" in s 3 had application. Initially in submissions, Mr Dupree relied on para (b). He withdrew that submission. Accordingly, it is unnecessary to dwell upon it. 27Thus, attention focused on UCPR r 7.13 and the cases dealing with it. As I have said, it is (among other things) that rule and those cases that were the subject of analysis by Hallen J in Rappard. 28A number of points flow from the cases, as Hallen J made clear. The first is that the evaluation of the question, whether a person is under legal incapacity, is something that must be undertaken by reference to a particular task and a particular time. In his Honour's words at [76], it "is always a task, and time, specific, matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time". 29Hallen J adopted as appropriate an explanation of the task given, in relation to different but not materially inconsistent English rules, by Chadwick LJ in Masterman-Lister v Brutton and Co [2003] 1 WLR 1511 at [75]. His Lordship there said that, for the purposes of the relevant rules of court in England: 75 For the purposes of Order 80 and now CPR Pt 21 the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the lawwhether substantive or proceduralshould require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the CPR , a litigation friend). 30The approach taken by Chadwick LJ received the approbation of Hallen J in Rappard (in particular, at [77], [78]). Further, although on a somewhat different point, his Lordship's reasons attracted the approval of Campbell JA in Doulaveras v Daher [2009] NSWCA 58 at [155], [156]. 31If one approaches the question according to the test propounded by Chadwick LJ, then it is necessary to ask whether the relevant party (in this case the plaintiff) can deal with the issues in the proceedings with the assistance of appropriate explanation from his or her lawyers and experts retained. As Hallen J said in Rappard at [78], this must extend to all the aspects of conducting a case at law or in equity. It would thus comprehend seeking advice on prospects or on evidence; considering and evaluating risks, costs and reward; dealing with the lawyers in the preparation of the case; and generally being in a position, at any given time, to give appropriate and informed instructions on issues that arise to be dealt with. But, as I have said, that task is not to be seen as one undertaken in a vacuum. It is a task to be undertaken with such advice from the lawyers (and where relevant, from experts) as may be required. 32I stress that point because one of the propositions advanced by Mr Dupree in his detailed submissions was that the cross-examination of the plaintiff showed that she did not properly comprehend the issues in the case. He went in detail to the question from pages 34 to 36 of the transcript of hearing. It is fair to say, on a reading of what was put and said, that in the witness box the plaintiff was not aware of the detail of the issues in the case: either those raised on her claim or those raised by the defendant in his defence. But it must be observed that the plaintiff had not had the assistance (in the witness box at least) of a lawyer to explain the issues to her. It does not follow, from what she said in the particular passage of transcript on which Mr Dupree relied, that she would not be capable of understanding the issues were she given adequate legal assistance. 33With that in mind, I turn to the expert evidence.

The expert evidence 34As I have said, Professor Petchkovsky was the plaintiff's treating psychiatrist following her discharge from Lismore Base Hospital in July 2013. In a brief report written on 4 September 2013, Professor Petchkovsky noted that the plaintiff "has made an excellent recovery and is currently on helpful medication" (which he identified). He said, in a passage which was initially rejected on objection, but admitted after Mr Dupree cross-examined Professor Petchkovsky on it, that in his view the plaintiff "is fully competent and capable of managing her own affairs including matters regarding her solicitor." 35Thereafter, in January 2014, Professor Petchkovsky provided two reports. One was expressed to be in draft. The plaintiff's solicitors wrote to Professor Petchkovsky asking him to explain and expand certain aspects of it. There was some hint of criticism of this, and of the revised report that was produced. I do not accept that there was anything in any way improper in what happened. The questions that were put were entirely appropriate, as I have said seeking clarification and expansion. It was made clear to Professor Petchkovsky that he was not being asked to alter his opinions. It is equally clear that Professor Petchkovsky did not do so. 36After that letter had been sent, Professor Petchkovsky produced a final version of his report. In that report, Professor Petchkovsky made a number of points. He said that the plaintiff "is in stable remission, and getting adequate treatment and support ... is capable of weighing up, in an adequate fashion, the range of financial, social, relational and ethical factors involved in her settlement ... [and there were] no factors like cognitive impairment or impairment of social/emotional intelligence secondary to active Mania or Depression that would impact negatively on her capability to understand proceedings and give instructions". 37Professor Petchkovsky noted that he was required to express an opinion as to "legal incapacity" (he had been given material that would assist him to understand this concept) "especially with regards to being able to give instructions with regards to the current Court proceedings". He concluded: "I am therefore very satisfied that she does not have legal incapacity, and can give proper detailed and specific instructions with regard to her estate [sic] and its management." 38Mr Dupree criticised the use of the word "estate". However, to the extent that this indicates some want of understanding on Professor Petchkovsky's part, it appears to be something shared by Dr Nielssen, who used the same expression. 39Professor Petchkovsky said that the plaintiff's prognosis was "very good". He continued: ... . Risk of major relapse (depressive or manic episode that is so severe that it requires hospitalisation) over the next 2 years is low. With the support of regular appointments, any prodromal (less severe) deteriorations will also be much less likely, and if they occur, can be picked up and rectified early in the piece. With mindfulness training combined with regular support, Vanessa's resilience can improve even further. 40As I have noted, Dr Nielssen was at some variance with Professor Petchkovsky as to the precise identification of the disability that is afflicting the plaintiff. However, and again as I have noted, he agrees that it is presently in remission. 41Dr Nielssen reported what in his view was a problem: "However, there was evidence of subtle poverty of thinking and impairment in capacity for abstract thinking during the recent interview that was consistent with the presence of a chronic form of mental illness." 42He said, further: "I believe her decision-making ability is affected by impairment in her capacity to realistically appraise her position because of residual impairment in her capacity for abstract thinking arising from her underlying mental illness." 43Before I turn to the balance of Dr Nielssen's comments, I should note that there appears to be some circularity in this process of reasoning. In the first quotation, Dr Nielssen suggests that the subtle poverty of thinking and impairment in capacity for abstract thinking was consistent with the presence of chronic mental illness - i.e., as I understand it, an indicator of the presence of mental illness. However, in the second quotation, Dr Nielssen appears to be saying that it is the existence of that mental illness (which, he had suggested, was demonstrated by the thinking problems to which he referred) that caused the impairment in thinking. The same condition appears to be both cause and effect. 44Regardless of that perhaps overly literal interpretation of what Dr Nielssen said (and accepting, if I have been "rather literal", then on his view that may be indicative of some chronic form of mental illness affecting the giver of these reasons), there are, to my view, very significant problems with Dr Nielssen's diagnosis. He was asked in cross-examination to explain the "subtle poverty of thinking" to which he referred. Specifically, he was asked to identify the particular questions and answers that enabled him to identify the presence of mental illness. 45Dr Nielssen referred (T73.25) to what he said was the plaintiff being "doggedly set on the amount of $1 million". When asked to identify where that was recorded in the report, he was unable at first to do so, referring to a passage where in fact it had been he who mentioned that sum. 46When pressed on the point, Dr Nielssen referred to another paragraph of his report, which said no more than that the plaintiff had "confirmed that she had discussed entering a financial settlement with [the defendant] and...wanted to accept his offer of one million dollars ...". There was no other material to which Dr Nielssen was able to point which showed that the plaintiff was "set" on that amount, let alone that she was set in some way that could be described as "dogged". 47In short, when one considers the whole of Dr Nielssen's evidence, including the opportunities that he was given to explain and expand upon the somewhat abrupt and conclusory statements to which I have referred, he was unable to support them in any way which enables the Court to make an assessment of his reasoning processes and their validity. 48Mr Dupree submitted that Dr Nielssen was an expert in the field of psychosis and that Professor Petchkovsky, on his own admission, was not. The first point may be accepted. It is clear that Dr Nielssen has made a particular study of psychoses, and that he has been heavily involved in professional development in this field. But to say that Professor Petchkovsky is not an expert is wrong; and a fortiori so, to say that he conceded this. The submission rests on what in my view is an incomplete and selective reading of the transcript. I set out at first the questions and answers from T42.18-.25: Q. So would it be a correct understanding of your last series of answers that you don't hold yourself out to be an expert in psychosis? A. No. I don't hold myself out to be any more of an expert in psychosis than any of my other colleagues. Q. But do I understand it correctly from that last answer that you don't say to His Honour that you are an expert in psychosis? A. No. I don't say to His Honour that I am an expert in psychosis. 49I turn to what Professor Petchkovsky said, on the same topic, at T58.1-.7: Q. Well, you accept that he is an expert on psychosis, don't you? A. I accept that he is an expert on psychosis insofar as every psychiatrist by the nature of their profession and training has to be an expert on psychosis and if they're not, they should not be practising psychiatry, so of course I expect-- Q. Thank you. A. --accept that. 50It is perfectly clear, considering Professor Petchkovsky's evidence in its totality (and not selectively) that he was asserting that it is necessary for any psychiatrist to be an expert on psychosis and that he himself had the expertise that is possessed by psychiatrists generally. It is equally clear that, in the second answer given on page 42, Professor Petchkovsky was saying no more than that he did not hold himself out as having any expertise over and above that of any psychiatrist in the field of psychosis. To put it another way, Professor Petchkovsky is to be understood, in my view, as accepting only that he did not have the degree of expertise that, undoubtedly, Dr Nielssen does have. 51In my view, Professor Petchkovsky is abundantly qualified to express the opinions that he does. 52In considering the extent to which there is a conflict between Professor Petchkovsky's evidence and that of Dr Nielssen, it is necessary to bear in mind that the former is, and for some time has been, the plaintiff's treating psychiatrist. To my mind, that has given Professor Petchkovsky an invaluable opportunity of observing the plaintiff on repeated occasions, and of forming (in an entirely appropriate professional way) a relationship in which she has some degree of confidence in him, and in the course of development of which he has been able to assess her in a more detailed way than it was possible for Dr Nielssen to do in the one hour that he spent with her. 53I accept Professor Petchkovsky's evidence, and, to the extent that it is necessary to do so, I prefer his evidence to that given by Dr Nielssen. 54I should note that there was an attack made on Professor Petchkovsky, on the basis that he had not set out matters of history in his report. That is certainly correct in relation to the first and brief report of September 2013. It is simply incorrect in relation to the two later reports (the draft and final reports of January 2014). In each of those last two reports, Professor Petchkovsky sets out verbatim what appeared to him to be relevant matters of history. In the sections of the report on which Mr Dupree relied (which stated that there was "nil" psychiatric or medical history), it is clear, as Professor Petchkovsky said, that he was saying that there was no relevant psychiatric history other than that noted at length in his report, and no other relevant medical history. 55Again, in my view, this submission involves both a selective reading of what it was that Professor Petchkovsky said and, equally, a deliberate overlooking of much of what is clearly to be found in his last two reports. 56The effect of Professor Petchkovsky's opinion is, as I have said, that in his view the plaintiff is not suffering from any legal incapacity (insofar as that question lies within the professor's field of expertise), and is in a position to give proper detailed and specific instructions in relation to the litigation. That appears both from the last two reports and from his evidence in cross-examination. I see no reason to doubt it. It may be noted that Dr Nielssen does not express an opinion to the contrary. He says, at most, that the decision making ability is affected by what he perceives as impairment in the plaintiff's thinking capacity. But as I have pointed out already, that passage of Dr Nielssen's report is both circular in its reasoning and not linked, by any process of reasoning that I can discern, to such shreds of evidence as Dr Nielssen was able to point to in support of it. 57It is of course correct to say, as Mr Dupree submitted and as both the experts recognised, that the illness may manifest itself again in the future. Professor Petchkovsky's view is that the plaintiff's regime of medication and other treatment is keeping the illness under control. Dr Nielssen appears to agree with this. There may come a time when that does not happen: either for some medical reason which has not been explored, or perhaps (more simply) because the plaintiff decides to discontinue her medical regime without seeking appropriate advice. But if that happens, and if there is thereby some impact on the plaintiff's ability to give instructions, one would expect her legal advisers to realise this. 58Before I leave the medical evidence, I should note that Professor Petchkovsky did refer to the opinion expressed by Dr Nielssen that the plaintiff's decision-making ability is affected by some impairment in her capacity for abstract thinking. Professor Petchkovsky did not agree that there was residual impairment. He said that abstract thinking impairments are features of acute mania and depression, but resolve when the acute phase lifts. He said, further, that the acute phase had lifted. 59Professor Petchkovsky was not, as I recall, cross-examined on that particular expression of opinion. Nor was Dr Nielssen asked whether or not he agreed with it. Accordingly, even if one were to think that Dr Nielssen's views should be given significant weight (and for the reasons I have indicated, I do not), the ultimate view, on which so much reliance has been placed, seems to me to be answered by this aspect of Professor Petchkovsky's evidence, which I accept.

Decision 60I referred at [57] to the likelihood that, if for some reason there were a deterioration in the plaintiff's position, such as to render her under an incapacity, her lawyers would be likely to perceive it and act upon it. I cannot imagine that a lawyer, who has any reason at all to think that his or her client is under an incapacity, would continue to act without seeking the appointment of a tutor. Both ethical considerations and, perhaps more obviously, considerations of self-protection would tell very strongly against that. 61In this context, as Chadwick LJ pointed out in Masterman-Lister at [66] (a paragraph cited with apparent approval by Campbell JA in Doulaveras), "the test of mental capacity should be such that, in the ordinary case, the need for a next friend or guardian ad litem should be readily recognised by an experienced solicitor." 62Indeed, that was what happened in this case. The plaintiff's solicitors recognised the need for the appointment of a tutor, and caused that application to be made to Lindsay J. 63As I have said, the proceedings were commenced in 2010. To the extent that it matters, proceedings seeking the same relief had been commenced, in the Supreme Court of Queensland, the previous year; they have been dismissed. 64It is apparent that the solicitors formerly acting for the plaintiff on her own instructions, and now representing the tutor, proceeded on the basis that, up until May 2013, the plaintiff was not under any legal incapacity. I have no doubt that, if any sign of incapacity had manifested itself before May 2013, they would have taken action. But it is equally clear that the disease or disability afflicting the plaintiff, whatever it may be, has been present since at least 2009: that is to say, since before the institution of the current proceedings. It seems to me to follow, almost inevitably, that to the extent that the disease was in remission over the period from 2010 when the proceedings were commenced to May 2013 when the tutor was appointed, the plaintiff's then, and very experienced, legal representatives did not consider that it was placing her under any legal incapacity. 65To my mind, that consideration offers a real and solid "reality check" to the doubt advanced by Mr Dupree. 66I accept, as Mr Dupree submitted, that it is the plaintiff who bears the onus of showing that the appointment of the tutor should be set aside. I accept, again as submitted by Mr Dupree, that the question of assessment of capacity requires consideration not only of the two experts' reports but also of the entire relevant history. As I have tried to show, the experts have considered the history and to the extent that I think it relevant, I too have done so. I accept that (for example) the history shows that the remission currently enjoyed by the plaintiff may not be permanent; indeed, it is not in the nature of remission, in a definitional sense, to be permanent. 67However, taking all those matters into account, and looking at the evidence in its entirety, I have come to the conclusion that the plaintiff has made good her prayer for relief for removal of the tutor. Accordingly, I make the order sought in prayer 1 of the plaintiff's notice of motion filed on 30 September 2013.

Costs; the other application 68That leaves unresolved the question of costs. It also leaves for resolution the second notice of motion which has been listed for hearing. That is a notice of motion by which the plaintiff and the defendant seek to have existing orders of the Court, in relation to valuation, stayed so that they can consider the prospect of mediation and, if they think it appropriate, attend a mediation. 69To my mind, bearing in mind what has happened over the last three or four years, it is entirely appropriate that there should be a mediation. In saying that, I take into account not only the nature of the dispute but also evidence of some, if not total, reconciliation between the plaintiff and the defendant. It seems to me that those positive matters should be explored before yet further money is spent on legal and expert costs. 70For those reasons, if the plaintiff (by now, freed of her tutor) and the defendant wish, I will stay the relevant orders and give directions for mediation. 71It will be necessary for there to be separate submissions in respect of costs.

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: 14 February 2014