TA v IA [2017] NSWSC 1597 | Case summary

TA v IA [2017] NSWSC 1597 | Case summary | Zoe

[4]

Dr Jungfer's November 2014 report

Dr Jungfer, who gave evidence before me on the present application, examined IA on 17 November 2014 to assess his capacity to give instruction with relation to his legal matter. In Dr Jungfer's report dated 18 November 2014 (annexure E to Mr Gillis' 19 January 2015 affidavit in the present proceedings), Dr Jungfer stated that at the time of her assessment of IA in 2009 she was of the opinion that he had "an adjustment disorder with depressed and anxious mood within the context of chronic pain" and relatively large doses of a narcotic analgesia (p 2). Dr Jungfer listed the medications IA was then taking, which she considered to be of relatively high dose, and stated that all those medications "have an impact with regards to cognition and decision making ability" (p 2).
Dr Jungfer's assessment of IA, following her examination of him on 17 November 2014, was that he was thought disordered. Dr Jungfer explained it (p 4) thus: Disorder of thought is a person's ability to communicate in a clear, consistent and logical fashion. [IA]'s conversations were illogical, they were frequently peppered with information that was not related to the questions that were being asked, were tangential, lacked goal direction and did not clearly communicate his ideas. In my opinion this was a reflection of formal thought disorder.
In her report, Dr Jungfer set out four tests as to what in her opinion constituted capacity to provide instructions for legal counsel: ability to understand the relevant information; ability to reason about the potential risks and benefits of particular options; ability to appreciate the nature of the situation and the consequences of one's choice; and ability to express the choice and adhere to the decision. She concluded (p 7), as to the first, that IA's ability to understand information relevant to the legal proceedings "was influenced by his cognitive processes, that is his impairments of cognition as well as his mental state particularly his paranoid delusional system".
As to the second, Dr Jungfer said that in clinical assessment IA demonstrated marked rigidity of thinking; was unable to take on and consider information; was unable to propose alternatives to the decisions he forms and was not prepared to discuss the risks associated with any decision he makes. Dr Jungfer concluded that he failed the second arm of the test of capacity as he lacked the ability to reason about the risks and benefits of his options.
As to the third, Dr Jungfer again concluded that IA failed that test, stating her opinion that IA's thought processes and behaviour demonstrated that he could not appreciate the seriousness of the situation or the consequences of his decisions.
Finally, as to the fourth arm of the test of capacity, Dr Jungfer considered that IA did satisfy this, "in that he does have a choice and he does stick with that choice or decision that he has made" but qualified this by saying that "[t]he problem is that his decision making process is impaired, that he is unable to take in the information that is required and therefore ultimately lacks capacity" (p 8).
Dr Jungfer's conclusion as at November 2014, therefore, was that IA did lack legal capacity (p 8): It is my opinion that his cognitive functioning in particular his ability to attend, to problem solving, reason, to learn new information, to make decisions is impaired on the basis of his poly-substance ingestion and that his psychiatric illness, that is his paranoid psychosis which directly influences his decision making processes and his ability to take in and complete the decision making activity.
Pausing here, at the hearing before me Dr Jungfer confirmed her opinion and, relevantly, Dr Selwyn Smith (IA's former treating psychiatrist, on whose opinion IA had relied when the issue as to his capacity was first considered in this Court by Lindsay J) not only agreed that Dr Jungfer's outline of the test for incapacity was fairly stated but also was firm in his opinion that IA now lacks capacity to conduct litigation on his own behalf or to instruct a solicitor or counsel in respect of the litigation.

[5]

Application in December 2014 before Norton SC DCJ by IA for a payment out

Going back to the timeline in relation to this matter, the next relevant event was that the matter came before Norton SC DCJ in the District Court on 1 December 2014 for the hearing of an application by IA for a payment out of court on the basis of hardship. IA was representing himself but there was also an appearance on that occasion by Mr Stone of Counsel as amicus curiae. Her Honour granted IA leave to obtain a doctor's report by 8 December 2014 addressing the issue as to whether he needed a tutor (see [4] of her Honour's reasons published on 4 February 2015).
When the matter came back before her Honour on 18 December 2014, IA tendered two documents (see her Honour's reasons at [12]), the first being a handwritten note dated 4 December 2014 from Dr Smith (IA's psychiatrist) stating that IA "has the capacity to instruct counsel and follow legal proceedings"; the second being a letter from Dr Augusto A Tablante (IA's general practitioner) certifying that IA "has at this stage legal capacity to proceed with the court case" (but adding that he may need a Hindi interpreter so he can fully understand the proceedings). Copies of those letters are annexed to Mr Gillis' 19 January 2015 affidavit in these proceedings.
Norton SC DCJ found the report of Dr Jungfer more persuasive than the letters from IA's general practitioner and psychiatrist ([18]), pointing to the lack of any reasoning disclosed in the letters. Her Honour did not think it appropriate to deal with the question of payment out until a tutor had been appointed and said that, as there was no person willing to become IA's tutor, she could not make any orders relevant to that matter ([18]). Her Honour noted that a senior solicitor in the office of the NSW Trustee (Ms Phang) had attended Court and had indicated to the Court on 18 December 2014 that the NSW Trustee would not become involved unless a financial management order was first made.

[8]

Hearing in protective list on 20 July 2015

The application for appointment of a tutor came before Lindsay J, sitting as the Protective List judge, on 20 July 2015. IA appeared in person on that occasion.
By this time, Dr Smith had issued a report headed "To Whom It May Concern" dated 13 February 2015, which he had subsequently corrected in a letter dated 6 March 2015 (there being a typographical error in the use of the word "incapacity" instead of "capacity"). The corrected version of Dr Smith's report expressed the opinion that IA had "the capacity to proceed in regard to settlement of his matter" and that he did have the capacity to manage his affairs. It is clear from that report that Dr Smith had had regard, among other things, to a recent MRI scan of IA's brain (which he said had revealed a "small 3-4mm left fronttemporal white matter lesion" that in his opinion was not consistent with cognitive impairments that would intrude into his capacity to instruct counsel or manage his affairs); as well as to the initial report prepared by Dr Jungfer on 21 October 2009 (which Dr Smith noted had diagnosed an Adjustment Disorder with Depressed and Anxious Mood and narcotic intoxication) and Dr Jungfer's 18 November 2014 report.
Lindsay J, having had regard to evidence as to the course of the District Court proceedings, the available medical evidence (including Dr Jungfer's report), Norton SC DCJ's reasons for judgment, and his own observations of IA in Court, proceeded to declare that IA was incapable of managing his affairs and made orders including orders that IA's estate be subject to management under the NSW Trustee and Guardian Act and that management of the estate be committed to the NSW Trustee (see A v A at [103]).
His Honour did not at the time deliver formal reasons for judgment in support of those orders, which were made in the course of a busy list (see A v A at [104]). His Honour considered that it was important for the NSW Trustee to become involved without delay in order to protect and advance the welfare and interests of IA (A v A at [104]). The orders made by his Honour reserved for further consideration in the Protective List proceedings whether the NSW Trustee "can and should" be appointed tutor for IA in the District Court proceedings and whether a member of IA's family "can and should" be appointed as manager of his protected estate with a view to appointment also as his tutor in the District Court proceedings.

[10]

Application by IA to revoke the orders made by Lindsay J

When both sets of proceedings came back before Lindsay J again on 12 October 2015, IA made an oral application for an order that both the management orders made on 20 July 2015 and the order made on 3 August 2015 for the appointment of NSW Trustee as tutor be revoked. His Honour made directions for the hearing of that application on 16 November 2015 and IA's application was heard on that date.
By that stage, IA had sworn two further affidavits (on 1 and 28 September 2015, respectively) identifying the relevant court on the cover page of those affidavits as the Court of Appeal (though the first affidavit included the case numbers for the equity and common law divisions, which were crossed out and with the court of appeal matter number added in handwriting presumably at a later stage). In the affidavit sworn 1 September 2015, allegations of bribery (money changing hands behind closed doors), negligence, bullying, illegal treatment, cover ups, deception, pressure, torture and the like were made, at some length. IA asserted that it had become a "CRIMANL MATTER NOW AS I AM SEEKING JUSTICE FOR MY LIFE DESTROYED FOR YEARS" [sic] ([26]). He said he was seeking orders for $120 million damages ([49]). Similar allegations were contained in his 28 September 2015 affidavit.
IA's application to set aside the relevant orders was dismissed by Lindsay J on 27 November 2015 (A v A). In the course of his Honour's reasons, his Honour noted that TA had applied for the orders then under challenge because in practical terms absent such orders the District Court proceedings could not be heard on their merits but must remain stayed (see at [7]). His Honour said at [8]: Unless and until the compensation proceedings are finally determined, experience suggests that they will be the subject of repeated, misconceived applications by the applicant, as a litigant in person, which, absent a finding that he is in no need of a tutor, are bound to fail, giving rise to oppression of all participants in the process, and persistent complaints by the applicant that he is a "victim" of a legal system that cannot, or will not, accommodate him.
At [12], his Honour said: One does not need to be a doctor to recognise the applicant's disability. It is, or should be, patent even to an untrained eye: in the course of the proceedings in which he has been engaged to date; in the rambling and, not uncommonly, inconsistent character of his submissions; in the quality of paperwork he routinely submits to the Court; in his apparent inability to accept, or at least not to bite, a helping hand when offered to him; in his restless frustration with his lot; in his delusional confidence in his own ability, in all things; and in his equally delusional tendency to blame everybody but himself for lack of progress in his compensation proceedings.
His Honour went on to say (at [13]) that, if medical evidence were to be necessary to support a finding of fact that IA was incapable of managing his affairs, such evidence could be found in abundance in the evidence of Dr Jungfer (who had been subpoenaed to attend on the hearing of the application before his Honour and who had been cross-examined on the report she had given and which had been tendered in the District Court proceedings). His Honour said (at [14]) that Dr Jungfer's evidence: … reinforces what is, or should be, obvious to any independent, lay observer. The applicant lacks the insight to make a reasonable, informed decision about what is in his best interests. That lack of insight is compounded by both: (a) an inability to process information rationally; and (b) a tendency to be emphatic, to the point of being intransigent, in his expression of choices he makes, even if his choices are patently improvident.
At the hearing, IA had tendered the report dated 13 February 2015 from Dr Smith (see [25] above), as well as a letter dated 27 October 2015 from Dr Smith in which Dr Smith stated that he was unable to appear on 16 November 2015 because of heavy patient commitments but was available the following day at 2pm. His Honour made reference to the fact that Dr Smith was on record as expressing an opinion that IA was able to manage his own affairs but that Dr Smith was not available to give oral evidence on the date deliberately appointed by the Court for that purpose ([121]). Oral evidence was also given at the hearing by IA's brother-in-law to the effect that he believed that IA did not need a tutor and was fully capable of managing his affairs.
His Honour concluded, afresh, that IA lacked capacity, saying (at [123]): I find, as a fact, that the plaintiff is unable to manage his own affairs, including (but not limited to) the conduct of his compensation proceedings. I am satisfied that he is not able, personally, to take care of his own affairs, to protect or to advance his own interests in a competent fashion. He is chronically dysfunctional. He lacks insight into his dysfunctionality.
His Honour also noted that, were the orders then under challenge to be discharged, the likelihood was that IA's compensation proceedings would remain in a state of perpetual limbo, effectively stayed on a permanent basis (since no sensible person of substance, fully informed about risks attaching to acting for IA, could reasonably be expected to take on such a task either as lawyer or as tutor) ([126]) and that, without a protected estate manager, tutor and professional legal assistance, IA was unlikely to obtain any award of compensation since "[i]t is not within his power to understand, or to implement, the steps necessary to reach that goal" ([127]).
His Honour therefore dismissed IA's application for revocation of the earlier orders that had been made.

[12]

Determination of IA's leave application/appeal

The outcome of the concurrent hearing, at which IA was represented by Mr Hooke SC and Mr Masur of Counsel, was that leave to appeal was granted, limited to those grounds contained in an amended draft notice of appeal filed with the Court on 11 May 2016, and the appeal was allowed (IA v TA [2016] NSWCA 179). Orders were made to dispense with compliance with the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) to the extent that r 7.14(1) would prevent IA from commencing proceedings by way of filing the summons for leave to appeal, or filing any notice of appeal if leave is granted, and insofar as r 7.14(1) would prevent him from carrying on any such proceedings (there being power to do so under s 14 of the Civil Procedure Act 2005 (NSW) - see Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [56]‑[59]).
The appeal was allowed on two grounds: first, on the basis that the jurisdiction to make the protected estate management orders had not been invoked (since the amended summons sought only the appointment of a tutor to conduct the District Court proceedings) (ground 1) and, second, on the basis that, to have decided in part not to accept Dr Smith's evidence on the basis that he was unavailable on 16 November 2015 was to deny IA procedural fairness (ground 2).
As to ground 1, the Court (Bathurst CJ, Simpson and Payne JJA) said (at [63]): A judge of the Supreme Court undoubtedly has power, conferred by s 41 of the NSW Trustee and Guardian Act, to make an order of the kind made by the primary judge. But the jurisdiction conferred on the Court by s 41 was not invoked by the amended Summons. Although the primary judge had power under s 41, to make an order of the kind he did, in the absence of an initiating process invoking the jurisdiction, making the order was an erroneous exercise of the power. There is no suggestion that in making the orders the primary judge was acting on his own motion under s 41(2) of the NSW Trustee and Guardian Act.
As to ground 2, the Court found that the protective list judge had erred in not permitting IA to call evidence from his treating psychiatrist (Dr Smith) and to make arrangements to hear that evidence ([7]). The Court noted that Dr Smith's report made clear that he took a view contrary to Dr Jungfer and said that balance required that he be allowed to give oral evidence as Dr Jungfer had done ([76]); that, as IA's long term treating psychiatrist, Dr Smith was a critical witness on the issues that confronted the judge ([77]); and that there was no suggestion that Dr Smith's availability to give evidence on the afternoon of 17 November 2015 could not be accommodated by the Court, nor had any other party expressed any opposition to that course ([79]). The Court considered that if the primary judge was minded not to accept Dr Smith's evidence on the basis that he had not given oral evidence, then the primary judge was obliged in the circumstances of the case to adjourn the hearing to the following day ([80]), or at the very least, to make it abundantly clear to IA that he may, in part, decide the matter on the basis that Dr Smith was not available to give evidence on 16 November 2015 ([83]).
In the course of the Court's judgment, it was noted (at [63]) that a decision about capacity in the context of an estate management order may raise different considerations to a decision about whether to make an order in relation to IA's right of action being prosecuted in the District Court litigation (and hence that upon remitter attention should be given to the width of the relief sought in any further amended pleading to be filed and that attention should be given to whether, pursuant to s 40 of the NSW Trustee and Guardian Act, it is appropriate to seek a more limited order than that made on 20 July 2015).
Further, to the extent that the primary judge (by quoting from his earlier judgment in H v H [2015] NSWSC 837 at [36]) had found that he was free in the present case to make an order under s 41 of the NSW Trustee and Guardian Act (or refuse to make an order under s 86 of that Act) without psychiatric evidence, the Court expressly disagreed with that proposition ([69]). The Court said (at [69]): This is not the occasion to consider whether a judge could ever make an order under s 41 of the NSW Trustee and Guardian Act without psychiatric evidence; the present is not such a case. There was, in fact, psychiatric evidence, from both parties. The error lay in declining to allow the applicant the opportunity to supplement Dr Smith's report by oral evidence.
At [70], the Court said: When considering any available psychiatric evidence, the considered opinions of the long term treating psychiatrist of the person whose capacity for self-management is under consideration should usually assume considerable importance though the Court also said this was not to diminish the importance of lay evidence in the task posed by s 41 of the Act, agreeing with the view expressed about such lay evidence in H v H at [37] that: … there is no substitute for a direct, personal engagement with the person whose capacity for self-management is under consideration, and those closely associated with him or her in daily living.
That said, the Court held that, in the present case, having admitted the psychiatric evidence of Dr Jungfer, the primary judge was bound to consider the competing psychiatric evidence of Dr Smith and that, to prefer Dr Jungfer's conclusion to that of the treating psychiatrist, without hearing from the latter and testing his views against those expressed by Dr Jungfer was an error ([72]).
Importantly, when assessing IA's understanding of what has occurred, it is clear that the Court of Appeal made no finding that IA had legal capacity to conduct his own compensation proceedings. Rather, the Court of Appeal remitted the matter to the Equity Division to determine the application by TA (which at that stage was as to the appointment of a tutor to conduct the respective proceedings).

[14]

Application by IA to vary Court of Appeal judgment

On 24 October 2016, IA filed a motion to vary the Court of Appeal's judgment, seeking a wide range of additional relief. He filed an amended notice of motion seeking even more extensive additional relief on 31 October 2016, including orders for moneys owed from 2007 (something said to have been "ignored" by IA's pro bono barrister) and seeking orders for forensic evidence for assessments for losses and damages "which was told more than what I filed my matter for was stop by pro bono S.C." [sic]. IA's notice of motion further asserted that his pro bono "has damaged my appeals from finality and brought matter back to primary court ...", this seemingly being a complaint against Senior Counsel who had argued the appeal by reference to the fact that the matter had been remitted to the Equity Division (although in most of IA's later email communications he disputes the notion that the Equity Division proceedings still exist).
IA's amended notice of motion came before Payne JA in the Court of Appeal on 31 October 2016. On that occasion, his Honour made orders of an administrative or procedural nature, in relation to the filing of submissions within a particular timeframe and for the matter to be determined on the papers by the Court comprising Payne JA and Sackville AJA and myself. Payne JA expressly noted that the Court had not been asked and was not staying the pending proceedings and was not intending that the timetable being set by his Honour would interfere with or inhibit any application for expedition in proceedings in the Supreme Court or District Court.
Pausing here, what transpired on 31 October 2016 is of no little significance because since then IA has persistently asserted that Payne JA's orders on that occasion amounted to a final determination of his matter (such that the Equity Division proceedings had then been finally disposed of or no longer existed) and IA appears to have led his psychiatrist, Dr Smith, to understand (incorrectly) that Payne JA had on that occasion made a positive finding as to IA's capacity (see below). Since the directions made on 31 October 2016 by Payne JA, IA has consistently labelled the ongoing proceedings in the Equity Division as a fraud.
On 13 December 2016, IA's amended notice of motion filed 31 October 2016 was dismissed as incompetent (IA v TA (No 2) [2016] NSWCA 349).

[16]

Events following remittal to Equity Division

On 22 September 2016, TA's remitted application was listed for hearing before Rein J on 16 and 17 March 2017. On 12 December 2016, TA sought leave to file a motion returnable before the vacation judge (Slattery J) in order to make an application for IA to attend a medical examination in January 2017. Bergin CJ in Eq gave leave for the filing and service of that motion and on 20 December 2016 the matter came before Slattery J. IA appeared on that occasion, without legal representation. Slattery J heard submissions from the parties and made an order for IA's medical examination on 5 January 2017 (by an expert psychiatrist, Dr Bruce Westmore)
The transcript reveals that on that occasion IA informed his Honour that the matter had to go to the High Court because he had won one matter (presumably, the appeal from Lindsay J's orders) but that the "other matter was excluded from the hearing of 20 June by both parties' barristers in a very professional manner on 11 May" (T 3). By this, it appears IA was asserting that what had been excluded from the Court of Appeal was "the main matter that I am fighting" (presumably, his compensation claim) (T 4).
I interpose to note that this is another instance where IA has been critical of his legal representatives and that he appears to have considered there to have been collusion of some kind between Counsel in the conduct of the matter (in his reference to 11 May). I also note that despite numerous references by IA to proceedings in the High Court, there is no evidence of any such proceeding having been commenced.
In the course of submissions before Slattery J, IA made a number of assertions, including that the application before his Honour was based on fraud because the matter had been determined by the Court of Appeal and because "it is not a doctor's case. It is my case that I am seeking justice for ten years …" (T 8.31; T 21.37). IA did not accept that the matter was listed for hearing before a single judge in March (which it had been), saying "That has all been squashed [sic] on 31 October by Justice Payne in Court of Appeal who made orders on 31 October strictly file submissions on 25 November by 4pm. I submitted my submissions to judgment made on 13 December". (As adverted to above, a common theme in IA's communications to numerous persons connected with the proceedings and otherwise is that the proceedings in the Equity Division have been finally disposed of by the decisions made in the Court of Appeal following the concurrent appeal hearing and by the making of orders by Payne JA - hence his repeated assertions that the present proceedings are a fraud; see below).
See, for example, the following exchange between Slattery J and IA (at T 12): HIS HONOUR: … can I just ask you this. You ultimately want your personal injuries claim to be finished and for the other party, the insurance company, to give you the money, don't you? IA: Of course. That was the idea, your Honour, that I appeal my matter because under the procedure of fairness what happened is last year I summon my matter to the Supreme Court and matter was only pending directions hearing, it was dismissed in the Equity court under the instructions of Mr Hanna without being listed and without being heard, so I had the grounds for seeling leave to appeal, which I did file in 7th of August when orders were made on 20th of July. So I file my appeal and I won my appeal. I have seen about five doctors, forensic doctors, I have got my capacity back. I have been in front of five higher level of justice in higher court. None of them agree that I have a problem with my capacity. [my emphasis] HIS HONOUR: Well, they haven't decided the question of your capacity. That is what has happened. IA: Because the matter for capacity was heard only on 20th of June by David Hook SC - HIS HONOUR: [IA], they have not decided the question of capacity . What they have said is that Justice Lindsay's orders should be set aside. Now the question of your capacity has been sent back to this Court before Justice Rein in March for determination. IA: I did file a motion before that and it was determined on 31st of October.
What is abundantly clear (not just from the above but from numerous other pieces of correspondence from IA - see below) is that IA believes (or is at least asserting), incorrectly, that the success of his appeal from the orders made by Lindsay J and/or the making of the directions by Payne JA on 31 October 2016 means that he has been found to have legal capacity. That appears to have influenced his attitude to the hearing of the matter on remittal from the Court of Appeal. For present purposes what is significant is that IA was apparently unable to understand or accept what was being patiently explained to him by Slattery J on 20 December 2016, namely that the matter of his capacity was still for a judge in the Equity Division to determine.
IA told Slattery J that he was not going to see their (the insurer's) doctor "because they have a conflict of interest" and that he "cannot be set up to go and see their doctor because of conflict of interest" (T 18.26). He also told Slattery J that he was not going to attend the hearing in March "because that orders, as far as I am concerned, I have been told on 31st of October by Justice Payne every order made in this matter from 2007 including 29th of July, orders all been quashed" (T 19.10). His position was that "The Court determined and gave my capacity back, Court of Appeal gave my capacity back, so why do I have to go in the drama in the primary court and come backwards when the matter was for finality on 20th of June … it is a contempt of court orders and conflict of interest by parties" (T 21.46-50).
Slattery J impressed upon IA on that occasion that he was ordering IA to attend the medical examination (and drew to IA's attention the warning as to contempt at the bottom of the orders that had been made). IA did not, however, attend the examination (which he maintained was a "set-up"), despite arrangements having been made for his transport to and from the examination and in contravention of the order made by Slattery J.
Following IA's failure to attend the medical examination as ordered, TA's solicitors applied for the matter to be listed for directions before Rein J on 9 February 2017 (who was to be the judge hearing the remitted application). IA failed to attend that directions hearing. His Honour's associate notified IA that the matter would be listed for directions on 21 February 2017. IA again failed to attend that next directions hearing.
The matter then came before Rein J on 16 March 2017 for the hearing of TA's application for the making of protected estate management orders in relation to the conduct of IA's compensation claim. IA appeared before Rein J on that occasion and sought an adjournment of the hearing. It is relevant to note at this point that TA's solicitors had subpoenaed Dr Smith to attend to give evidence at that hearing and, as the email communications in evidence before me (to which I will refer in due course) make clear, IA had been urging Dr Smith not to attend the hearing notwithstanding that Dr Smith had been subpoenaed so to do.
Rein J acceded to IA's adjournment application, on the basis that IA was seeking to retain a solicitor to appear at the hearing, and a regime was put in place whereby the insurer agreed to make funds (of $15,000) available for IA to have the benefit of legal representation (a solicitor of his own choice) at the hearing. Rein J made orders for IA, on or before 24 March 2017, to notify the plaintiff in writing as to the solicitor he had instructed to act on his behalf in the proceedings. That arrangement did not ultimately proceed because IA did not instruct any solicitor to appear on his behalf at hearing. Instead, IA advised by email that he had retained the "AFP" (presumably referring to the Australian Federal Police) and demanded that the costs be paid into the AFP trust account. The insurer declined to do so.

[18]

Application for leave to appeal from interlocutory orders made following remittal

Meanwhile, IA had filed a summons seeking leave to appeal from the interlocutory orders made by Bergin CJ in Eq on 12 December 2016, Slattery J on 20 December 2016, and Rein J on both 21 February 2017 and 16 March 2017. That application was heard on 19 July 2017 by McColl and Meagher JJA and dismissed with costs (IA v TA (No 3) [2017] NSWCA 2017). The Court noted that the orders sought to be appealed from were made in the course of case management of the remitted application and concerned matters of practice and procedure ([10]). The Court said that it was not apparent from the terms of any of the orders sought to be appealed that the order has an ongoing effect which could possibly result in any substantial injustice to IA ([11]) and went on to say (at [12]) that: More significantly IA's draft notice of appeal does not identify any ground which constitutes a sensible basis for contending that there was any error in the making of the relevant orders that requires the intervention of this Court by way of an interlocutory appeal. On the contrary, the draft grounds reveal misconception as to the subject matter of the orders sought to be appealed; raise matters which have nothing to do with the orders made and make complaints of bullying or other misconduct by legal practitioners and judges involved in the making of the orders. They also reveal a misunderstanding on the part of IA as to whether all of his cases have been, or should be, consolidated and heard in this Court. noting that from oral argument it became clear that IA's understanding is that following the second decision of the Court of Appeal (there apparently referring to the decision of 13 December 2016 - see [56] above) or perhaps the earlier hearing before Payne JA on 31 October 2016, all of his matters were in effect consolidated to be dealt with in the Court of Appeal (described by IA as having been "converted to one matter number") ([13]).

[20]

Hearing on 7/8 November 2017

There was no attendance at the hearing before me by IA. However, there is no doubt that he was aware of the hearing dates (as his email correspondence to various persons both within and outside the court and to my chambers made amply clear - see below). In those circumstances (and particularly having regard to IA's repeated assertions that the hearing was a fraud; that the matter had already been disposed of; and that he would not attend the hearing) I was of the view that there was no basis on which I could be satisfied that, if the matter were to be adjourned, IA would attend at a later hearing date. I therefore proceeded to hear the matter in IA's absence (see UCPR 29.7).
At the hearing, TA relied upon the following affidavits: affidavits sworn by his solicitor, Mr Gillis, of 19 January 2015, 7 July 2015, 12 December 2016, 2 March 2017, respectively; and an affidavit from Ms Joanna Brouwer sworn 27 October 2015 (as to the position as to the conduct of IA's litigation at that time, relevantly that IA had refused assistance to the solicitors retained by NSW Trustee and Guardian to progress his claim). TA tendered the reports of Dr Smith of 10 November 2016 (Exhibit D) and Dr Tanveer Ahmed of 24 February 2016 (Exhibit E); as well as bundles of email communications: from IA to the Court (Exhibit A), from IA to the plaintiff's solicitors and Counsel (Exhibit B), from IA to Dr Smith in relation to the latter's attendance at Court hearings (Exhibit G); from IA to my associate on 6 and 7 November 2017 (Exhibit H), and from IA to my associate on the afternoon of 7 November 2017 in which IA's most recent quantification of his damages claim was provided (Exhibit J). Copies of the recent communications to my associate were (as a matter of procedural fairness) provided to TA's Counsel in the course of the hearing (since it was not clear that all of that had been copied to him).
Many of the email communications were addressed to multiple persons (including from time to time the Judicial Commission, the Office of the Legal Services Commissioner and the Attorney-General; as well as Court registrars and various judges and their staff).
TA also tendered, for the fact of what was there deposed to but not the truth of their contents, the affidavits filed by IA in the proceedings (being affidavits of 24 June 2015, 1 September 2015, and 28 September 2015) (Exhibit C).
Accordingly, despite IA's non-attendance at the hearing, all the evidence upon which he might be expected to have wished to rely was available to the Court. At the conclusion of the hearing, Counsel for TA offered to forward a copy of his closing written submissions to IA and I directed that IA file any written submissions in response within 7 days. Since judgment was reserved, no less than 22 emails have been sent to my associate; the tenor of which is the same as those in evidence at the hearing. I have treated them as submissions. Nothing in them causes me to doubt the conclusions expressed in these reasons. I note that IA has made it very clear that he "will never attend any primary courts".

[21]

Medical evidence

I have summarised above the written reports from Dr Jungfer of November 2014 and the letters written in 2015 by Dr Smith and IA's general practitioner (Dr Ablante), as well as the "To Whom It May Concern" letter dated 10 November 2016 from Dr Smith. The other medical report in evidence dating back to the time at which the issue of capacity was first before this Court was the medico-legal report dated 24 February 2016 prepared by a consultant psychiatrist, Dr Tanveer Ahmed, who had examined IA at his request in February 2016 (Exhibit E). A copy of that report was served on TA's solicitors as part of IA's submissions in the Court of Appeal proceedings (as Annexure K to the submissions), which are annexed to Mr Gillis' affidavit in the present proceedings.
Dealing with Dr Ahmed's report first, he opined that IA satisfied the criteria for an adjustment disorder with mixed anxiety and depressed mood and that the condition was chronic. Dr Ahmed stated that while IA had difficulty engaging with treatment his condition was unlikely to show further improvement. He said the prognosis was relatively poor and that it was unlikely that IA could either engage with treatment or show significant improvement in his physical and psychological symptoms. However, he was of the view that there appeared to be only mild deficits in short term memory and his other cognitive functions appeared to be intact. Dr Ahmed reported that IA was able to give a coherent history and had enough understanding of his circumstances that he could be considered overall as having capacity to make decisions regarding his finances and health. Dr Ahmed's report (unlike Dr Smith's earlier letters) was prepared with an acknowledgement under the expert witness code of conduct.
Each of Dr Smith and Dr Jungfer gave oral evidence at the hearing (Dr Smith having been subpoenaed to do so). Also in evidence was the written report from Dr Roberts (who had not examined IA) and he too gave oral evidence. I set out below a summary of the evidence given by each of these psychiatrists.

[22]

Dr Smith

As already noted, Dr Smith was IA's treating psychiatrist and it was the treatment by the protective list judge of his initial report (the February 2015 letter as corrected by the March 2015 letter) that led to the upholding of the procedural fairness ground in IA's appeal. Dr Smith's 10 November 2016 report confirmed his earlier opinion as to IA having capacity.
Dr Smith's evidence before me was that he had not seen IA since he examined him on 10 November 2016, though he had received email communications from IA since then (including on the very morning that Dr Smith gave evidence before me).
Dr Smith was questioned about emails that he had received from IA in respect of Dr Smith's attendance at Court for the purpose of this case. Dr Smith confirmed that he had received a number of emails in which IA instructed or requested Dr Smith not to attend the hearing (both before the hearing listed before Rein J to commence on 16 March 2017, which was adjourned at IA's request and before the hearing before me commencing on 7 November 2017). Dr Smith identified those emails and, when they were produced, copies of the emails were admitted as Exhibit G.
I summarise the gist of those communications in due course. For present purposes I note by way of example that in the weeks before the scheduled 16/17 March 2017 hearing IA sent an email to Dr Smith on 31 January 2017 saying: "Please do not attend the hearing listed on the fraud hearing on 16 and 17 March"; and on 2 February 2017, IA emailed Dr Smith to say "Please, Doctor, do not attend Court on the 9th as the matter was dealt with on 31 October. I won my full rights back from the Court of Appeal. Thanks".
I have extracted earlier the substance of Dr Smith's letter of 10 November 2016. He was examined in the witness box as to the basis of the statement in that letter as to his understanding that Payne JA had made a finding as to IA's capacity. There was the following exchange (at T 25): Q. What I want you to assume Doctor is that in fact on 31 October 2016 Justice Payne made orders for the filing and service of further submissions, do you understand, on a Notice of Motion? A. Yes. Q. With it being ordered that Mr "IA"'s application would be determined essentially on the papers by the Court. Do you understand? A. Yes. Q. And that that was the extent of the orders or determination of Justice Payne on 31 October, so he did nothing other than make orders for the exchange of written submissions noting that the application, which was Mr "IA"'s application, be determined in Chambers. Do I understand the position that that was not what Mr "IA" was representing to you? A. The ‑ I have drawn the conclusion that Mr A ‑ Mr "IA"'s perception of what has been going on is contrary to the facts that are before the Court. In fact, it has been very difficult for me to ascertain exactly what is going on from Mr "IA" because I am not receiving a coherent account and even to date I am still at a loss to know exactly what is going on.
Asked to assume a series of facts (which reflected what had actually occurred on 31 October 2016 and then on 16 March 2017) there was then the following evidence (at T 27): Q. So I want you to assume that despite an offer being made that the plaintiff essentially would fund a solicitor to act on his behalf to assist him in the proceedings, that that was the e‑mail response, and I want you to assume that Mr "IA" at no stage thereafter provided the details of any solicitor. Do you understand? A. Yes. Q. Needless to say he still represents himself. What, if anything, does that tell you about Mr "IA" and his capacity to effectively conduct or maintain his own proceedings or, for that matter, instruct solicitor or counsel? A. I have drawn the conclusion that Mr A has no capacity to certainly represent himself. He is totally unrealistic. He exhibits a marked degree of suspicion. Some have called it "paranoid psychosis". I am not sure I would agree with the term "psychosis" but he has a marked degree of what I deem unwarranted suspicion. He views the Court officers as corrupt, fraudulent and unfair in their application of justice, and this type of letter here is repeated throughout his e‑mails, and it has been repeated directly to me in verbal interactions up until the time I last saw him. It is consistent with the views of others who have examined him and it is totally unrealistic or he conveys a totally unrealistic perception of how to settle an issue. His claim, in my view, is totally unrealistic. I have seen ‑ it is not for me to determine how much he should be awarded but I have been around settlement matters before and the amounts involved are astronomical, totally unrealistic and I would expect that unless he achieves that amount of money he will continue to go on and ensure that he obtains what he deems a fair settlement. He does not take advice. I have impressed upon him the need to settle this matter realistically over the years. At times he has agreed but he has gone off on his own way. He is extremely rigid in his thinking, and this type of letter is not unusual if you look at the whole correspondence, including the flurry of e‑mails that I have got and I am sure you have got, so does he have broadly the understanding of a Court process? Does he follow the principles of adhering to Court decorum and to be told not to communicate, and he just ignores them. I have told him myself that I am under subpoena and I must attend Court and despite that he has forwarded multiple messages and e‑mails not to attend.
Pausing there, the comment by Dr Smith as to the amounts involved being "astronomical" I have understood to be a reference to the sum contained in a calculation of damages claim that was emailed by IA to my associate in the afternoon of 7 November 2017 (but seems also to have been sent to Dr Smith in an earlier email communication) (see Exhibit J). That calculation was for a "grand total" of $176,645,438.73 (in a document purportedly prepared by a firm known as TaxAssist Accountant, though the actual calculation was not on that firm's letterhead). (Dr Jungfer, who was shown the calculation for the first time in the witness box, considered that it indicated a degree of grandiosity on IA's part - see [103] below).
Asked to assume facts as to IA's non-compliance with the court orders that he be medically examined (that again reflect what occurred), Dr Smith gave the following evidence (T 28): Q. Assuming those further facts, again, does that assist you in terms of determining whether Mr "IA" has the capacity to effectively conduct either his own claim or piece of litigation in the District Court or for that matter instruct solicitor or counsel? A. No, he has no capacity to reliably follow rules. He marches to his own particular drum. He pursues his own interest and, basically, I think this will go on and on ad infinitum. I don't think he has the capacity to instruct counsel. As I said, he has not got the capacity to lead the case himself. He ignores the rules of the Court. He ignores the decisions made and I don't see any change occurring.
Dr Smith was given the opportunity to review emails, forming part of volume 2 of the Court Book (see Exhibit B), sent both to the Court and to the plaintiff's solicitor (and others). Asked whether that assisted him further in terms of his opinion as to IA's capacity, Dr Smith gave the following evidence (T 29): A. I reiterate, I don't think he has capacity. These e‑mails are consistent in stating the whole system is fraudulent. We are all fraudulent. Maybe I am not but everyone else is fraudulent, I am the only one on his side but I think after this hearing I will probably join the club. Everyone is fraudulent. The whole system is corrupt. That is his belief. You are not doing justice to him. You are denying him justice and he is convinced of all that. Q. Your view is the same in terms of capacity? A. Correct. He has no capacity.
Dr Smith was then asked his opinion as to Dr Jungfer's opinions expressed in her report of 18 November 2014. As to the four elements that Dr Jungfer considered an appropriate test for capacity in the context of this case, Dr Smith accepted that, in general terms, Dr Jungfer had covered fairly the approach to be adopted in assessing capacity. In Dr Smith's view, the key one was IA's lack of capacity to understand or weigh the choices available to him (T 30). A. Yes, yes. I think she has covered it fairly. The key, of course, is ‑ the key one in my view is he lacks the capacity, he fails to understand, this is the summary‑‑ Q. Sorry, just to assist us Dr Smith, which part of the report are you referring to of Dr Jungfer? A. Yes. Well, the fourth arm on page 8, the third last paragraph, he has no capacity to express a choice. I mean, he does express a choice but he does not weigh a choice. There is no capacity to weigh any other opinion other than his own. "This is what I am worth. Unless you settle that we cannot settle this" so he can express a choice but he really cannot weigh a choice, I qualify that. He cannot adhere to a decision of the Court, and that has been tested and shown ad nauseam. She says his decision‑making process is impaired. In that sense he is rigid. I would say he is rigid. He is fixated. He has an over‑valued belief that he is correct and he is going to stick to that at all costs. She says he fails to appreciate his situation. Well, that is true. I don't think he cares about the situation. He does not care about the Court. He does not follow the rules laid down. He does not follow any rules other than his own rules that "you will listen to my opinion and if not I will abrogate the rules" despite, as you say, the potential contempt of the Court with sanctions applied. He does not care. Her summary overall "he must understand", I think he understands but he does not care about anyone else's perception or opinion. He understands but he is just focussed on one ‑ one goal but, broadly speaking, I don't have a disagreement with her assessment of capacity
Asked his opinion as to Dr Roberts' report (to which I refer below), he said (T 31): A. I have read Dr Samson Roberts' report very quickly and as I understood his report he is saying he is paranoid, which I agree with, his reasoning is of paranoid psychosis ‑ "psychosis" means you are out of touch with reality and that would be an interesting debatable point. I think Mr A is very much in touch with certain aspects of reality and the reality is where he is going with this case even though to most people that would be unrealistic, but it is not psychotic in the classic sense of say Dr Roberts' reasoning the issue of schizophrenia. I don't think he is schizophrenic. He does not satisfy diagnostic criteria of schizophrenia. No one else has ever raised the issue of schizophrenia. People have essentially focussed on ‑ I have labelled him a major depressive disorder which is a more serious mood disorder than an adjustment disorder, and Dr Samson Roberts agrees that he does not have an adjustment disorder. Dr Jungfer thinks he has an adjustment disorder. I think he is more impaired than an adjustment disorder. I think he has a major depressive disorder. I think he is significantly pain‑focussed to the extent that he has a pain disorder to use old jargon, what is called a Schematic Symptom Disorder now. He is taking a lot of medication and I do agree that could impair him cognitively to a degree. There is evidence in the literature that narcotic medication, that is the Oxycodone, the OxyNorm, the pain killers he is taking can indeed impair cognitive capacity, plus all the other medications he is taking. So she has used ‑ he has a cognitive impairment of a mild kind. I think he has been checked out with neuropsychological testing off memory at one stage and I don't think there is any gross impairment. He has never had a head injury of a significant kind. There is no traumatic brain injury. Mr A by the way ‑ Mr A believes he has had a stroke and at one stage I believed he had a stroke because he had all the characteristics of a stroke. He came in. He was walking with an antalgic gait. He had a cane. He was tremulous. He had all the features of a stroke. It was only when I subsequently explored the neurological evidence that I realised it wasn't a stroke at all. He had an AV, an arterio‑venous malformation of the superficial veins of his scalp on his temporal area and that required neurosurgical intervention but it wasn't a stroke in the classic sense of a bleed into the brain but he had convinced me that he had had a stroke and it was as a result of a motor vehicle accident and for a while I actually believed him because he was quite convincing so is that fabrication, is that feigning, is that embellishment? In all probability it is and even now he insists he has had a stroke despite evidence to the contrary. Q. Yes? A. But overall there is much in Dr Samson Roberts' report that I do support but I don't think he is schizophrenic.

[23]

Dr Roberts

Dr Roberts, who was in Court while Dr Smith gave his evidence, had not examined IA but had expressed his opinion (as an expert and having acknowledged the expert witness code of conduct) based on the materials with which he had been provided (his report is Exhibit F).
Dr Roberts is a forensic psychiatrist. He explained the distinction between a forensic psychiatrist and a psychiatrist as being that the former has undertaken specific additional studies in the formal assessment of and treatment of people with forensic issues who have come across the law who need assessment for Court purposes or for other legal purposes. He has worked specifically in forensic psychiatry since 2004 and achieved his fellowship in 2005. He said that a substantial proportion of his work has always been in the medico‑legal assessment, forensic assessment and treatment of people within the prison system as such; including assessing capacity to instruct and fitness to plead, in criminal cases and in assessing capacity in the civil context. He said that while it was not his preferred approach to assess this in the absence of a clinical or face to face review, and this was not ideal, it could be and was done on occasions and he had been asked to do it on a number of occasions (T 34-35).
Dr Roberts was provided with material including a history of the proceedings, the reports of Dr Smith, Dr Jungfer and Dr Ahmed, and also with copies of email communications from IA.
In his report, Dr Roberts noted that those who had assessed IA had diagnosed either Adjustment Disorder or Major Depressive Disorder. He noted that the opinions regarding capacity varied. Dr Roberts' opinion, based on the material he had reviewed was as follows (pp 4-5): Based on the longitudinal history documented in the material reviewed, IA has suffered unrelenting psychiatric symptoms of a disabling nature for at least the past ten years. This reflects an unremitting psychiatric illness. An Adjustment Disorder is not expected to persist over such a protracted period of time and its natural course is such that it would typically remit within six months of removal of the stressor that precipitated the condition. The natural course of a Major Depressive Disorder is such that one would typically expect a relapsing and remitting longitudinal course. While neither of these trajectories occur invariably, they represent the typical pattern that would be expected. By contrast, chronic psychotic illness would be expected to persist without remission in the absence of treatment. The nature of the disorder of thought form as demonstrated in the material written by [IA] is characteristic of Schizophrenia. Thought disorder of this nature does not typically arise as a manifestation of depressive illness. Thought disorder of this nature could not be explained by the presence of an Adjustment Disorder. Indeed, consistent manifestation of thought disorder of this nature does not arise in the presence of any other psychiatric diagnosis other than Schizophrenia. The presence of thought disorder, a complex delusional system characterized by a conspiracy between the insurer, Officers of the Court and the various solicitors that [IA] has retained, and the presence of bizarre beliefs regarding his physical health indicate that on balance of psychiatric probabilities he is suffering Schizophrenia. In considering whether [IA] has legal capacity one must consider those aspects of cognitive functioning, such as comprehension, logic and reasoning as are specifically pertinent to the relevant legal circumstances. While such matters as his ability to manage finances or make medical decisions might inform an opinion in this regard, they represent discreet domains of functioning and are not readily transferable to the question of legal capacity as it pertains to the court proceedings. In [IA]'s case, his delusional belief system directly influences his attitude towards any legal circumstances in which he finds himself. His understanding of his health issues would appear to be influenced by delusion and, having regard for the manner in which his understanding of his health status is documented, it would not appear that [IA] is likely to be amendable to expert medical opinion to the contrary. His belief regarding the potential quantum of his insurance claim is beyond that which would seem to reasonably be expected and, considering that his attitude towards his previous legal representatives has been characterised by paranoia, it is not expected that he would be able to instruct his solicitors in the absence of the intrusion of his psychiatric illness. He is unable, by virtue of his psychotic illness, to accept the judgments that may be made in relation to his claim and by virtue of this illness he is expected to maintain the belief that all those involved are potentially taking part in a conspiracy against him. Based on the available information, it is evident that [IA] lacks the capacity to participate in legal proceedings. He lacks capacity to instruct Counsel.
Dr Roberts' answers to the specific questions posed of him were as follows (at pp 5-7): 1. Whether the [IA] is under a legal incapacity and requires a tutor to manage his legal and/or financial affairs Based on the available information, notwithstanding the fact that I have not had the opportunity to interview [IA], it is evident that he does not have legal capacity in relation to the personal injury claim. On balance of psychiatric probabilities, he would be expected to mismanage his finances, in particular if it remains his goal to pursue compensation. Having regard for his belief system, it is more likely than not that if he were to receive a quantum of compensation less than that which he considered adequate, he would utilize available funds to pursue redress. On this basis, [IA] is under legal incapacity and it is expected that the Court would consider it appropriate to appoint a tutor and to ensure financial management of [IA]'s funds. 2. [IA]'s capacity to give instructions for the preparation of his case [IA]'s understanding of the legal circumstances as reported in the documents is so compromised by the intrusion of delusional material, that it could not be expected that he could give instruction for the preparation of his case. 3. [IA]'s ability to understand the process advice from legal proceedings Given [IA]'s distrust of Officers of the Court, his distrust of his own legal representatives and his suspicion that the insurer is influencing such people, it is not expected that he would trust any aspect of the legal proceedings. Given the extent of the thought disorder demonstrated in the documents prepared by him, it is doubtful that he would be able to adequately assimilate and understand information presented in Court and recall it sufficiently to consider that he was adequately participating in the proceedings. 4. [IA]'s ability to read and process written material [IA]'s ability to read and process material is expected to be undermined by the intrusion of his delusional belief system and his inability to accept anything but his understanding of the circumstances. 5. [IA]'s ability to instruct on settlement or compromise one or more of his cases, including his capacity to decide whether or not a statement is in his best interests Having regard for the nature and severity of [IA]'s psychiatric compromise and the effect that this is expected to have on his cognitive functioning, it is not expected that he would be able to instruct on settlement, compromise or make decisions in his best interest. 6. [IA]'s ability to enter into a Costs agreement with a legal practitioner including his capacity to understand its terms and conditions Having regard for the extent of his paranoia, to enter into a financial agreement with [IA] would pose a risk in that he is likely to perceive any legal practitioner to be acting contrary to his best interests, as has been the case in the past. In such a context there is potential that he will perceive this to represent legitimate grounds upon which to default on his financial obligations. His capacity to understand terms and conditions of cost agreements are likely to be undermined by his propensity to misperceive material due to the presence of psychotic illness.
Dr Roberts was shown a copy in the witness box of the bundle of emails that had been received by my associate on 6/7 November 2017 from IA (Exhibit H) and was asked the following (T 36-37): Q. What if any further opinion do you have in light of those further emails, and also, knowing that Mr IA, although being aware of this hearing, has not attended? A. Just having briefly looked at the first few pages, the contents of these emails, the form of language used in these emails confirms the impression that I derived from the other emails that I reviewed. They have overt thought disorder, and by that, I mean they don't read as a normal pattern of thought would flow. Whilst we can deduce the meaning of the sentence by reading it, not that it's actually a properly ‑ any of these are properly formed sentences, they barely qualify as intelligible, and they suggest a person who cannot string thoughts together in a logical and coherent manner. Q. Having heard the opinion of Dr Selwyn Smith, having read that material, do you wish to say anything further in terms of your opinion as to whether he has the capacity to either conduct those proceedings on his own behalf, or for that matter, instruct the solicitor or counsel by himself in respect to that claim? A. My opinion hasn't changed. I don't believe he is fit to instruct, I certainly don't believe that he is fit to run proceedings independently. Q. Is there anything in terms of which you've heard from Dr Selwyn Smith to alter your opinion, or do you maintain your opinion having heard Dr Selwyn Smith's? A. I maintain my opinion.
Asked about the different diagnoses as to the psychiatric condition from which IA suffers (including the diagnosis of Dr Jungfer), Dr Roberts gave the following evidence (T 37-38): Q. Is it fair to say the various psychiatrists who have expressed opinions have perhaps come to different diagnoses in terms of psychiatric diagnoses as to the condition from which Mr IA suffers. Is that right? A. They have, yes. Q. Does the formulation of a diagnosis in your opinion impact upon your own opinion about capacity in terms of what the underlying diagnosis of his condition is? A. Cross‑sectionally no, however, consideration of a diagnosis is important in looking at prognosis. By that, I mean if someone has a condition which might reasonably be expected to remit at some point in the future, the person might become fit to instruct, might become competent. The ‑ the other consideration is that certain psychiatric diagnoses are known to have attached to them cognitive decline, and certainly, the psychosis such as schizophrenia are associated with impairment of problem solving ability, and such patients will often struggle with nuance, will struggle with weighing issues, and in that sense, consideration of diagnosis is important, but at the end of the day, there is overlap between certain diagnostic categories, and one must assess the symptoms and how the symptoms manifest, and impact on cognition, and understanding and problem solving ability to determine competence in such ‑ such a matter. Q. In Mr IA's case, what's the context or the relevance of that in terms of assessing capacity? A. So in considering diagnosis, and I am at a relative disadvantage because I never had an opportunity to meet him face to face, I concluded that he was suffering from a delusional illness, suffering of paranoia, and the basis of that is that he describes or he has described to other assessors that everyone is in cahoots and there is a conspiracy that involves numerous people, some of whom have obviously come into contact with each other but others of whom have probably never met, for example, the many solicitors that he's retained, one can only assume that some of them don't even know each other, and yet they are conspiring against him. They are conspiring with the insurance company, they are conspiring with the insurer's solicitors, the Courts, the various judges who have been involved. To suggest that he's not delusional would require one to assume that there is some validity behind his assertions which I have to suggest is ‑ would be ridiculous. The other ‑ and DSM‑V, DSM‑IV in the other previous iterations they say are the diagnosis of schizophrenia, but the presence of a complex delusional system in and of itself is sufficient upon which to make the diagnosis, but the other issue which speaks to diagnosis is the nature of the thought disorder that's demonstrated in what Mr IA writes. Doctor Smith suggested that he knows what's going on. Dr Smith suggested that he is forthright and rigid in his approach, and everyone else in his mind ‑ Mr IA's, not Dr Smith's mind ‑ has it in for him and is wrong. That would suggest that Mr IA knows full well what he's doing and how he is going about it, and there's almost a psychopathic attitude behind his approach. That doesn't explain the disorder of thought form, and disorder of thought form is so difficult to feign as to verge on impossible, and thought disorder of this nature does not arise in the context of other psychiatric conditions. It can arise in other conditions that have with them an element of psychosis or such as a manic psychosis, but then we'd expect fluctuation in his mental state which doesn't appear to have happened over time, and he's subject many people to his delusional incorporation over many years, so that's the basis on which I form my diagnostic opinion, and that also informs the future in that he is untreated, he is likely to maintain his delusional beliefs, he is likely to remain thought disordered and unable to express himself in a logical and coherent manner, and he's going to remain unable to engage with people without his belief system intruding into his dialogue with them, his planning with them and his instructions to them.

[24]

Dr Jungfer

Dr Jungfer gave evidence on 8 November 2017. Dr Jungfer confirmed that she was initially retained in 2009 by IA's then solicitors to see IA as a medico-legal specialist and to provide a medico-legal report in respect to his claim for compensation; and that her next contact with IA was in 2014 as part of a court ordered independent assessment of IA's capacity.
Subsequent to the hearing in the District Court at which Dr Jungfer's 18 November 2014 report was produced and Dr Jungfer gave evidence, Dr Jungfer was requested to re-examine IA and provide an updated report as to capacity. Dr Jungfer was not prepared to re-examine IA. In her letter dated 9 November 2016 addressed to TA's solicitors, Dr Jungfer wrote: …I have not examined [IA] since 2014 and therefore am only able to give evidence regarding his capacity at this time. Impairment of capacity to instruct on the basis of mental illness may change over time. In the context of the repeated harassment and threatening emails etc I have received from [IA] since that assessment I am not prepared to re-examine him in these rooms.
In the witness box, Dr Jungfer explained her position as follows (T 42-43): Q. Can you tell her Honour, after the consultation and the report in 2014, what were the circumstances which led you to declining to further see Mr IA in 2016? A. After I saw Mr IA in November of 2014, he obviously received a copy of my report, and then set about sending me emails, phoning the rooms, turning up at the rooms insisting that I see him. And I need to explain that the rooms are essentially a small office, I have a female secretary, and it's a relatively isolated space. So we have security, in that no person is allowed in the rooms without previously being identified. So he was not allowed in, but he was very agitated when he attended. He made a complaint to the medical board that I had not provided a report in his favour which I ‑ well, the Health Complaints Commission which forwarded it to the medical board which I needed to deal with, and that the board and health complaints found that I had not done anything wrong, but needless had to deal with that Q. Can you just explain what exactly was the nature the complaint? A. So the complaint was in a ‑ in a ‑ I would argue a thought disordered way, so it wasn't very clear. But one of the arguments that he had that he made the complaint to the Health Complaints Commission was that I had not provided a report that was in his favour and that that was my job. And as I had explained to Health Complaints Commission and then the medical board, I am very clear when I first see a patient for a report, a client for a report, I state very clearly who I am seeing the person for, and the reasons as to why I am seeing them, but also indicate that, you know, my duty is the courts. And I signed the declaration in my reports, and I take that seriously in terms of what I put forward to do. I had been very clear when I had seen Mr Ali in 2014 who I was seeing him for, that the courts had ordered this, and that therefore both his solicitor and at that stage the defendant solicitors would receive a copy of that report. And so I had always made it very clear what was happening. However, he did not either hear that or accept it or was able to process it. So the complaint was made to the board. There were a whole number of other complaints that he made about how I had affected his life which I had to deal with in the ‑ in the report. The primary reason, though, that I put forward that I wasn't prepared to see him again was that, as you all know because you all receive emails from Mr AI regularly or IA regularly, it was quite distressing. You know, Sunday night you would have this barrage of complaints and threats and accusations, and I actually felt that I wouldn't be able to write a report that was not biased that, you know, the underwhelming ‑ sorry, the overwhelming feeling about seeing Mr IA was that I knew if I wrote a report that said he didn't have capacity on the second occasion that he would just simply escalate the threats, and I felt I couldn't do my duty to the Court, and so I declined.
Dr Jungfer had been subpoenaed to give evidence at the hearing scheduled for March 2017 before Rein J, in the context of which she was provided by TA's solicitors with a folder of material containing a collection of emails, both to the Court and to TA's solicitors (volume two of the court book), including a schedule of damages. Dr Jungfer had reviewed those documents as well as the additional material in Exhibit H and was asked what further opinion she could express in terms of IA's capacity in respect to that material. Her answer was as follows (T 45): A. As had been in the report I completed in 2014, when I examined for capacity of a person, the first thing is that I determine exactly what I am being asked to assess in terms of their capacity. In the case of [IA], it was his capacity to provide instruction and to run his legal matter. And there were four questions that I looked at in terms of what, how Mr IA functioned. Sorry, I find it very difficult to say it in letters all the time. Apologies. And those four areas were whether Mr IA could obtain information. So whether he had the vision, the hearing capacity, the thinking ability to take in information, whether or not he could then reason that information, that is, look at the for and against arguments for any decision he might make, be able to take in new information, change his thinking pattern. Then whether or not he could make a decision, and what influence that decision‑making. And then finally, whether he could keep to that decision. These emails, the volume that I have reviewed and the most recent emails, reflect that Mr IA has a disorder of thought, a form of thought, that is, that his ability to logically and coherently communicate the manner in which he puts together his ideas, follows on with the ideas, and expresses them, is impaired. Formal thought disorder is a feature of a condition that we call psychosis. The other component of the emails, and which was also evident when I saw him in 2014, is that he clearly manifests paranoid delusional thinking. He interprets every action of every individual to be part of a conspiracy to harm him, to prevent him with what he perceives as his rights. There is an element of grandiosity. If you look at the statement of damages that he has put forward and he had communicated to me, indicates a degree of grandiosity, possible grandiose delusions, and almost certainly when I saw him in 2014, he had multiple delusional ideas regarding what people were doing their paranoid, they're outing to harm him. And so I formed the opinion that his delusional thinking impaired his ability to be able to reason and to rationally consider the issues. And the ongoing emails reflect these ongoing psychotic phenomena, and the ongoing impairment of his capacity to be able to take in information and to consider that information. So he has a fixed firm belief that is not in keeping with reality that influences all of his decision‑making, and therefore he is disadvantaged on the basis of his psychiatric illness. And he is impaired, he lacks capacity to make decisions. And these emails continue to reflect that.
It was Dr Jungfer's opinion that IA's condition had deteriorated from 2009, when she first saw him, to 2014 and considered by reference to the escalation of his communications and the nature of them that he had deteriorated even further since then.
Asked about capacity in the specific context of the ongoing litigation, Dr Jungfer's evidence was as follows (T 46-47): Q. You have talked about his capacity generally. Can you then assist us by putting that in context, that is, in the conduct of the litigation that is presently ongoing in the District Court, both his capacity either to appear for himself ‑ as you may appreciate, he no longer has solicitors ‑ or alternatively, his capacity to instruct legal counsel and or solicitor? A. Based on the information that has been provided, and taking into account that I last examined him in 2014, I would be very seriously concerned that he would not be able to represent himself, purely because his ‑ the quality of his communications indicate that he struggles to be able to formulate an idea and then follow through that idea in a logical fashion. He is also unable to shift an idea, and representing himself, he would need to not only grasp a great deal of information, but would have to be able to logically present his arguments and present evidence to support that. He is quite severely delusional with regards to the courts and, you know, would doubt that he would even appear for himself in that matter because of his delusional beliefs regarding the courts. And I understand he was - hasn't ‑ he has failed to attend this hearing which is a further reflection of that delusional thinking. So I would argue that he would lack the capacity to represent himself in the lower court. The other‑‑ Q. His capacity to, in his own right, take advice and instruct a solicitor or counsel? A. For the ‑ for the same ‑ for the same reasons that, but most particularly because he has a delusional idea about legal representation and the legal profession generally. He, you know, anyone within the legal profession or having any association with the courts, he now has a paranoid delusion that everyone is conspiring against him. There was in his emails in early this year, in February this year, he spoke about, you know, about the notion of fraud, that people were covering things up. And therefore, I would argue that he doesn't have capacity because his delusional ideas will influence all interactions with the legal profession. Q. Can I provide you just a further couple of assumptions which you may not be aware of. Firstly, that he has been ordered on two occasions to attend upon a medical examination, that is, court ordered medical examinations? A. Yes. Q. Which he has failed to attend. And I also want you to assume that Dr Selwyn Smith gave evidence yesterday that, despite the doctor being subpoenaed to give evidence both in March and for this hearing, that Mr IA was essentially instructing him not to attend in accordance with that subpoena. What, if anything, does that tell you about his capacity? A. If a person has a delusional idea, a paranoid delusional idea, then that paranoid delusional idea will influence how they see everything in their environment. And the examples that you gave, for example, the Court, which is part of his delusional thinking, has ordered him to see someone. Therefore, his psychotic thinking will be that that doctor's opinion will be influenced by the courts and will be negative because he views the Court as being out to get him. And the same thing that Dr Smith was his treating psychiatrist, and I would imagine that he would be anxious that if Dr Smith attended the Court, that the Court would influence his treating psychiatrist, because everything is interpreted that the courts and those that represent the courts are out to get him. … Q. Are you of the view, based on what you saw of Mr IA back in 2009 and 2014, and what you have seen in the materials since then, are you able to express a view as to the difference in the conclusions between Dr Roberts and Dr Smith in that regard? A. I would agree with doctor ‑ I would agree with Dr Roberts that Mr IA has a psychosis, and a psychosis that is that he has evidence of psychotic symptoms, in this case frank paranoid delusional ideas. Whether it is part of a ‑ people with a major depressive illness can have psychotic symptoms, people with schizophrenia can have psychotic symptoms. Whether or not it falls within the category of schizophrenia or a major depressive illness with psychosis is often a longitudinal diagnosis. When I first saw him in 2009, there was no evidence of psychotic symptoms. He was, however, very much under the influence of narcotics which can significantly alter a person's presentation. In 2014 he was frankly psychotic. He had psychosis. You either have hallucinations, delusions, or disorder of form of thought. When I saw Mr IA in 2014, he was clearly delusional. He had ‑ and a delusion is a false fixed belief that is held contrary to the society or community that the person is within, and is not purely explicable on the grounds of lack of education or religious beliefs. And he has a false fixed belief with respect to the legal profession and with regards to the courts. And throughout his emails repeatedly he makes reference to fraud, to cover up, when there is no evidence of that is the case, and I would argue that is a delusional idea. He also, in my opinion, has a clear disorder of form of thought. His emails are a flight of idea, they are tangential, they ‑ but they also have a perseverative component related to the delusional thinking. But if you gave that to a layperson to read, and that's the ‑ like the pub test of thought disorder. Q. Yes? A. They would say, what is he saying. They wouldn't understand it. And that is, you know, a very clear indication. So I agree that he has a psychosis. Whether it's a major depressive illness with psychotic symptoms or schizophrenia, it still is a major mental health disorder.

[26]

Exhibit A

Exhibit A, for example, contains a series of communications between IA and Rein J's chambers or other members of the Court after the matter was listed before his Honour for directions on 9 February 2017 on TA's application following IA's failure to comply with the order made by Slattery J in December 2016 for IA to be medically examined by Dr Westmore on the issue of his capacity. I was taken to various of those emails in closing submissions and I refer to the contents of some of the emails below.
By email of 1 February 2007 to Rein J's associate (but addressed in the text of the email to the registrar, myself and Sackville AJA), IA states that this is "fraud listed matter" and (referring to himself in the third person) that [IA] is not going to attend; that the matter number does not exist and that Mr Gillis "HAS OT [sic] be STRUCK OFF MY MATTER". A further email on that date makes similar allegations as to conflict of interest and the listing of a matter that does not exist, requesting that Rein J's associate check with Justice Payne "as he knows their games played from 2007".
The following day (2 February 2017) IA sends an email addressed to various court registrars and others (including Dr Smith's office), advising that the equity matter "does not exist"; that the "PRIMARY COURT CANNOT MAKE ORDERS ON MATTER NUMBERS DEALT AS APPEAL WHICH WILL BE UNDER REVIEW WHEN I GET ALL MY FORENSIC EVIDENCE TOGETHER"; and, in relation to the 9 February directions hearing, advising that "[IA] has Advice his Doctor as well in regards to the issues arise from 31th of October, and My Doctor should not comply on the fraud subpoenas send by fraud conducted parties on fraud listed matter Number does not exist".
On 7 February 2017, IA sent written submissions to Rein J, referring to the proceedings before Payne JA on 31 October 2016 and asserting that Payne JA "gave me my full rights back" on that day. Reference is made to "procedural fairness act". At the very least, this shows a misunderstanding of what occurred before Payne JA and of the legal process
Then, in response to notification by Rein J's associate on 9 February 2017 as to the orders that had been made, IA responds by email, asking in the subject line of the email that Rein J "provide me ANSWERS HOW DID THIS MATTER GOT LISTED WHEN ITS DEALT AS APPEAL MATTER" and stating that "your Honour Needs to check the Facts from five court of appeal Justice [IA] has won his Appeal and does not have to attend that court", asserting that his matter was "listed for finality on 20th June been deceived by conflict of interest parties and i am not going to be bullied by Equity court"; and that "SORRY NOT ATTENDING AS MY MATTER IS APPEAL MATTER was converted to one whole matter Number and please do not treat me like a native not stupid or fool 2015/242864 and my doctor will not attend ITS APPEAL MATTER NOT PRIMARY COURT MATTER PLEASE FOLLOW THE RULES OF COURT APPEAL CANT BE HEARD IN PRIMARY COUTRT/ONLY IN HIGH COURT thank you".
Later on 9 February 2017, IA again emails to say that: not dealing with Equity court except Royal Commission and Judicial Commission . until registry provides me full explaining ,in regards to my appeal matter as one whole matter number for concurrent hearing on 20th June , this is set up by courts and insurer sorry i am being advice to file Complaint to Royal Commission .in regards to constantly making false orders on me with threats . on appeal matter i won twice under procedural fairness act . its a joke
Further submissions (in similar format to those sent to Rein J) were sent on 10 February 2017 to various judicial officers. A further email was sent by IA on 20 February 2017 at 12.52 pm, with IA taking issue as to the requirement to attend on 21 February 2017, stating: this matter listed by fraud solicitors involved resolved it with JUSTICE REIN ON 21st tomorrow as [IA] is waiting for full orders of Justice Payne from his chambers . and [IA] will not and never attend Primary court as i lost confidence and trust in the system fro this actions caused by the registrar . for lisiting matter number he rounded it up on 11th May as matter 2015/242864 . came back into primary court i won it back as Justice is equal and fair . they are aware of facts fr what they did to my life for 10 years and not one solicitor or barrister will replace my 10 years . Your Honour i seek only Justice from court of Appeal as appeal should be respected and orders of Justice of court of appeal should be respected and not abused by professionals from 13th April and of 20th June as matter was listed for finality what happen there Mr Gillis ? under procedural fairness act please explain it to Justice Rein your Capacity for listing a matter does not exist of 11th May as you all round it up, YOUR READ YOUR BOOKS YOU WENT TO LAW SCHOOL I DID NOT HOWEVER I EXPLAIN WHAT I WAS TOLD BY JUSTICE PAYNE ON 31ST OF OCTOBER YOU HAVE PROBLEMS GO QUESTION THE JUSTICE WHO MADE ORDERS ON 31ST OF OCTOBER YOU ABUSED IT THROUGH REGISTRY. FACTS AND POINTS OF LAW RUN THE APPEAL IN COURT OF APPEAL AS CONDUCT OF MATTER FIELD AND WON TWICE UNDER PROCEDURAL FAIRNESS ACT 1970,S.101, my last email to you all and equity court AS [IA] IS ADVICE I DO NOT HAVE TO ATTEND A FALSE LISTING AS LONG AS I EXPLAIN IT IN WRITING TO YOUR HONOUR,

[27]

Exhibit B

A sample of the email communications in Exhibit B, to which I was also taken in closing submissions, reveals a similar refrain.
For example, there is an email to the plaintiff's solicitor of 20 October 2016 that includes the statement "Mr Hooke and yourself may explain your actions in regards to my appeals in high court as i file it on Monday, we need to learn how much capacity do i need for seeking justice to my life and what fo I need a tutor for and for who ???"
On 22 December 2016, at 11.09pm, IA sends an email to the equity registrar and various persons outside the Court which again raises the issue of fraud, stating: "with Judgement orders for hearing on 20th December, behind close doors without being served" (an apparent reference to the listing by Bergin CJ in Eq of the notice of motion seeking a medical examination order before Slattery J on 20 December).
On 3 January 2017 IA emailed TA's solicitor ("Re: my request to you cancel your appointments and do not waist time and money told by S.C"), saying: sorry not attending do as you wish too with your fraud orders i know my rights and told not to by your deceived barristers unless you want me to sue the supreme court as you have not explained how did you get this matter filed when its been round up as one matter number of 11th May check with registrar as I am being advice not to attend matter is about justice and that is my capacity under Australian law . as matter is under High court rules, been advice not to attend ... seen enough of your fraud doctors not attending when i am being robbed and i am in High court with my new team to file my documents with my waiver fees. prepared my work just getting checked with new team before we file on 5th he told me not dealing with previous people or discussing my matter with any about who is my legal team you see them in court on hearing as we seek orders from high court not from any barrister or solicitor on facts and points of law under Miscarriage of Justice from not being heard as listed on 20th June ..and you fraud orders made of 12th and 20th December behind closed doors . we file all in one court high court i am being advice as courts procedure under miscarriage of justice by both Barristers on 20th June . thanks.
A further email was sent on 3 January 2017 at 6.42pm making similar statements, including: …. been deceived for my rights i won pay all damages as conduct of matter file or run the facts and points of law in High court Mr Gillis it is not about my capacity i have enough and seeking Justice is my capacity, Justice Payne gave it to me back with my treating doctors letter and me explaining he concept of your fraud from last 4 years in the capacity matter, was advice on submission result dismissed as i was not heard for my appeal miscarriage of justice under the procedural act and my appeals was for finality was prevented from being heard when listed as one whole matter Number NOT MY PROBLEM I AM BEING ADVICE BOTH BARRISTER PREVENTED JUSTICE, WHY???
On 4 January 2017, IA advised Mr Gillis by email that: haap to go to jail not attending appointments of Negligence parties doctors sorry wrong orderson matter does not exist and pay damages for it too , matter is now in high court filed tomorrow by my new barrister thank you for your interest to make me loose my capacity they judge needs to read more books too as wellv as you .see you in high court .
On 6 January 2017 IA emailed various parties again referring to "fraud orders", asking how the matter got listed and saying: WITHOUT MY INSTRUCTIONS PRO BONO TOOK MATTER ON AND LEFT ME WITH NO ONE TO DEFEND ME THIS ORDERS MADE ILL LEGAL FRAUD ORDERS CONSTANTLY BY PRIMARY COURTS JUDGES ON MY CAPACITY WHILE I AM ONLY SEEKING JUSTICE , WE LIKE TO LEARN IF THE GOVERNMENT COURT HAS BECOME PART OF INSURERS AGENT, WHAT IS THIS ORDERS I SEEK ANSWERS FROM SUPREME COURT REGISTRY . … … Miscarriage of justice for whole matter we want the matter re listed again in front of Justice who awarded my appeals on all facts as in eyes of law on 13th they frauds got busted for fraud so who has got the capacity problem, this bully deceiving my life from Justice by frauds who has to be struck off as conflict of interest as FRAUD HAS BEEN PROOFED HERE BY PROFESSIONALS AND WE WANT ALL STRUCK OF UNDER CODE OF PRACTICE ACT AS THERE IS NO PLACE TO PRACTICE LAW WHEN YOU ARE PROOF OF FRAUD. HERE YOUR HONOUR BY THIS PROFESSIONALS .WHAT A WAY OF BULLY VICTIMS THIS Frauds SHOULD BE SEND TO PRISON NOT ME AS I WILL NEVER ATTEND THEIR DOCTOR NEVER BEEN ADVICE UNDER MY OWN RIGHTS. I DEMAND MY LIFE BACK OR PAY AS CONDUCT OF MATTER FILED AND JUSTICE PREVENTED AND BAIL OUT BY INSURER AND FRAUD PROOFED HERE IN EYES OF LAW STRUCK THEM OFF...
On 17 January 2017, IA emailed TA's solicitor, stating "drop kicks look up your court orders of 31st of October thank you pay my money owed asap today or get off my matter as cannot deal with frauds for 10 years who proofed them self in eyes of law" … "not interested in money I want my bloody life for 10 years back or you all go to Jail that s what my family wants that s the capacity infront of law get it through your thick head".
On 17 January 2017 IA emailed the solicitor, including the statements : … I AM NOT A SOLICITORS DOG ON A COLLAR FOR 10 YEARS BEGGING FOR MY MONEY PAY IT OR FACE IT NEXT WEEK IN COURT AS I HAVE YOU STRUCK OFF CANNOT ACT CONFLICT OF INTEREST. You prevented justice on 20th June what is the bullshit trying to get my matter forward when you were told on 31st October by submission only and result dismissed without being heard APPEAL AWARDED ON ALL MERITS GETS ROBBED by you all who has problem with understanding your own languages ENGLISH back to school Mr Gillis read your court order of 20th December and pay my money if you say you are honest and not a fraud as proofed in eyes of law already .and that is my capacity seeking Justice nothing wrong with that is it? or do you have problem comprehending such simple English .of your own its time you judge your capacity my friends and stop living in victims money its time you are investigated by Court of appeal Justice my matter was not filed in correct court admit the facts , 2, no quantum , 3, injury deceived , Medicals deceived income deceived my life deceived for 10 years by frauds who has been controlling my life for 10 years excuse me? who are you all business lunatics who will sell their mums on streets for money that is how low you all will go should have some shame if you call your self professionals told by my doctor you had no mercy on anyone its all you and your cost we pay my friends in courts where Justice is still to be heard until you comply with law or get off my mater will not settle with toxic party from 10 years get off .pay or run your own shows .at my cost. keep my money pay with interst in court with all forensic statement of claim .prepared for justice.
In response to an email from TA's solicitor (in which the solicitor explains in a balanced way the legal position) IA emailed on 19 January 2017, asserting "sorry my matter is under judicial review by Ministers office than you as my appeals been robbed on 20th June and was not heard when it WAS LISTED FOR FINALITY AND I WON AS ONE MATTER NUMBER THAN YOU 29TH JULY, orders under procedural fairness act, you want to run your show its in either in high court of court of appeal under procedural act I am being told . by registrar . to file my documents asap".
Again, on 19 January 2017, IA emails the solicitor: Been dealt with on 31st of October thank you ,full rights given back to me with my doctors updated letter i got my rights back from Justice Payne thank you .don"t waist your time and your barristers professionality you put on very high risk from being struck off .i am being advice that MATTER DOES NOT EXIST IF YOU READ THE TRANSCRIPT OF 11TH MAY .Check your capacity please . and then, three minutes later, "Not attending that fraud listing sorry, have advice the judicial".
TA's instructing solicitor emailed IA on 19 January 2017, attaching the two Court of Appeal decisions and noting that the matter had been remitted for determination of the application to determine IA's capacity and appoint a tutor (and that this would occur on 16 and 17 March). IA responds on 19 January with the usual refrain: This has been dealt with on 31st of October Mr Gillis if you have enough capacity to comprehend the transcripts of 31st of October, by Justice Payne and none of the matters exist thank you only orders of court of appeal of 13th December, i file review under procedural fairness act and miscarriage of justice by both barristers on 20th June not my problem under the rules of court as i won as one whole matter Number I seek orders for my money with interest daily thank you
On 22 January 2017, IA again asserts in effect a conspiracy between the legal profession and the Court and, in a further email that day, tells the solicitor "run your fraud show and your barristers".
On 27 January 2017 IA sends an email calling for Mr Gillis and his team to be struck off, saying: 5, NOT ATTENDING COURT ON 16TH AND 17TH ON FRAUD MATTER AS I DO NOT GROW MONEY ON TREES FOR HIS ENTERTAINMENT FOR 10 YEARS, THIS SOLICITOR NEEDS MORE CAPACITY HE HAS TO READ COURT OF APPEAL ORDERS OF 20TH APRIL WHICH WAS IN CONTEMPT OF COURT BY HIM AND INSURER FROM PREVENTING FINALITY AS LISTED FOR CONCURRENT HEARING , PROOFED OF FRAUD AND CAN NOT SETTLE THIS MATTER AS OTHER PARTIES EXPLAINED HE CANNOT ACT. HE DECEIVED MY APPEAL ON 20TH JUNE AND MR HOOKE TO EXPLAIN WHAT IS THAT MATTER LISTED ABOUT WHEN HE ROUND IT UP AS ONE WHOLE MATTER NUMBER AND HIS BARRISTERS TO EXPLAIN MY RIGHTS GIVEN BACK, MR HOOKE HAS TO GIVE MR Gillis and his barrister their FULL capacity back AS they do not comprehend court of appeal orders of 20th April , when all have enough capacity to read and understand rules of court than will talk at mean time pay my money owed udder duty of care as I have my full rights back which he was complaining from 10 years ha been proofed to court i have enough capacity to stand for my human rights and pay all damages for taking my rights away as I won that appeal thank you . kind regards [IA] AND PAY MY MONEY REGARDS ALL CAPACITY
On 13 February 2017 IA sends an email to the solicitor saying: we proof the hinesty of [the respective barristers] your meeting in MLC building , you giving instructions in my appeal , you disrespected orders of 20th April and 31st of October , my doctor thinks your sick too .and he will not attend as we explain it to Justice this week god bless you all for your honesty. [IA] will never attend a hearing in equity court when I won my appeals twice think again? And your fraud orders will be quashed this week by court of appeal have a nice day for your fraud conduct your both Barristers and you .this are the blessing of your torture . for 10 years and god give you back .and brings you all for Justice and run your hearing for review again nice work Mr Gillis .you should a be Justice of court of Appeal we get you all promoted this week . regards capacity
There are numerous other emails in similar vein over the period, the content of which it is not necessary to include in this sample of the communications.
I add however that on 14 February 2017 IA sends an email to the solicitor saying "matter will be struck off tomorrow by justice when we see him in person with all evidence of yours no none will attend that court we made it clear to you i won my matter have fun in court of appeal next week with review as we get our judgments from there or high court" and on 22 February 2017, after Rein J's associate confirmed the orders made in IA's absence on 21 February 2017, IA emailed the solicitor and others to say: Dear Your Honour , I am sorry this is no court orders DOES NOT LOOK LIKE A COURT ORDER EVEN WITH NO SUPREME COURT LETTER HEAD no justice signature on orders made does not look like orders of court? IT'S A JOKE RIGHT . …

[28]

Exhibit G - Email communications with Dr Smith

The bundle of email communications produced by Dr Smith (Exhibit G) as communications in which IA gave instruction that he not attend court or requested that he not attend court includes, by way of example, the following emails.
On 17 November 2016 (a week after Dr Smith's 10 November 2016 report) IA emails the doctor, stating : thanks for helping me out with the letter , their notice of motion got rejected on Friday they have got dates for next year which is in March , not relevant to my matter any more as i got my capacity back from Justice Payne on 31st of October under procedural fairness act , they insurer solicitor Mr Gillis is in lots of trouble and ask me to support him on Friday I said no not on ill legal motion against my appeal for finality by submission by court of appeal only , please if he ask you for hearing next year let him know [IA] has his capacity back so there is no more hearing in this matter its only by submission on 25th of November , and justice will make judgement on papers luckily he did not get struck off on Friday as they judge was very upset with his notice of motion matter already dealt with by court of appeal and he file his motion in supreme court no more hearing or courts. many thanks Doctor .
Then, by email of 31 January 2017, IA asked Dr Smith not to attend the hearing "listed on as fraud hearing" on 16/17 March 2017, asserting that he won his full rights back on 31 October "with your letter provided to court". The email was also addressed to the Court of Appeal registrar, the Office of Legal Services Commissioner and the Judicial Commission and was titled "re appointments, Attentions to, Doctor ,S. Smith my appeal is under Judicial review through court of appeal only as advice my Judicial commissioner". At the conclusion of the email, IA appears to ask the registrar to explain to hem "WHAT IS GOING ON HERE THROUGH REGISTRY", a query apparently relating to how the registrar had listed his matter number when "on 11th MAY ROUND IT UP AS ONE WHOLE MATTER NUMBER".
By email of 2 February 2017, IA asked that the doctor be advised "not to attend court on 9th as matter dealt with on 31st of October i won my full rights back from court of appeal". Also on that date he emailed various parties to advise that the (Equity Division) "matter number Listed 2015/19513, in equity court does not exist as from 11th May, as it was round up as one whole Matter Number 2015/242864" (that being the file number for his appeal proceedings).
In a further email of 9 March 2017, IA asked Dr Smith: Dear Doctor, please do not attend that court on 16th and 17th March, under rules of court matter has been heard twice I won my appeals on my own and not going to loose my rights and leached out in primary courts its under review by court of appeal only with my forensic evidence Doctor. And there is not more listing of hearing dates as told on 31st October by court of appeal. subpoena given to you by insurer does not exist as I have appointment to get that matter struck off under rules of court I won they owe me damages Doctor for taking my rights away left me on 40 dollar fortnightly to live on. please do not worry about that hearing date as I will never attend I have tod the judges of the equity court off check your legal capacity before you list old matters dealt as appeal . Never replied who this people think they are court with rules of court not Mr Gills rules he lost his cost and all his friends cost history not coming back and may loose practice or go to jail both. barrister back as solicitors. Justice is equal why let this crooks get away with murder to my life for 10 years who help me in 10 years no one . why pay cost they lost it on facts and points of law . and not coming back .
The response from Dr Smith's rooms was that he had been subpoenaed to attend on 17 March and unless advised otherwise by the court would do so. IA's response to this was that "I have advice the courts I am not attending as matter heard under procedural fairness act I won my matter so why should I loose my rights when they lost .there is not other mater number and this will be shorted out today by CEO of judicial .through Justice Payne".
On 13 March 2017, IA advised Dr Smith that "it would be better not to turn up as the orders are for court of appeal to determine my matter with my forensic assessments". The email made clear that IA was aware Dr Smith had been subpoenaed to attend court; and referred to "this is fraud on matter I won twice under procedural fairness act … by parties in conflict of interest who lost on 31st of October". The email went on to say "now I am been advice to file my reports to AFP under commonwealth law Fraud", accusing "Dr Jungfer , both conflict of interest parties and trustee who listed old matter number … as matter was converted to one whole matter Number". IA concluded "enough of mental abuse and torture by parties who are frauds and have not rights in this matter …. I seek justice as conduct of matter I won on all merits".
Then (in advance of the present hearing no doubt), there was an email by IA to Dr Smith on 13 September 2017 (at 1.39am) alerting Dr Smith to there being a matter in the equity division ("they filed it again …while appeal pending decision of 13th December filed behind closed doors through retired judge of equity court") and telling Dr Smith that IA would come in soon to see him and: thanks doctor please don't attend any hearing in any primary court my team will not attend that. I have won my appeal again on my own whole matter has to be determined by justice with my forensic evidence which are ready to be filed for court of appeal only.
On 3 November 2017 (at 1.36am) IA sent another email to Dr Smith and to others, including the Court of Appeal registrar and my associate as well as the judicial commission, office of legal services commissioner and the Attorney-General, commencing: Dear Doctor , please do not attend any fraudulent hearing as matter has been heard twice in court of appeal, Justice PAYNE HAS GIVEN MY FULL CAPACITY BACK ON 31ST OF OCTOBER 2016 , ALL PARTIES LOST THEIR COST ON ALL FACT FOR 11 YEARS , AND USED REIGSTAR TO MODIFY APPEAL AND TRANSCRIPTS AND ORDERS OF 31ST OF OCTOBER 2016 , THATS NOT MY MATTER ANY MORE AS IT WAS CONVERTED TO ONE WHOLE APPEAL AND HEARD TWICE ONLY MATTER AT FOOT 2015/242864 TO BE DETERINE BEFORE 3 JUSTICE ON PAPERS ONLY , STRICT ORDERS HAS BEEN BREACHED BY FRUADULENT PARTIES , AND REGISTRAR WHO IS UNDER INNVESTIGATIONS THROUGH AFP CDPP , my matter is going to high court to be determine before justice , as my barristers advice . Under rules of court all fraud conduct by supreme court registrar … … please DO NOT ATTEND ANY FRAUDULENT HEARING AS ITS NOT A MATTER ANY MORE FROM 11TH May 2016 , and its under investigations by CDPP. under commonwealth law fraud lots of frauds in registry AND BY FRAUDULENT PARTIES we have to bring the to justice , as they deceive appeals ITS money matter, frauds will be brought to justice for murder to my life for 11 years . it is fraud hearing, by equity court. [IA] will never attend any hearing with parties who don't exist and hiding signed off orders of respected your HONOUR Justice Payne AS ADVICE BY JUSTICE PAYNE NOT TO ATTEND ANY PRIMARY COURT ANY MORE, as your honour your read your letter and gave my full rights back which was stolen off me by frauds in 2015, while I only seek justice, parties lost their cost holding my human rights through fraud registrar … … Please Doctor do not attend that court full of frauds. trying to rob my appeal. that will never happen under rules of UCPR. if they do make any wrong orders on fraudulent matters I will sue they equity court through high court for al damages and registrar … I won they have to pay all damages with evidence in high court with precedent . that's my capacity Doctor, they tested me for 11 years they got they result for it on 31st of October before, fair and humble honest justice Payne . who I recommend to be next Chief Justice of court of appeal. and they robed justice orders . modifying appeal . frauds will be brought to justice from high court. Justice is equal . I won I expect all damages as conduct of my forensic evidence which is now competent for court to determine only not by frauds. who judge my capacity and robed my life for 11 years that's they strict orders . of 31st of October 2016 only before 3 justice who heard my appeal . or high court as my barristers advice . rules are rules you loose you go home or appeal in high court, I won twice however, I am been told to go to high court so be it we deal high court . with frauds there . under rules of court. any subpoena they send you is fraud subpoena as its no longer a matter any more from 11th May 2016. you have they rights to sue they court too doctor, for fraudulent subpoenas . on fraudulent matters.
A further email was sent by IA to Dr Smith on 6 November 2017 seeking a copy of the doctor's letter dated 10 November 2016 and making similar allegations as to IA having "got my full capacity back with your letter" and saying "I won told by justice not to attend any primary courts strict orders modified by registrar who has been bribed hiding signed off orders of respected justice Payne , please forward me the copy of they letter so I can forward it to courts registry in equity division who are trying to rob my appeals heard as one whole appeal agreed by both parties barristers as one whole matter parties lost their legal capacity and punished before respected your honour".
Interestingly, IA tells Dr Smith in that email that the letter in regards to his capacity dated 10 November 2016 was "tying [sic] error as its was 10th October 2016, to justice Payne heard it on 31st of October". There is no suggestion that Dr Smith's report clearly dated 10 November 2016 was before Payne JA two weeks earlier on 31 October 2016. It accords with IA's misunderstanding of what occurred on 31 October 2016 and his misapprehension that what was determined by the Court of Appeal in the judgment handed down in July 2016 was that he had capacity (when in fact the Court of Appeal quashed the orders that had been made by the protective list judge but remitted to the Equity Division the application by TA in which the issue of capacity had to be determined afresh).

[29]

Exhibit H - email communications on 6/7 November 2017

Exhibit H comprises a series of email communications from IA, commencing at 4.07 am on 6 November 2017 to, amongst others, my associate (and sent in apparent response to an email from TA's solicitors informing IA that the capacity hearing would be proceeding on 7/8 November before me). That email commences: ask your fraud barristers who owe me my life from 2007 , to read they court orders of 29th July , al has been quashed and dealt with my full capacity is return by court of appeal and you don't have capacity to settle they matter as you robed 3 justice orders on 8th August 2016 , modified appeals agreed as one whole appeal heard twice under procedural fairness act 1970s101, have a nice day with justice Ward , any more wrong orders will sue equity court as equity owes me damages from 2015 all now been competence for high court, read more books in regards to they rules of court before you and your bribe judges in equity division check my capacity Mr Gillis, and check yours with OLSC, we have advice they commissioners, you have lost your cost from 2007 for both parties, kindly get lost you are not parties to they matter from 31st October, all you fraud orders will be dealt with in high court, for justice on my appeal I won and you all tried to rob my appeal., you have cost your client a lot more in damages from 2007 , for deceiving my human rights . have a nice day with your fraud hearing [IA] will never attend as advice by respected your Honour Justice Payne, questions face they justice and explain your legal capacity in high court as we will subpoena Justice Payne to verify they orders of 31st of October you all robed and that's my capacity to proof in high court your fraudulent hearing is matter for you frauds who owe my life for 11 years , thank you .and face Justice Payne to verify they orders of 31st of October 2016, you robed justice of court of appeal orders from 29th July 2016, and you are punished by court of appeal and you cannot defend this is high court as you lost your legal capacity in appeal matter and you modified appeal to rob my life again , ... the email continuing in similar vein and making allegations of fraud against the barrister, solicitors, registrar and of bribery of a judicial officer.
It is not necessary to go through the content of all of the emails in Exhibit H. Suffice it to note that they make similar assertions as the other email communications. As for Exhibit J with the compensation calculation, I have already noted it.

[30]

Relevant Principles

As noted earlier, the application by TA is for a partial management order under ss 40 and 41 of the NSW Trustee and Guardian Act, that order relating to that part of IA's estate as relates to his claim for compensation arising out of the 2007 motor vehicle accident and conduct (including their potential settlement or compromise) of the District Court proceedings brought by IA in respect of that claim. TA no longer seeks an order for the appointment of a tutor to act for IA in the District Court proceedings (that not being necessary if his compensation claim is the subject of a protected estate management order).
There is no doubt that there is power to make a management order of a part only of the protected person's estate (see s 40 and s 38 of the NSW Trustee and Guardian Act; and the discussion by Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106; and in Re AAA; Report on a Protected Person's Attainment of the Age of Majority [2016] NSWSC 805 at [56]-[59]).
I had cause to consider the principles relevant to the appointment of a manager to that part of a person's estate as was comprised by that person's claims in particular proceedings in Mao v AMP Superannuation Limited [2017] NSWSC 987 and it is not necessary here to repeat the general observations I made in that case. Suffice it to note that the general principles to be applied when exercising functions, including the making of management orders, with respect to protected persons are set out in 39 of the NSW Trustee and Guardian Act. They include that the welfare and interests of such persons should be given paramount consideration; that the freedom of decision and freedom of action of such persons should be restricted as little as possible; and that the views of such persons in relation to the exercise of those functions should be taken into consideration.
Part 57 of the UCPR deals, relevantly, with the evidence required when an application is made pursuant to s 41 of the NSW Trustee and Guardian Act. The evidence relied upon in support of the present application has been noted earlier. It includes not only expert opinions from a number of psychiatrists (including IA's treating psychiatrist) but also evidence as to IA's own communications as to the present litigation and as to his claim for compensation (from which there is ample basis to assess his capacity to conduct or provide instructions in relation to the proceedings in which his claim for compensation is brought). There is also material in the evidence going to other aspects of his personal circumstances.
As to the threshold question, whether IA is capable of managing his affairs in relation to the compensation claim, it is well recognised that the test as to capacity is "issue specific" (see Masterman-Lister v Brutton & Co [2003] 1 WLR 1511; [2002] EWCA Civ 1889 at [74]; Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102; and more recently Re WS [2017] NSWSC 745 at [25], citing Guthrie v Spence (2009) 78 NSWLR 225; [2009] NSWCA 369 at [174]-[175]).
In Gibbons v Wright (1954) 91 CLR 423 at 437, the principle was expressed as follows: The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation. …
Here, having regard to the limited management order that is now sought, the question of capacity relates solely to the conduct of litigation. In Dalle-Molle, Debelle J posed the relevant question (at [20]) as being whether the person has the capacity to give "sufficient" instructions to take, defend or compromise legal proceedings - "sufficient", in this context meaning instructions of a quantity, extent or scope adequate for the purpose or object of those instructions. His Honour said (at [22]): When qualifying the noun 'instructions' it is signifying that a person is able, once an appropriate explanation has been given, to understand the essential elements of the action and is able then to decide whether to proceed with the litigation or, if it is a question to agreeing to a compromise of the proceedings, to decide whether or not to compromise. [my emphasis]
Debelle J accepted (at [27]) that evidence of the capacity to make other decisions which have legal consequences and to conduct ordinary day to day affairs would be relevant but considered that it must be weighed with the other evidence adduced. Further, the fact that a person was vulnerable to exploitation or prone to rash or irresponsible decisions might be relevant to a determination of the question whether that person was able to give sufficient instructions but it must be considered with other relevant evidence.
His Honour noted that the question whether the person has the capacity to give sufficient instructions must be examined against the facts and subject matter of the particular litigation and the issues involved in that litigation. Accordingly, in a complex matter it may be necessary for careful advice and explanation to be given and for there to be time for consideration by the litigant. His Honour said (at [24]): A person will not be under a disability, if after careful advice and explanation and time to consider the advice and explanation, he then gives instructions.
According to his Honour, the requisite level of understanding of legal proceedings would involve an ability "to understand the nature of the litigation, its purpose, its possible outcomes, and the risks in costs which is of course but one of the possible outcomes" (at [26]).
In Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249, Handley JA (having referred (at [33]) to the comments of Dixon CJ, Kitto and Taylor JJ in Gibbons v Wright) considered (at [35]) that the test of capacity for a litigant in person would be greater than that for a litigant retaining a solicitor.
More recently, in Slaveski v Victoria (2009) 25 VR 160; [2009] VSC 596, Kyrou J posed a number of questions that his Honour considered might be relevant to the determination as to whether a self-represented plaintiff has the requisite capacity to conduct his or her legal proceedings (see [32]; to which Lindsay J had regard in Re WS at [31]). Those include matters such as whether the person understands the factual framework for his or her claims and the type of evidence required to succeed; is capable of understanding what is relevant to the proceeding and what is not relevant when those matters are explained; is capable of assessing the impact of particular evidence on the litigant's case; is able to understand the Court processes and the basic rules for conducting the case when those matters are explained; is able to understand court rulings when the matter comes to a hearing and the rulings are explained and is capable of complying with them and directions given by the judge; is capable of understanding the roles of counsel, instructing solicitors and witnesses; is able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the hearing; has an insight into the possible adverse consequences of his or her behaviour in court; is capable of understanding the possibility that he or she could lose the case and the risks or consequences if that were to occur; is capable of assessing any settlement proposal on its merits having regard to the state of the evidence, submissions and other developments in the proceedings at the time the proposal was made. Other matters relevant to take into account are the risk that the stress and pressure of the litigation might cause harm to the litigant and whether self-represented litigant would be in a position to conduct the matter in a way that facilitates the just, quick and cheap resolution of the real issues in dispute.

[31]

Determination

I have no doubt that IA is incapable of managing his claim for compensation, whether as a litigant in person or (if he were again to obtain legal representation) as a plaintiff instructing legal representatives in the conduct (including any potential settlement) of his case. I do not consider that IA is capable of conducting the balance of the District Court proceedings (the assessment of damages) in a balanced and objective way. On any view of the matter he has a wholly unrealistic expectation as to the quantum of his claim and has demonstrated in his correspondence an unwillingness to contemplate any settlement for a lesser amount.
The medical evidence overwhelmingly establishes that IA does not have capacity to conduct litigious proceedings: he is thought disordered; rigid in this thinking; has grandiose ideas; exhibits delusional thinking and paranoia; and is unable to process or consider ideas inconsistent with his own views. However his condition is diagnosed (whether as Schizophrenia or as a Major Depressive Disorder with or without pyschosis), all the psychiatrists are in agreement that he now lacks capacity to conduct legal proceedings and there is no prognosis that this will improve.
Even accepting, as Dr Jungfer quite fairly indicated was a concern to her when she declined to re-examine IA and provide an updated report, that Dr Jungfer's assessment of IA may be negatively coloured by her experience of what she perceived as his harassment or intimidation via emails and attendances at her consulting rooms, I considered Dr Jungfer's evidence to be given in an objective and balanced fashion. Her reasoning as to the tests of capacity was considered to be fair by IA's own treating psychiatrist and her conclusions that IA lacks capacity are now supported by Dr Smith (as well as by Dr Roberts). Moreover, her conclusions are more than amply supported by the tone and content of the email communications sent by IA (to multiple persons at a time and often a number of times throughout the same day and night).
IA has demonstrated a continuing inability to understand or accept information relevant to the legal proceedings that are on foot. That is most clearly demonstrated by his inability to understand (or accept) the outcome of his appeal proceedings and his insistence (to all and sundry) that the proceedings in the Equity Division do not exist and are a fraud. I agree with Dr Jungfer's assessment as to his rigidity of thinking and inability to take on and consider information, propose alternatives to the decisions he forms and to reason as to the risks and benefits of particular options that may be available to him. He clearly does not appreciate the consequences of his conduct in relation to the delay in resolving his claim for compensation.
Similarly, although Dr Roberts did not medically examine IA in order to assess his capacity, I am satisfied that his assessment of IA accords with all the evidence before me of IA's conduct. His reasons were logical having regard to the material before me.
Finally, as to Dr Smith, I have no reason not to accept his assessment that IA now definitely lacks capacity. Insofar as Dr Smith's earlier conclusion to the contrary was based on an understanding given to him by IA as to what had transpired in the Court of Appeal proceedings (and in particular that a finding had been made by Payne JA of IA's capacity), the assumption on which that earlier opinion was based has been shown to be flawed. Insofar as it was based on Dr Smith's assessment that IA had a "good grasp" of the legal issues, that too must now be seen as flawed. I have considerable doubts as to the opinion expressed by Dr Smith (and for that matter Dr Ahmed and Dr Ablante) as to IA's capacity as at 2015/2016 to conduct legal proceedings (having regard to what has emerged since then) but that is not the issue before me. The question is as to IA's capacity now to conduct legal proceedings and manage his claim for compensation. There is no doubt in my mind that he does not have such capacity. Posing the questions considered in Slaveski and applying the tests adnumbrated by Dr Jungfer, there can be no other conclusion.
IA also does not exhibit an understanding or willingness to engage in appropriate conduct in the course of litigation. He has persisted in sending email communications direct to chambers in circumstances where he has been told not to do so (there was, for example, an email of 2 February 2017 at 10:26am sent by the associate to Rein J - part of Exhibit A - informing IA that it was inappropriate for him to write to the judge directly; a direction with which IA did not comply) and has persisted in doing so even after the relevant judge has ceased dealing with the matter (see his ongoing communications with Payne JA's chambers). His conduct in failing to comply with Court orders (because of an assertion that they were a fraud or that it was a "set-up"), and in urging Dr Smith not to attend the hearings when he had been subpoenaed to do so, does not give any confidence that IA will be able to conduct his compensation claim henceforth in an appropriate manner. Nor for that matter does the tenor of some of his correspondence (references to legal representatives selling their mothers on the street, for example).
I have taken into account IA's emphatically expressed view that he does have capacity and his wish to conduct his own proceedings. I nevertheless share the views expressed by Lindsay J as to the unlikelihood of the compensation proceedings being finalised in the absence of the making of protected management orders of the kind I now propose to make. It is unfortunate, to say the least, but I suspect an inevitable consequence of IA's psychiatric condition and thought disorder, that IA will no doubt not appreciate that the making of such orders is in his best interests insofar as it will permit his compensation claim finally to be determined.

TA v IA

At a glance

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Before

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Catchwords

Judgment (33 paragraphs)

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Legislation Cited (5)

Cases Cited (23)

Cited By (2)