Wellington v Shaddick trading as Shaddick Baker & Paull

District Court of NSW|2021-02-03|Before: Rothman J

Judgment

This judgment concerns whether the plaintiff is under legal incapacity.

Background

Nathan Wellington was injured in a motor vehicle accident early on 21 October 1998 whilst travelling to work. The claim forms submitted to his employer's insurer about a month after the accident indicate that the other driver may have been negligent. The progress of the matter thereafter was a tortuous one.
Mr Wellington was at various times represented by each of the three defendants in workers compensation proceedings. On 22 August 2016 those proceedings were resolved by Mr Wellington obtaining a commutation of his rights under workers compensation legislation for approximately $750,000 clear of past payments.
On 7 February 2017 Mr Wellington, represented by a firm of solicitors not a party to these proceedings, sought an extension of time to commence, out of time, proceedings for personal injury damages, in respect of the accident. Rothman J, although satisfied of some of the ingredients of that application, found that the delay in the period between 17 November 2014 and 27 July 2016 had not been explained satisfactorily and dismissed the application. [1]

These proceedings

The matter was called on for trial on 10 November 2020. Mr Wellington tendered some documents and gave some oral evidence. However, Mr Wellington's conduct in court raised questions about his capacity to conduct the proceedings. Exhibit A in the proceedings, and on this application, is a report by his clinical psychologist, LeRoy Onuoha, dated 11 July 2020, the substance of which stated: "Mr Wellington is severely psychologically traumatised as a result of matters relating to the ongoing judicial proceedings in relation to his entitlements. His sufferings have been considerable. Mr Wellington's symptoms are significant and severe, and impact multiple areas of his life. Associated impairments severely interfere with his day to day functioning. I have observed significant levels of abulia or lack of motivation, lack of initiative, diminished emotional response and diminished ability to plan action and to react. There is also evidence of a decline in functioning at multiple domains. Mr Wellington's mental health decline due to the ongoing proceedings also result in considerable impairment and disruption to family, social and employment functioning. His conditions are such that his behaviour, thoughts and conversations are significantly and frequently disrupted making work or training difficult if not impossible. Memory, social cognition and higher order cognitive skills are impaired. It is my clinical impression that these described symptoms are directly linked to the ongoing matters, and its protracted nature. At present Mr Wellington is treated with Cognitive Behavioral Therapy. He is also under the care of his G.P. Suicide risk assessment and prevention are also important aspects of treatment."
The psychologist concluded the report by referring to "these serious mental health imperatives".
As a result of this report, and Mr Wellington's conduct in court, I was concerned as to whether Mr Wellington may be under legal incapacity. I adjourned proceedings, and made directions about evidence in respect of an incapacity hearing.
In addition to the psychologist's report, there was read an affidavit of Ms Catherine Hing, the solicitor having day to day conduct of the proceedings on behalf of the first defendant. The affidavit annexed correspondence received from Mr Wellington.
The correspondence from Mr Wellington contains repeated allegations of misconduct: 1. by the defendants' solicitors, [2] including "threats", "absolute misconduct", "ongoing discrimination", "disgraceful conduct", "disgraceful misrepresentation", "lying", "obstruction of process", "lies and mislead my rights", "pervert the course of justice", "fraudulent and blatantly criminal??lies" and "lies and deception"; 2. in the proceedings generally, [3] which were said to be "an untouchable and corrupt disgrace", "a diabolical disgrace", "blatantly biased and non-transparent", "calculated and deceptive misconduct/perversion of justice"; and in the adverse treatment of him, [4] including "no duty of care to my health and well being", that he was "treated with contempt and as a leper" "to distress me"; 3. in the conduct of the mediation, [5] including "His Cossy [sic] arrangement should be investigated", "very obstructive and perverted process", "non-independent", "completely unethical mediation", "appalling corrupted process", "Mr Rolfe and his corrupt, unlawful paid association and obstruction of proper process"; 4. by the barristers, [6] including "all three barristers have lied to me", "further outright lies from Mr Barnett", "Mr Priestley's Atrocious cross eyed 10 year old face pulling exercise", [counsel's] constant lies and scoffing, [Mr Barnett's] most blatant lies to myself and the Court"; and 5. by court officers, [7] including "Blatant Lies from the Elderly Court Officer", [Registrar Howard's] past misconduct", and: "I also request the Court recordings to assist me in hearing what my position is and the conduct of these matters - my complaint regarding Judge Taylor is noted - again Mr Speakmans Office requested these recordings to fully (I trust) investigate my most serious complaints as to the conduct of these matters. I note Mr Taylor still can not even clarify properly my rights/Maximum figures of compensation payable under these processes' / Advice from the three Barristers conflicting / and the misleading lies from these parties is noted again here in this document - not looked into by Judge Taylor for obvious reasons… If Mr Taylor (Judge Taylor) refuses to supply these recordings for transparency - I require his excuses/ reasons - documented in writing." [8]
Mr Wellington has also: 1. made continued references to his health, [9] including "completely overwhelmed with distress, with anxiety" and "my condition both physical and mental deterioration with every single obstruction of justice and proper process"; and 2. included repeated references to apparently irrelevant matters. [10]
During the hearing, Mr Wellington has similarly made repeated: 1. allegations of misconduct or unprofessional behaviour by the defendants' counsel; [11] 2. allegations of misconduct by the Judicial Registrar; [12] 3. allegations of misconduct with regard to the Court, the proceedings or legal "process" generally; [13] 4. allegations of misconduct in relation to the failed mediation; and [14] 5. references to his health. [15]
The listing of these allegations in detail is not intended to indicate a solid foundation for them.

The law of capacity

As explained in Mao v AMP Superannuation Ltd [2015] NSWCA 252 at [2]-[5], Div 4 of Pt 7 of the Uniform Civil Procedure Rules 2005 is relevant if the plaintiff's capacity is in doubt.
Rule 7.13 provides that a "person under legal incapacity includes a person who is incapable of managing his or her affairs". Rule 7.14 provides: "7.14 Proceedings to be commenced or carried on by tutor (1) A person under legal incapacity may not commence or carry on proceedings except by his or her tutor. (2) Unless the court orders otherwise, the tutor of a person under legal incapacity may not commence or carry on proceedings except by a solicitor."
The tutor cannot be under legal incapacity, or be an officer of a court or have an interest adverse to the party for whom the tutor is appointed, [16] and cannot act as tutor without filing a form of consent in accordance with r 7.16.
A party can commence proceedings against a person under legal incapacity, [17] but cannot take any further step until a tutor has entered an appearance. The removal of a tutor enlivens the Court's express power to stay the proceedings, [18] but that power "would be surplusage" in respect of a plaintiff under legal incapacity, by reason of r 7.14(1). [19]
No tutor has been appointed for Mr Wellington, nor has any been nominated. No application for appointment of a tutor has been made. In the result, if Mr Wellington is a person under legal incapacity, the proceedings cannot continue. In the course of the hearing, the Registrar also made substantial efforts, ultimately unsuccessfully, to obtain pro bono legal representation for Mr Wellington pursuant to an order I made under r 7.36 of the Uniform Civil Procedure Rules 2005.
In Mao, the Court of Appeal noted that the primary judge in that matter concluded "that the Court should not of its own motion make any declaration as to Ms Mao's inability to manage her affairs", [20] but adjourned the proceedings sine die, thus effecting a stay of the proceedings unless circumstances changed such as a tutor being appointed or Ms Mao regaining capacity.
The Court of Appeal also noted that the primary judge "was not satisfied that Ms Mao has the capacity to understand that she could possibly lose [the proceedings]", [21] and that while she could and did understand the court processes "when such matters were explained to her", the primary judge "was not certain that she would be able to do so during a hearing". [22] Nor did she have the capacity "to understand the roles of counsel and solicitors for the defendants", [23] or to assess "any settlement proposal on its merits". [24]
The Court of Appeal also noted that the primary judge considered some of the statements made by Ms Mao to demonstrate: "her inability to understand the nature of the litigation in which she is engaged, the possible outcomes of the litigation and the risks associated with it, including the possibility of an adverse costs order if she is unsuccessful." [25]
The primary judge gave weight to Ms Mao's wishes, which were apparently against the stay, but found that she was "under a legal incapacity and that an order should be made for the appointment of a tutor". Since no tutor was nominated, the proceedings could not continue. The description of Ms Mao and her ability to conduct the litigation are not dissimilar to Mr Wellington.
The Court of Appeal indicated the justification for the prohibition in r 7.14 of the continuance of proceedings when a person is under legal incapacity: "A person under legal incapacity should not be permitted to commence or carry on proceedings to the detriment of that person unless represented by another person who is able to make reasoned and sensible forensic decisions on behalf of the first person in relation to the proceedings." [26]
The Court of Appeal did not indicate error in the primary judge's finding of legal incapacity, [27] and at [59] stated that Ms Mao "had no capacity to commence proceedings". I infer that the considerations of the primary judge on the question of capacity were appropriate, notwithstanding the finding that the defendants' original application was defective.
In Hazairin Iskandar v Zulfikri Mahbur & Ors, [28] Slattery J decided that if there is an arguable case that a person is under legal incapacity, the matter of a tutor should be brought "rapidly on for hearing". [29]
In Slaveski v State of Victoria, [30] Kyrou J determined that there is no universal test for determining whether a person is capable of managing his or her own affairs. [31] In relation to litigation in which a person is a party, the person must be able to understand the nature of the litigation, its purpose and possible outcomes, including the risks in costs, [32] for the test is issue specific: "when applied to different issues, it may yield different answers". [33] Also: "The question of incapacity in relation to litigation must be examined against the facts and subject matter of the particular litigation, the number and complexity of the issues involved and the identity, number and interests of the other parties, particularly opposing parties. A person can have the requisite capacity for one proceeding and lack it for another." [34]
Here Mr Wellington's litigation concerns a claim against three of a greater number of solicitors that have acted for him. It involves complex issues of breach and causation of each solicitor and the duty of care in giving advice in respect of and commencing proceedings for personal injury damages at the different times each solicitor acted. The damages amount in these proceedings is complicated by the settlement of the workers compensation proceedings, the multiple defendants, and the prospect of proportionate liability.
Kyrou J identified a number of questions to consider. He said: "In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules: (a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims? (b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her? (c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case? (d) Is the plaintiff able to understand the court processes and the basic rules for conducting his or her case when these matters are explained to him or her? (e) Is the plaintiff able to understand court rulings made during the trial when they are explained to him or her? (f) Assuming the plaintiff is able to understand court processes, the basic rules of conducting his or her case and court rulings, is he or she capable of complying with them and directions given by the judge? (g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse? (h) Is the plaintiff 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 trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)? (i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her? (j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her? (k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view? (l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made? (m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?" [35]
Mr Wellington had previously repeatedly asserted, and readily conceded, the application of consideration (m). Mr Priestley of Senior Counsel, who did not take a position on Mr Wellington's capacity other than to submit that the matters in evidence and in the conduct of the trial might support such a finding, expressly could not identify an answer in respect of Mr Wellington to any of the questions posed by Kyrou J that might support a finding of capacity. Neither did any other party suggest a reason to support capacity. In my view, none of the questions posed by Kyrou J could be answered affirmatively except possibly for matters (d) and (e), where Mr Wellington may understand rulings and court process when explained, although he has manifested a clear lack of capacity to adhere to them either in or out of court.
Kyrou J noted that: "A self-represented person who is incapable of continuing to act as his or her own advocate is not necessarily incapable of managing his or her affairs in relation to the relevant proceeding, as that person may be capable of retaining legal representatives to continue to conduct the proceeding." [36] Here Mr Wellington appears to be incapable of retaining legal representatives to act for him in the proceedings.
Kyrou J also noted: Ordinarily, the court will determine whether a party has the requisite capacity … after receiving medical evidence. However, where a party's incapacity is readily apparent from his or her behaviour inside the courtroom, the court may be able to make the determination without the assistance of medical evidence." [37]
Here the Court has the treating psychologist's report. No party sought an adjournment to provide a psychiatrist's report, and Mr Wellington suggested that he would not be able to obtain one.
Although the legislation in Slaveski was not identical to r 7.14, the differences did not appear, and were not submitted, to cause differences in the test of legal incapacity.
In Murphy, Handley JA, with the agreement of Tobias JA, stated: "The application of r 5(3) [a not identical predecessor to UCPR 7.14] to an incompetent person who seeks to litigate in person will involve practical difficulties. There may be no-one who is willing to accept appointment as tutor. A professional person might have no prospects of being remunerated for his or her work. In any event he or she may be unwilling to accept the risk of being ordered to pay the costs of the other party. In some cases the Protective Commissioner may be willing to accept the appointment. However, whatever the practical difficulties may be, the court cannot ignore the prohibition in r 5(3) when it knows that a litigant in person is not capable of managing his own affairs. If a tutor cannot be appointed the court may have to stay the proceedings until the litigant recovers or a tutor can be appointed." [38]
In A v A [2015] NSWSC 1778, an applicant was found to be incapable of managing his affairs, and because he was unable to retain or obtain the consent of a person able and willing to act as tutor, or the services of a solicitor or barrister prepared to act without a tutor, the proceedings in the District Court were effectively stayed. In an application for revocation of management orders under s 41 of the NSW Trustee and Guardian Act 2009 and orders for the NSW Trustee to be appointed as tutor, Lindsay J noted as follows: "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. From every prospective, the due administration of justice (including an effective exercise of protective jurisdiction) requires a solution to this problem. It is not a problem unique to these proceedings, although each case is unique in its own way and must be approached so. The applicant in the present proceedings lacks the insight to see that, without professional help to overcome a disability, he is likely to cruel his reasonable prospects for success in his common law compensation proceedings 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." [39]
This description of the applicant shows him to have features in common with Mr Wellington. Although Mr Wellington is apparently not without a degree of intelligence, he appears incapable of dealing with the myriad of issues involved in conducting litigation, and regularly resorts to blaming others, including the Court, including making serious allegations of misconduct by them, asserting reliance on s 56 of the Civil Procedure Act 2005 as a means of compelling parties to offer what he perceives to be a reasonable settlement offer, and lamenting his mental challenges said to be caused by the defendants, their legal representatives, and others. None of the matters he raises operate to progress the litigation he is maintaining.
I am satisfied that Mr Wellington has legal incapacity and the proceedings cannot continue. They must remain adjourned until he obtains a tutor, obtains legal representation, or is able to establish a substantial change in his condition and capacity. Whether he or any party makes application to the Supreme Court for orders akin to those made by Lindsay J in A v A, which are not available to be made by this Court, remains uncertain, although Mr Wellington, when informed of these matters at the conclusion of submissions on this hearing, affirmed a will to do so.

Orders

The orders of the Court are: 1. Adjourn the proceedings for 12 months to Thursday, 3 March 2022 at 9.30am for mention before the Judicial Registrar, on the basis that under r 7.14 of the Uniform Civil Procedure Rules 2005 the proceedings cannot presently be carried on by the plaintiff without a tutor. 2. Parties directed to inform the Judicial Registrar within seven days of the result of any application heard and determined by the Supreme Court in respect of this matter. 3. Grant liberty to apply to each party, including to establish that Mr Wellington has: 1. obtained the consent of an able tutor; 2. retained legal representation; or 3. acquired legal capacity to manage the litigation.

Endnotes

Wellington v Lawler [2019] NSWSC 284 at [187]-[188].
Exhibit 1D1, pp 1, 8 and 12.
Exhibit 1D1, pp 1 and 2.
Exhibit 1D1, p 1.
Exhibit 1D1, pp 2, 8 and 63.
Exhibit 1D1, pp 16, 26, 37, 46 and 50.
Exhibit 1D1, pp 60 and 73.
Exhibit 1D1, p 82.
Exhibit 1D1, pp 12 and 13.
See e.g. photographs of rotting house posts and door jambs, roof valleys filled with leaves, spilt coffee on a desk, and piles of documents.
11/11/20, T114/40-42, T137/41, T148/5; 12/11/20, T154/41-T155/6, T156/2, T156/47, T162/11-31, T180/23-47, T208/25-28; 10/12/20, T1/29, T13/30-43, T16/43; 3/2/21, T2/23, T15/31-38, T15/47-16/2, T18/22.
12/11/20, T216/2-11; 10/12/20, T4/31.
11/11/20, T111/11-15, T111/39-44, T125/34; 12/11/20, T180/48, T208/29-31; 10/12/20, T14/11; 3/2/21, T27/17.
11/11/20, T125/4-6; 10/12/20, T13/18; 3/2/21, T19/49, T41/34.
10/11/20, T17/21, T17/36, T65/11; 11/11/20, T128/13, T205/49; 12/11/20, T218/19, T218/32; 10/12/20, T1/37, T4/39, T4/46; 3/2/21, T2/24; 3/2/21, T38/21, T39/44.
UCPR 7.15(2).
See UCPR 7.17(1).
UCPR 7.18(3).
See Mao at [5] (the reference to r 7.1(1) seems to be a typographical error of a reference to r 7.14(1)).
At [25].
Mao at [39], [40].
Mao at [39].
Mao at [39].
Mao at [40].
Mao at [40].
Mao at [48].
See Mao at [55].
[2011] NSWSC 1056.
At [7].
(2009) 25 VR 160; [2009] VSC 423; [2009] VSC 596.
At [26]; see also Murphy v Doman (2003) 58 NSWLR 51 at 58; [2003] NSWCA 249.
At [26].
At [27].
At [28].
At [32].
At [33].
At [34].
At [52].
At [8]-[12].

Amendments 11 June 2021 - A v A [2015] NSWSC 1778 added to cases cited on coversheet. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 June 2021

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Cases Cited (9)