Xardia v Commissioner of Taxation & Commissioner of NSW Police; Xardia v Department of Defence

Plaintiff's first filed claim

1. On 12 January 2016, the plaintiff filed proceedings numbered 2016/10595, naming the Commissioner of Taxation and NSW Commissioner of Police as defendants. The claimed cause of action is not clear from that document.
2. In those proceedings, the plaintiff's handwritten claim for relief states: "No federal witness protection advised or offered - no financial deal given over destruction of my existence instead disciplined and forced to terminate employ and career to wilfully destruct all future goals in life." The handwritten pleaded particulars of claim stated: "Wilfully endangered life and limbs forever."
3. The defendants' notice of motion in the first of the plaintiff's proceedings was filed on 17 March 2017. In support of that motion, the defendants rely upon the evidence contained in the affidavit of their solicitor, Jason Randall Noakes, affirmed on 18 March 2016. That affidavit was read without objection.

Plaintiff's second filed claim

1. On 18 February 2016, the plaintiff filed separate proceedings numbered 2016/52912, naming the Department of Defence as defendant. The claimed cause of action is not clear from that document.
2. In those proceedings, the plaintiff's handwritten claim for relief stated: "Forced molestation cadets refusing direct orders 1980." The handwritten pleaded particulars of claim stated: "17/5/82 1. Failed to give medical assistance head injury and body injured after accident. Forced to smoke cigarettes. 2. Fighting in the street 1981."
3. The defendant's notice of motion in the second of the plaintiff's proceedings was filed on 21 April 2016. In support of that motion, the defendants rely upon the evidence contained in the affidavit of their solicitor, Jason Randall Noakes, affirmed on 28 April 2016. That affidavit was also read without objection.

Plaintiff's attempts to obtain legal assistance

1. Correspondence tendered in the motions shows that the defendants in these proceedings have suggested to the plaintiff that she seek legal assistance. In that regard, the solicitors for the defendants have provided her with contact details for Legal Aid NSW and the Redfern Legal Centre. The plaintiff has indicated those organisations, the Aboriginal Legal Service, and the Law Society pro bono scheme, have informed her they could not assist with her claims. During the adjournment of the proceedings over the course of the last weekend, the plaintiff has been unable to secure legal assistance.

Emergent question

1. The key question which has emerged in these motions is whether the plaintiff has the requisite legal capacity to initiate and maintain these proceedings because real doubt has arisen as to whether that is the case.
2. In the context of these motions seeking to either dismiss or strike out the plaintiff's proceedings, it would be procedurally unfair to the plaintiff to finally hear and to then determine the matters without a resolution of the question of the plaintiff's legal capacity.

Resolution of the question

1. There is power for the court to appoint an expert to provide an opinion on a matter calling for expert opinion. In that regard, r 31.46(1) of the Uniform Civil Procedure Rules 2005 provides: "31.46 Selection and appointment (1) If an issue for an expert arises in any proceedings the court may, at any stage of the proceedings: (a) appoint an expert to inquire into and report on the issue, and (b) authorise the expert to inquire into and report on any facts relevant to the inquiry, and (c) direct the expert to make a further or supplemental report or inquiry and report, and (d) give such instructions (including instructions concerning any examination, inspection, experiment or test) as the court thinks fit relating to any inquiry or report of the expert or give directions concerning the giving of such instructions."
2. Pursuant to that rule, I consider that the emergent question posed in paragraph [17] above needs to be resolved through an examination by a consultant forensic psychiatrist.
3. The names of three consultant forensic psychiatrists were suggested for that purpose. After discussion with all the parties, it was agreed that of the three practitioners, Dr Bruce Westmore should be approached to examine the plaintiff and to provide a report setting out his opinion on that question.
4. The matters were stood in the list so that the necessary arrangements could be made, including obtaining the consent of Dr Westmore to that course. For administrative convenience, the solicitor for the defendants made the necessary arrangements, and the plaintiff has agreed to those arrangements. This will require an adjournment of the hearing of the motions until after Dr Westmore has reported.
5. A discussion arose as to who should pay for the examination and report by Dr Westmore. The plaintiff, a disability support pensioner, who has very little in the way of financial means, was concerned to pay her share of the costs involved in the interests of avoiding the potential for bias to occur. Whilst there is no suggestion that the process would involve bias, in the interests of transparency, I propose to give effect to the plaintiff's wishes in that regard.

Orders

1. I make the following orders: 1. The notices of motion respectively filed by the defendants on 12 January 2016 and 18 February 2016 are stood over for directions to 10.00am on Friday 12 August 2016, at which time a date will be fixed for the resumption of the hearings; 2. I dispense with the requirement for the filing of documents for a motion seeking an order for medical examination of the plaintiff pursuant to UCPR R 31.46(1); 3. I order the plaintiff to make herself available for a medical examination by Dr Bruce Westmore at 183 Macquarie Street, Sydney NSW, at 9.00am on 23 June 2016, and to co-operate with Dr Westmore in that process; 4. The solicitor for the defendants is to prepare a draft letter to Dr Westmore, for the Court's approval, in non-contentious terms, identifying the question for report and confirming the appointment the subject of order (1) and enclosing by way of background: 1. A copy of these reasons; 2. A copy of Exhibit "B"; 3. A copy of the following decisions: 1. Xardia v Military Rehabilitation & Compensation Commission [2010] AATA 621; 2. Xardia v Comcare [2014] AATA 487 3. Xardia v Comcare [2015] FCA 98; 1. The Registrar will settle the terms of the letter the subject of order (4) for forwarding to Dr Westmore; 2. The parties are to equally contribute to the cost of Dr Westmore's report, namely 25 per cent by the plaintiff and 75 per cent shared by the three defendants; 3. Costs of the hearings of these motions on 29 April 2016 and 2 May 2016 are reserved.

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: 02 May 2016