Zioukin v Frank Bellissimo trading as Bellissimo Lawyers and Studio Legale

Solicitors: Plaintiff: Di Lizio & Associates (Notice of Removal of Solicitor filed after the hearing of the notices of motion) Defendant: Yeldham Price O'Brien Lusk File Number(s): 2020/229524 Publication restriction: None

Judgment

1. Before the Court are two Notices of Motion. The first filed is that of the defendant of 3 March 2023. It was amended on 16 August 2023 to seek orders as follows: 1. Pursuant to r 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. 2. In the alternative to order 1, pursuant to r 23.9(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. 3. The Plaintiff is to pay the Defendant's costs of the proceedings including all reserved costs and the costs of the Notice of Motion filed on 3 March 2023 and this Amended Notice of Motion.
2. The second Notice of Motion was filed by the plaintiff on 13 April 2023, and sought orders as follows: 1. That the Motion filed by the Defendant on 3 March 2023 be dismissed with costs. 2. That the consent order made on 28 June 2022 be vacated. 3. That the consent order made on 24 August 2022 be vacated. 4. That the Defendant pay the costs associated with the hearing of the Plaintiff's motion filed 13 April 2023.
3. The Notices of Motion were listed for hearing on 12 October 2023. In the circumstances to which reference will shortly be made, whilst the oral hearing of the competing Notices of Motion concluded on that day, the Court made orders to facilitate the receipt of further written submissions.
4. The defendant filed a Court Book on 9 October 2023. Behind 24 tabs the Court Book contained the Notices of Motion identified above and the plaintiff's Statement of Claim filed 6 August 2020. The Court Book contained Affidavits of the plaintiff of 13 April 2023 and 20 April 2023 and of his then solicitor, Rocco Michael Ardino, of 20 April 2023. There was also a draft Affidavit of Mr Ardino dated 12 October 2023. A number of Affidavits sworn by the defendant's solicitor were included in the Court Book, together with transcripts of interlocutory proceedings before a number of Judges of the Court. A summary of the procedural history of the plaintiff's claim and the competing Notices of Motion follows.
5. On 3 October 2023 the plaintiff filed a number of emails and medical certificates, which the defendant tendered on 12 October 2023 (Exhibit D1). The plaintiff also swore an Affidavit on 12 October 2023. The defendant filed a written outline of submissions on 11 October 2023 and, pursuant to directions made on 12 October 2023 filed short further submissions on 24 October 2023.

Procedural history

1. To provide context to the orders sought by the plaintiff, it is appropriate to set out the orders of 28 June 2022 and 24 August 2022 in their entirety.
2. The 28 June 2022 consent orders provided as follows: "1. Within 7 days, the solicitor for the plaintiff, or the plaintiff, notify the defendant's solicitor of a qualified psychiatrist that he proposes to attend for examination for the purposes of these orders. 2. Direct the plaintiff to provide that psychiatrist with a copy of the Affidavit of Sanjay Selvakumaran dated 27 June 2022, and a copy of, or a note of, these orders. 3. By 11 August 2022, the plaintiff file and serve an Affidavit from a qualified psychiatrist attesting to the plaintiff's capacity to give instructions in these proceedings, and the fact that he does not need a tutor. 4. List the matter, for the purposes of determining the question of whether or not the plaintiff has capacity, on 26 August 2022 with an estimate of half a day. 5. Note that these orders do not prevent the plaintiff from appointing a tutor, if so advised. 6. Dispense with any requirement for the filing of a Notice of Motion to determine the issue referred to in paragraph 4 above. 7. Order that, apart from the matters set out in these orders, the proceedings are stayed until either: (a) the plaintiff appoints a tutor; (b) the Court determines that the plaintiff has capacity; or (c) further order of the Court. 8. Reserve the question of costs, and all questions of costs previously reserved in the proceedings, to the determination of the matters set out in paragraph 4."
3. The 24 August 2022 consent orders provided as follows under the heading "Terms of Order": "The Court notes: 1. The plaintiff has not served any Affidavit from a qualified psychiatrist as required by Order 3 made on 28 June 2022. 2. Pursuant to Order 7 made on 28 June 2022, the proceedings are stayed until either: 2.1. the plaintiff appoints a tutor; 2.2. the Court determines that the plaintiff has capacity; or 2.3. further order of the Court. The Court orders: 3. The hearing on 26 August 2022 is vacated. 4. All questions of costs including all questions of costs previously reserved in the proceedings are reserved until further order of the Court."
4. Although neither party expressly sought the lifting of orders staying the proceedings on terms which the Court has previously made, the plaintiff clearly sought to have set aside the orders requiring him to attend upon a qualified psychiatrist for the purpose of the preparation of a report with respect to the plaintiff's capacity to give instructions in the proceedings. Similarly, the defendant's application for dismissal of the plaintiff's Statement of Claim required the stay to be lifted. The Court does not consider that the current stay orders prevent either party securing the relief which that party seeks. As interlocutory procedural orders, they are able to be varied or set aside if doing so is in the interests of justice. Notation 2.3 of the notations recorded on 28 June 2022 provided for that eventuality.

Self-representation of the plaintiff

1. At the time the plaintiff's Notice of Motion was filed, and prior to the hearing of the competing Notices of Motion on 12 October 2023, the plaintiff was represented by Mr Ardino. At the hearing on 12 October 2023 the plaintiff confirmed that he did not wish to retain Mr Ardino as his solicitor. Mr Ardino offered to represent the plaintiff amicus curiae at the hearing on 12 October 2023. The plaintiff rejected Mr Ardino's offer. The plaintiff represented himself before the Court on 12 October 2023, albeit his oral submissions at the hearing were limited.
2. Senior Counsel for the defendant relied upon his outline written submissions filed 11 October 2023. The plaintiff expressed his concern at that course. The Court explained to the plaintiff that it would have been open to Senior Counsel for the defendant to have not made his outline of submissions available prior to the hearing on 12 October 2023, and to have simply read them during the hearing. Nevertheless, and without serious opposition from the defendant, the Court ordered that the plaintiff have leave to file written submissions not exceeding 15 pages in length (the length of the written submissions relied upon by the defendant) by 27 October 2023.
3. The plaintiff filed a notice of removal of solicitor on 25 October 2023 formally terminating Mr Ardino's retainer.
4. On 25 October 2023 the plaintiff contacted the Registry and suggested, correctly, that the Court's sealed orders erroneously referred to the date for filing of his submissions as 24 October 2023 when it should have been 27 October 2023. On 26 October 2023 the Court confirmed the plaintiff's understanding of the Court's orders and amended the order to provide for written submissions to be filed on or before 27 October 2023.
5. On 5 November 2023 the defendant's solicitor emailed the Court, a copy of the email being sent to the plaintiff, pointing out that as no submissions had been received from the plaintiff the defendant would not be filing submissions in reply.
6. On 6 November 2023 the plaintiff emailed the Registry, a copy of which was forwarded to the solicitor for the defendant, and said: "There's been some issues preparing the submissions and reply including those that were caused by unexpected developments since the orders were made. I will try to agree on something with the defendant shortly, and if we are not able to agree on any matters I will be putting notice of motion with supporting affidavit in order to assist in resolving this matters [sic]. I'm sorry for the delay in making contact about this. There were very good reasons why I was not able to deal with this earlier. I will be in contact providing further details shortly."
7. As part of my orders of 12 October 2023, the 27 November 2023 date was tentatively set for delivery of Judgment with respect to the competing Notices of Motion. The parties were subsequently advised that Judgment would be delivered on 4 December 2023.
8. The plaintiff has filed no submissions, either in accordance with the Court's directions or otherwise. The plaintiff has not provided any evidence of attempts to "agree on something with the defendant". The plaintiff has not filed a Notice of Motion seeking an extension of time to file submissions. As will be seen, the plaintiff's inactivity is consistent with his failure to prosecute his Statement of Claim, or comply with procedural orders of the Court.

History of proceedings prior to the present Notices of Motion

1. These proceedings have a protracted history of the Court making orders concerning the appointment of a tutor for the plaintiff, the making of orders for the plaintiff to consult a qualified psychiatrist and repeated failures for that to occur. I have summarised these events from the procedure history and Court orders as they appear on JusticeLink as follows: 1. On 1 May 2022, a Consent to Act as Tutor was filed on JusticeLink, naming Ms Radka Alexandrova as the tutor for the plaintiff. An affidavit accompanying an application to appoint a tutor was filed by the plaintiff's previous solicitor on 2 May 2022. 2. On 3 May 2022, her Honour Acting Judge Balla made a notation that "I was informed by Mr Ardino as the plaintiff's solicitor in 2020/229524 that it is his intention during the 28 day adjournment to assist the plaintiff in 2019/171369 in having a tutor appointed and obtaining pro bono assistance." It is to be noted that the 2019/171369 proceedings are separate proceedings to these proceedings. 3. On 28 June 2022, his Honour Judge Hatzistergos made consent directions for the plaintiff to notify the defendant of a qualified psychiatrist that he proposes to attend for examination, and for the plaintiff to file and serve an affidavit from the qualified psychiatrist to attest to the plaintiff's capacity by 11 August 2022. The plaintiff was legally represented at the time. A listing on 26 August 2022 was allocated for the purposes of determining whether the plaintiff has capacity. Further, the proceedings are stayed until the occurrence of either of the following events (see Order 7 of the Consent Orders of 28 June 2022): 1. The plaintiff appoints a tutor; 2. The Court determines that the plaintiff has capacity; or 3. Further order of the Court. 1. On 24 August 2022, his Honour Judge Dicker SC made consent orders vacating the 26 August 2022, noting that the plaintiff has not served any affidavit from a qualified psychiatrist. Once again, Order 7 of the Consent Orders of 28 June 2022 were noted. 2. On 29 November 2022, his Honour Judge Wilson SC made notations to the effect that the plaintiff has failed to attend two appointments before a qualified psychiatrist, and that an appointment on 10 February 2023 was foreshadowed to take place. His Honour also noted that the plaintiff's position was that "the issue of capacity does not need to be resolved and is not necessary", and that the defendant "disagree and maintain the Plaintiff is to attend a psychiatrist for evaluation before the matter proceeds." In his Honour's orders, Judge Wilson SC required, inter alias, the plaintiff to file and serve an affidavit explaining his failure to comply with orders of the Court on or before December 2022, and that the plaintiff is to serve the medical report on or before 2pm, Friday 3 March 2023. 3. On 3 March 2023, the defendant filed a Notice of Motion seeking to dismiss proceedings pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW). 4. On 6 March 2023, his Honour Judge Dicker SC directed the defendants to file and serve any affidavits in support of its Notice of Motion filed on 3 March 2023, and directed the plaintiff to file and serve any responsive affidavits and any notice of motion and accompanying affidavit in support by 5:00pm, 12 April 2023. His Honour listed the matter for further directions on 13 April 2023, noting that: "The plaintiff is in breach of a number of orders. He seeks to have the stay in place lifted. The defendant seeks to have the proceedings dismissed." 1. On 13 April 2023, the plaintiff's previous solicitor filed a notice of motion seeking the dismissal of the defendant's notice of motion filed on 3 March 2023 (i.e. the defendant's motion to dismiss proceedings pursuant to r 12.7), and orders to vacate the 28 June 2022 and 24 August 2022 consent orders (i.e. in substance, vacating, inter alia, the order staying proceedings). 2. On 13 April 2023, his Honour Judge Wilson SC listed both the plaintiff's and the defendant's notices of motion for hearing on 4 May 2023. 3. On 4 May 2023, his Honour Judge Weber SC made orders for the plaintiff to file and serve any further affidavits which he intends to rely upon relating to either notice of motion on or before 2 June 2023, and standing these proceedings before the Judicial Registrar on 8 June 2023. 4. On 7 June 2023, Judicial Registrar Howard listed the defendant's 3 March 2023 notice of motion seeking a dismissal under r 12.7 for hearing on 19 July 2023. 5. On 19 July 2023, his Honour Judge Weber SC made the following notations and orders: "The Court notes: (1) The plaintiff has agreed that he is available to attend an appointment with Dr Alex Apler, psychiatrist, on 8 August 2023 at 2 pm. (2) The plaintiff has agreed that the appointment will include an assessment of the plaintiff's capacity to conduct this litigation without a tutor. The Court orders: (1) Pursuant to UCPR 23.4(1), the plaintiff is directed to attend an appointment with Dr Alex Apler, psychiatrist, on 8 August 2023 at 2 pm. (2) The Defendant's Notice of Motion filed on 3 March 2023 is stood over until 16 August 2023 for directions. (3) All questions of costs including all questions of costs previously reserved in the proceedings are reserved until 16 August 2023. (4) Liberty to restore on 3 days' written notice." 1. On 16 August 2023, the defendant filed an Amended Notice of Motion in Court pursuant to leave granted by his Honour Judge Dicker SC sitting as the List Judge. In addition to seeking summary dismissal under r 12.7, the defendant alternatively seeks a dismissal pursuant to r 23.9(1)(a) of the UCPR. On 16 August 2023, his Honour Judge Dicker SC made the following orders: "The Court orders: 1. Any Notice of Motion seeking orders for the appointment of a tutor is to be filed and served by 4.00 pm on Friday, 18 August 2023. 2. The Defendant's Amended Notice of Motion dated 15 [sic] August 2023, Notice of Motion filed on 3 March 2023 and the plaintiff's motion filed 13 April 2023 are listed for hearing on 12 October 2023 with an estimate of 1 day. 3. Any Notice of Motion filed in accordance with Order (1) above is listed for hearing on 12 October 2023. 4. All questions of costs including all questions of costs previously reserved in the proceedings are reserved until 12 October 2023. 5. Liberty to restore on 3 business days' written notice. 6. The defendant is to file and serve a Court Book for the hearings of the Notices of Motion by 5pm on 9 October 2023." 1. On 3 October 2023, his Honour Judge Wilson SC made the following orders: "1. Plaintiff's solicitor to serve upon Solicitor for Defendant copy of his clients email to Civil Registry of Thursday 28 September 2023 at 11:58pm, no later than Friday 6 October 2023; 2. in the event that the solicitor for the Plaintiff wishes to file a Notice of Motion or rely upon evidence in relation to the Defendant's Notice of Motion, to be filed and served no later than 4pm Friday 6 October 2023; 3. confirm listing of Defendant's Notice of motion filed 16 August 2023 on 12 October 2023; 4. give the matter a listing of midday on the basis that the parties agree that the motion can be dealt with in the time remaining that day. The court will sit between 12pm-1pm and 2pm-4pm unless otherwise directed; 5. the Defendant's costs of today to be paid by the Plaintiff."

At the hearing

1. As recorded earlier, the plaintiff represented himself on 12 October 2023.
2. In Jeray v Blue Mountains City Council (No 2) [2010] NSWCA 367, Allsop P observed at [5]-[6]: "5 The provision of procedural fairness is the legal expression of an essential attribute of the judicial process. The phrase "procedural fairness" has come to replace in currency the older expression, "natural justice", in part because the former expression, that is "procedural fairness", shears away a penumbra of meaning and connotation from the adjective "natural". Yet both expressions use synonyms, "justice" and "fairness". These considerations of justice and fairness are immanent within the law and its fabric of substantive principle and procedure. 6 At the root of procedural fairness is the provision of a fair hearing to a litigant and the basal notion that the litigant has understood the proceedings before him or her and has had an adequate opportunity given to him or her, considering his or her attributes, qualities and deficiencies which render the litigant more or less able to vindicate his or her rights in court. A sharp line between rules and consequences cannot be drawn in this respect. Analogies of the rules of the game and how the game is played may be helpful at one level, but ultimately each circumstance has to be analysed and evaluated to see whether, in a human context, a fair hearing has been provided."
3. His Honour continued at [10]-[11]: "10 The balance of fairness, procedural rigour and wise and practical indulgence in managing litigation by a judge is no simple task. Too indulgent an attitude to a litigant in person will unfairly burden the other side. An absence of proper regard for the needs of the litigant in person may cause injustice. 11 The balance can be a fine one. Sometimes the difference is one of evaluative assessment about which minds can differ. Though the ultimate question of whether a tribunal has afforded procedural fairness is a judgment of the satisfaction of an essential legal and Constitutional standard, it is decided principally by reference to a factual evaluation of a normative consideration of fairness in the judicial process. It is unnecessary to consider further any philosophical or legal consideration as to the character of the judgment or evaluation involved."
4. The Court has endeavoured to maintain the "balance" to which Allsop P referred, and is satisfied that the plaintiff has been afforded procedural fairness with respect to the hearing of the competing Notices of Motion. To delay finalising them would be contrary to the requirements of s 56 of the Civil Procedure Act 2005 (NSW) and a denial of natural justice to the defendant in the circumstances of the case. There is no reason to think that delaying the determination of the Notices of Motion would achieve anything other than further delay.
5. The hearing of the Notices of Motion was fixed for 12 p.m. on 12 October 2023 to accommodate the plaintiff's stated need for a later than usual hearing time.

The plaintiff's Notice of Motion to set aside the orders for psychiatric examination and report

1. It is appropriate to deal first with this Notice of Motion. Ironically, if the plaintiff succeeds with his Notice of Motion, the prospects of success of the defendant's Motion for dismissal of his Statement of Claim are enhanced. Conversely, if the plaintiff's Notice of Motion is unsuccessful, a major basis on which the Court would be reluctant to dismiss his Statement of Claim remains.
2. In oral submissions, the plaintiff relied significantly on his asserted successful conduct of proceedings before her Honour Judge Gibson and her Honour Judge Strathdee subsequent to the making of the orders for psychiatric assessment of him. The Court knows little of the circumstances surrounding the hearing of those proceedings and, as Senior Counsel for the defendant submitted, any findings of fact made in those proceedings would not be evidence of the plaintiff's capacity in the present proceedings.
3. Although the plaintiff did not indicate that he relied upon his Affidavit of 13 April 2023, the plaintiff did not suggest that he did not continue to rely upon that Affidavit. The plaintiff there set out a history of his symptoms and annexed Medical Certificates from Dr Geoffrey Au of 14 June 2022 and 15 September 2022. Dr Au, who appears to be a General Practitioner, certified on 14 June 2022 that the plaintiff was "suffering from severe acute medical condition since 2021 (viral illness, bereavement, spinal pain plus an acute housing crisis) which impaired his capacity during that period. Currently his capacity has improved and he now has capacity to make decisions in the court cases. However, he still requires some adjustments as previously described in my previous certificates including extra time to comply with court orders". Dr Au's Certificate of 15 September 2022 repeated the terms of his previous report and added "failure to provide these adjustments are likely to effect [sic] his capacity at the present moment".
4. The plaintiff also annexed to his Affidavit a Certificate from Dr Ali Pierzad, who appears to be a General Practitioner, of 19 February 2023 in which it was stated that the plaintiff had been seen at the surgery on 12 February 2023 and 19 February 2023 and "also had 10 visits in person in our medical centres in 2022 and previous dates in 2021. He has chronic back pain has history of depression, anxiety and PTSD, and had exacerbation of symptoms due to bereavement and housing issues. He is feeling better at present and he is able to focus better on his studies. He still requires reasonable adjustments. I support reasonable adjustments for his exams and tribunal and court hearings to be conducted in the afternoon. I also support adjustment of extra time of 2 days for every 3 days (as additional time to prepare his submissions and evidence) and longer notice of hearing dates. This opinion is based on patient's history and patient examinations and specialists' reports". One way or another, the plaintiff has had a month longer than the directions to which he agreed on 12 October 2023 provided in which to file his submissions.
5. The plaintiff referred in his Affidavit to a Medical Certificate issued by Dr Geoffrey Ng of St George Hospital ED dated 2nd May 2022 certifying that the plaintiff was "unfit for work" from 2 May 2022 to 4 May 2022 and stating "he will be unable to represent himself as he needs to isolate as he is currently symptomatic with flu like symptoms". The plaintiff also relied on a Discharge Summary from St George Hospital ED dated 29 April 2022 which recorded that the plaintiff had presented with "acute on chronic back pain with nil trauma" details of which were then provided. Nothing there recorded referred to any but physical symptoms presented by the plaintiff.
6. By reference to Mr Ardino's Affidavit of 2 May 2022, a copy of which was annexed to the plaintiff's Affidavit, the plaintiff explained how he came to give instructions on or about 28 April 2022 to proceed with the appointment of a tutor, in the course of which the plaintiff referred to having become "extremely overwhelmed and felt I could not cope generally and in particular I felt I was not coping with the legal system and for this reason I felt it best that a tutor be appointed to assist me". The plaintiff made a number of comments with respect to the reports of his treating Psychiatrist, Associate Professor Anthony Richardson of the St Vincent's Hospital Pain Clinic, who he said "monitors my chronic pain condition and variations in my cognitive impairment on about three (3) times per annum when he examines me".
7. The balance of the Affidavit consisted of submissions and, at [14], reference to the proceedings determined by her Honour Judge Gibson on or about 23 September 2022 and [15] that "I currently enjoy reasonably good health apart from my underlying chronic pain condition and intermittent sleep disturbance and I do not have any other conflicting and stressful situations and legal proceedings as I did previously and having to defend eviction proceedings and in having a completely other set of District Court proceedings which were still on foot at that time".
8. The plaintiff asserted that if the Court "would allow me to conduct this litigation without the need for a tutor then I believe I would be most capable of instructing my legal team and understanding legal advice provided I am given such appropriate time adjustments as my medical needs require. At this time, I do not believe that such adjustments would be very great other than being allowed to commence about an hour later in the mornings when I am feeling unwell." The plaintiff stated that he was allowed such indulgence by her Honour Judge Strathdee in the substantive hearing of the "Hastings Deering case" which commenced on 28 September 2023.
9. The plaintiff submitted [16] that he "ultimately represented myself" before Judge Strathdee for reasons which do not assume significance for present purposes. The plaintiff alleged that the matter "proceeded and I represented myself during the first two days of hearing and I was capable of settling the matter myself with the defendant's solicitors on the morning of the third day". The Court has not seen the transcripts of the proceedings to which the plaintiff referred.
10. The plaintiff said [18] with respect to the Consent Orders made on 28 June 2022 and 24 August 2023 that he would "explain by way of separate affidavit" prior to the hearing of the competing Motions his explanation for such non-compliance. The plaintiff subsequently filed affidavits explaining why he did not keep three medical appointments which had been made for him.
11. The plaintiff reiterated [19] his request that the Court "allow me to conduct these proceedings without having to undergo a mental capacity assessment by a psychiatrist for the reason that the periods of temporary cognitive impairment which I do experience and concede to from time to time should not prevent me from being treated as having full mental capacity at other times when I am not so affected".
12. The plaintiff stated [21] his intention to rely upon the evidence of Mr Ardino in support of his Motion. Mr Ardino swore an Affidavit on 20 April 2023. Having regard to the plaintiff's evidence in October 2023, in which he expressed his disappointment with Mr Ardino's representation of him, and his rejection of Mr Ardino's offer to assist him amicus curiae on 12 October 2023, the Court has regard only to those parts of Mr Ardino's evidence which may assist the plaintiff's case. In his Affidavit of 19 April 2023 Mr Ardino referred [5] to the Hastings Deering proceedings. Apart from hearsay or unqualified opinion evidence, Mr Ardino's Affidavit did not materially assist the plaintiff's case.
13. In his Affidavit of 18 April 2023 the plaintiff explained why he did not attend the psychiatric examinations scheduled with Dr Ahmed Tanveer on 9 September 2022. In short, the plaintiff had a university examination at that time. It was not unreasonable for him to prefer to undertake his university examination to attending the psychiatric examination. The plaintiff failed to attend the scheduled psychiatric examination with Dr Sergiou Grama on 2 November 2022 at 2.00 p.m. as a result of a hearing in the Civil and Administrative Tribunal at 1.15 p.m. that day. The appointment with Dr Grama was made on 13 September 2022. The plaintiff was informed of the NCAT listing on 11 October 2022. His cancellation of the appointment with Dr Grama on 27 October 2022 was not unreasonable in the circumstances.
14. On 16 November 2022 a third appointment for psychiatric examination was made, this with Dr Ahmed Tanveer, on 10 February 2023. The plaintiff cancelled the examination "for the very reason that by this date I had already formed the belief that it was not necessary for me to undergo a capacity assessment because it was not required as I only lacked capacity on a temporary basis when I have not slept well continuously for a number of nights due to my chronic pain condition and it took me 2 or 3 hours in the morning after waking up to regain my full cognition" [3(c)]. The plaintiff referred in his Affidavit to a "medicolegal report" of 11 May 2021 which predated the Consent Orders by a year. The plaintiff's cancellation of the appointment with Dr Tanveer on 16 November 2022 was unreasonable in the circumstances.
15. The plaintiff did not explain why he did not keep the appointment with Dr Alper on 8 August 2023. It can reasonably be inferred that he did not do so for the reason he did attend the 16 November 2022 appointment.
16. On 3 October 2023 (D1) the plaintiff set out a number of matters relating to the time for commencement of the hearing of proceedings of 12 October 2023. Nothing referred to in his email of 28 September 2023 in relation to that request assumes significance for present purposes. The email attached further copies of the medical reports to which the Court has previously referred, and included a Certificate from Dr Au of 13 October 2021. The other emails attached to the Affidavit do not assume significance beyond that to which the Court has referred in its review of the procedural history of the proceedings.
17. In his Affidavit of 12 October 2023 the plaintiff set out in detail the history of his representation by Mr Ardino and his disappointment with what he perceived to be the standard of representation which he had received. The Affidavit does not assume significance in the proceedings. Apart from being unverified, Mr Ardino's draft Affidavit of 12 October 2023 could not assist the plaintiff's case. The plaintiff having terminated Mr Ardino's retainer, it would be unfair to have regard to the draft Affidavit in any event.

The parties' submissions

1. The defendant identified [21(a)] as a question for determination whether "before the proceedings can continue, is it necessary for the plaintiff to attend upon a psychiatrist for an assessment of his capacity to conduct the litigation without a tutor?" The defendant submitted [23], correctly in the Court's view, that "determination of the first question does not require this Court to embark upon an enquiry as to the plaintiff's capacity; the Court need only be satisfied that there is a real question about the plaintiff's capacity such that medical opinion on the issue is required".
2. The defendant submitted [30] that "the plaintiff advances two related arguments as to why the stay should be lifted. First, the plaintiff provides a self-assessment which concludes his medical condition has improved since suffering from "temporary cognitive impairment" in April, May and June 2022. Second, the plaintiff asserts that his "regained mental capacity should be inferred from the absence of adverse comment made by other Judges of this Court". The crux of the defendant's contentions was [31] that "there remains sufficient doubt about the plaintiff's capacity such that the stay should not be lifted, and the plaintiff's application should be dismissed with costs".
3. The defendant relied [32] upon a number of the matters alleged by the plaintiff in his Affidavit of 13 April 2023 to which the Court has earlier referred. The defendant submitted [33] that the plaintiff's own evidence "points squarely to a continuing state of affairs which could adversely affect the plaintiff's cognition". It was further submitted that there was "no evidence, medical or otherwise, that the chronic pain or sleep disturbance from which the plaintiff admittedly suffers has resolved or abated. That being so, the significant risk of cognitive impairment consequent upon stress, sleep disturbance or pain remains without amelioration or mitigation".
4. It was also submitted [34] that it "does not fall to the defendant to positively prove that the plaintiff lacks capacity" and that the "doubt on that issue" is sufficient to dismiss the plaintiff's Motion, the medical evidence before the Court being asserted to raise "significant doubt about the plaintiff's capacity effectively to give instructions and conduct litigation". The defendant supported those contentions by reference to the history recorded in the defendant's solicitor's Affidavit of 27 June 2022 at [35].
5. The defendant made submissions with respect to the withdrawal of consent to act as tutor which was filed in June 2023 [36]. The Court does not know why the plaintiff's tutor withdrew, and does not perceive that speculation about that is necessary or instructive for present purposes. There are potentially two aspects of that issue, the second, the appointment of a tutor, only arising if it is found that the plaintiff's lack capacity.
6. The asserted "significant tension arising from the available medical evidence" [37] identified by the defendant was submitted to create a significant obstacle to the success of the plaintiff's Motion. It was submitted [38] that the "best assessment the Court is left with" is that of Associate Professor Richardson of 25 March 2022 in which he observed that the plaintiff was "clearly having cognitive processing difficulties and expressed the opinion that the plaintiff's slow decline in functioning presents likely future risks". Criticisms were made of the reports from general practitioners upon which the plaintiff relied.
7. It was submitted [43] that the plaintiff's reliance upon asserted findings made by her Honour Judge Gibson with respect to the adjournment application in the Hastings Deering case on 26 September 2022 did not assist the plaintiff, for the reasons there set out. The Court agrees with the contention of the defendant [44] that nothing in her Honour's decision prevents the Court from dealing with and rejecting the plaintiff's current Motion. Reliance for that contention was placed upon a number of matters which emerged from the transcript of the proceedings before her Honour Judge Strathdee which commenced on 28 September 2022. Those matters militate against accepting that the plaintiff has capacity and that the orders for psychiatric examination should be set aside.

Consideration

1. The plaintiff bears the onus of persuading the Court that the orders of 28 June 2022 to which he consented, whilst legally represented, should be set aside.
2. The Court is not persuaded that there is not a real issue with respect to the plaintiff's capacity to give instructions and otherwise conduct the substantive proceedings without the appointment of a tutor. Until that issue is resolved, if the proceedings are not dismissed as sought by the defendant, the utility of any outcome in the proceedings is problematic. If the Court does not make a finding that the plaintiff has, or lacks capacity, it is difficult to see how that would provide any comfort for either party or the Court. It is unthinkable that the current uncertainty should continue any longer than can be avoided and contrary to the spirit and terms of the Civil Procedure Act 2005 (NSW). The last medical evidence on which the plaintiff relies is now antiquated and, as the defendant submitted, not the evidence of an expert in psychiatry in any event. The Court is not persuaded that anything which happened or did not happen in other proceedings which were before Judge Gibson or Judge Strathdee assists the plaintiff's Motion.
3. In Rappard v Williams [2013] NSWSC 1279, Hallen J recorded at [76] that "Whether a person is under a legal capacity is always a task, and time specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time (Guthrie v Spence [2009] NSWCA 369 (2009) 78 NSWLR 225; Azar v Kathirgamalingan [2012] NSWCA 429)". His Honour further recorded that whether the plaintiff in the case was under a legal incapacity in relation to the conduct of legal proceedings must be considered against the background that "even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings" and thus fall within the definition of a "person under legal incapacity". His Honour referred at [77] by reference to the English decision of Masterman-Lister v Brutton & Co [2003] EWCA CIV 1889; [2003] 1 WLR 1511; [2003] All ER 162 that the test to be applied was "whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings". Hallen J stated [78] that the expression "conduct of legal proceedings" referred to "doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice and engaging in the continuing process of cooperation, interaction and decision making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceedings." His Honour relied upon the Judgment of Dixon J in Pistorino v Connell [2012] VSC 438 at [21]-[24] in support of those observations.
4. In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193 the Court accepted that the question of capacity to understand the issues in legal proceedings in order to be able to conduct them was "issue specific" and "relates to the facts and subject matter of the particular case". It is also relevant that clarification of the plaintiff's capacity provides protection to the defendant as to costs (NSW Insurance Ministerial Corp v Abualfoul [1999] 94 FCR 247), and also protects the plaintiff in the event that he has a viable cause of action.
5. As the authorities make clear, determining capacity to conduct legal proceedings is not necessarily simple or straightforward. The evidence in this case suggests that determining the plaintiff's present capacity "go either way". The most recent medical evidence, albeit of a general practitioner, is nine months old. Quite apart from the private interest of the parties in not engaging in a potentially complex substantive hearing the determination of which may be vitiated by the incapacity of the plaintiff, there is a public interest in Court resources not being used in such circumstances (see Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; [2009] HCA 27 at [5]).
6. For the foregoing reasons, the plaintiff's Motion is refused.

The defendant's Motion for summary dismissal of the plaintiff's Statement of Claim for want of due dispatch

1. In support of his claim the defendant relied upon the history of the proceedings and the persistent failure of the plaintiff to do anything to advance his claim. The defendant relied on the plaintiff having allegedly "steadfastly refused to comply, for almost one year, with the directions made on 28 June 2022 (to which he consented) to undergo a capacity assessment or appoint a tutor" which was submitted to have occurred against the background of "the preceding two years of delay and non-compliance" [48]. The plaintiff has not raised any matter which causes the Court doubt about those matters; the record of the proceedings speaks for itself.
2. The defendant relied on the plaintiff's failure to attend medical appointments on 9 September 2022, 2 November 2022, 10 February 2023 and 8 August 2023. As recorded earlier, it was not unreasonable that the plaintiff did not keep the first two of the four appointments. The plaintiff offered no explanation for his failure to attend the most recent appointment. The plaintiff's failure to provide dates and invite the defendant to arrange a further appointment with any of the three psychiatrists with whom he had previously had appointments is significant.
3. The defendant acknowledged [51] that the dismissal of the plaintiff's Statement of Claim involved the exercise of discretion. It is submitted that the plaintiff's "demonstrated history of delay and non-compliance with Court orders means that no alternative to dismissal is available". It was further submitted that the Court could "take no comfort that any further indulgence would yield a result different to the stagnation that has plagued this case thus far". The history of the proceedings suggests that submission is likely to be correct. That however would not necessarily preclude making orders which, if it was a case of "more of the same", or, as the defendant submitted "enough is enough", the plaintiff's Statement of Claim would not be dismissed.
4. The defendant relied [51(a)] on the decision in Zioukin v Laing [2023] NSWCA 42 in which the Court of Appeal recorded that there were "limits to the extent which accommodation may be given to ameliorate Mr Zioukin's disabilities, and the Court must also be conscious of the burdens upon the parties against whom he has commenced proceedings". The defendant also relied upon the decision of the New Zealand High Court in Zioukin v Carson T/A Cars N Truck Holding [2017] NZHC 762 in which an appeal instituted by the plaintiff was struck out after a "protracted history of non-compliance" by the plaintiff with "timetabling requirements". Further reliance was placed upon the refusal by the Appeal Panel of the Civil and Administrative Tribunal to adjourn an appeal sought by the plaintiff on the basis that he had been given ample notice of the hearing and ample time to prepare his evidence (Zioukin v BE Commerce Pty Limited [2023] NSWCATAP 110).
5. The defendant submitted [52] that, in view of the provisions of ss 56 - 60 of the Civil Procedure Act 2005 (NSW), the Court should "no longer be as reluctant to exercise the power of summary dismissal absent intentional and continuance default on the part of a plaintiff, or inordinate or inexcusable delay (State of New South Wales v Plaintiff A [2012] NSWCA 248). In brief supplementary submissions, the defendant submitted [2] that dismissal was no longer seen as a "draconian" measure. The defendant referred to the decision in Reliance Financial Services v Griffiths & Anor [2010] NSWSC 1490 in which it was noted that "the delays and defaults have been prolonged, inordinate and inexcusable. They represent an undermining of the policy and principle that inform ss 56-61 of the CPA. They exemplify conduct that has a tendency to diminish public respect in the system of administration of justice under which we operate."
6. Reliance was also placed upon the decision of McCallum J (as McCallum CJ of the ACT Supreme Court then was) in Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 in which her Honour was prepared to dismiss proceedings for want of due dispatch, through orders that provided for an "automatic dismissal", notwithstanding that there was a live question about the plaintiff's capacity. As will be seen, the Court considers the approach taken by her Honour in that case to have particular relevance for present purposes. In Day v Woolworths Limited & Ors [2018] QSC 266 a permanent stay of the proceedings was granted.
7. Senior Counsel for the defendant emphasised that, as a legal practitioner, it was unfair to the defendant for the plaintiff to be allowed to maintain his Statement of Claim, but do nothing to prosecute it. There is limited merit in that submission (Lewandowski v Lovell (1994) 11 WAR 124). It was fairly acknowledged by Senior Counsel for the defendant that dismissal of the plaintiff's Statement of Claim could mean that some, or possibly all of the claim was statute barred. The Court is unable to make findings in that regard, and does not need to, it being sufficient to note that the defendant did not submit that dismissal of the plaintiff's Statement of Claim created no impediment to the plaintiff recommencing the proceedings.

Consideration

1. Rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) empowers the Court to dismiss the plaintiff's Statement of claim if he does not "prosecute the proceedings with due despatch", or make "such other order as the court thinks fit". The power is not confined by rigid guidelines (Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274). Although delay is the threshold circumstance that potentially enlivens the power, the significance of the delay depends on the particular circumstances of the case (Bishopsgate Insurance Australia (In liq) v Deloitte, Haskins and Sells [1999] 3 VR 863). The essential criterion for the exercise of the power is whether, in all the circumstances, justice requires that the proceedings be dismissed, which, in this case involves striking a balance between the plaintiff and the defendant (Hartigan v International Krishna Consciousness Inc [1999] NSWSC 57).
2. In Bi v Mourad [2010] NSWCA 17, a case in which four years had elapsed since the proceedings had commenced and nine years had elapsed since the relevant events occurred, the Court of Appeal dismissed the plaintiff's challenge to a decision of the Judicial Registrar dismissing the plaintiff's Statement of Claim. Young JA, with whom Allsop P and Sackville AJA agreed, said: "31 It must also be remembered these days that ss 56 - 60 of the Civil Procedure Act 2005 set up a regime that requires the courts to turn away reluctant gladiators and to ensure that they either prosecute their claims in due time or get sent away from the Court."
3. His Honour also said: "32 The learned Judicial Registrar had this in mind, and recent decisions, including the decision of this Court in Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230 make it clear that this must be the approach adopted. In my view, the learned Judicial Registrar considered the factors and she made her discretionary decision, and I myself cannot see any error in that approach which would merit this Court interfering with it."
4. Finally, his Honour also observed [33] that "Primary judges must consider themselves free to exercise their discretions in this sort of case without the thought in the back of their mind that this Court will weakly say, "Oh, we had better let the claim be adjudicated and the other side can be satisfied by an order for costs". This is not the clear policy of the legislator in the Civil Procedure Act 2005 (NSW). Allsop P said [47] that: "delay is a feature of litigation intended to be eliminated as far as possible by the statutory enactment of the regime in the Civil Procedure Act. It cannot always be done. This purpose is not through some parliamentary authoritarian or over prescriptive view of how people should lead their lives; rather, it is through the keen recognition of the conduct of the Courts, in particular in the 20th century, of the need to deal with cases expeditiously if they are to be dealt with justly. Delay and case backlog are not merely factors affecting the cost of delivering justice; they corrode the ability of the Courts to provide individual justice. The reports that have taken place under the Civil Procedure Act and the evident attempt by Courts to ensure efficiency can be seen not merely to reflect worthy efforts for efficiency but also to be steps vital for the purpose of timely individual justice. Views may differ of justice in any particular case; that is the nature of the term and the value laden task of a decision maker to do justice".
5. In Ferrier, at [20], McCallum J found that the evidence established "a very strong indication that (the plaintiff) does not have the ability to understand and evaluate the significance and implications of his prosecution of the present action and is resistant to the defendant's present motion". Having made that finding, her Honour determined that the proceedings be stayed for a period so as to enable a tutor to be appointed [21]. Her Honour further found [22] that "separately, the plaintiff's conduct of the proceedings to date, as demonstrated in the evidence read on the primary application by the defendants part-heard before me, is in my view such as to warrant a self-executing order as suggested by the defendants". The "self-executing order" to which her Honour referred [23] was that, in the event that the terms of her Honour's orders with respect to the appointment of a tutor were "not completed within a specified period, the proceedings be automatically dismissed for want of prosecution". Her Honour accordingly made the self-executing orders to which she referred.
6. The plaintiff has not prosecuted his Statement of Claim with "due despatch". The power to dismiss his proceedings is potentially enlivened. The nature and extent of the plaintiff's delays and inadequate explanation for them support granting the relief sought by the defendant (Petronaitis v Rowles [2012] NSWCA 236).
7. If the capacity of the plaintiff were not in issue in these proceedings, the Court would find that he was a "reluctant gladiator". In those circumstances, it is difficult to accept that the defendant would not be entitled to the dismissal of his Statement of Claim even if that meant that he was statute barred from re-commencing the proceedings (Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27). The plaintiff's capacity is however a real issue. Until it is determined, it is not realistically possible to determine the extent to which the plaintiff's failure to prosecute his claim with due despatch is his personal fault (Building Insurers' Guarantee Corporation v Touma [2010] NSWSC 4). If it is found that the plaintiff lacks capacity, that would explain, but not excuse, the plaintiff's failure to prosecute his Statement of Claim. Unless the plaintiff is found to have capacity, it is difficult to accept that it would be appropriate to hold the plaintiff accountable for inactivity in the way that the Court would with a plaintiff whose capacity to conduct proceedings was not in issue.
8. A further, not insignificant consideration is the risk that, if the defendant's Motion is granted, albeit largely because the plaintiff has failed to prosecute it, the plaintiff's Statement of Claim will have been dismissed without any determination of its actual or apparent merits, in circumstances where it is less than clear that the plaintiff could recommence the proceedings.
9. But for the foregoing matters, the plaintiff's demonstrated history of disregard for Court orders and unexplained failure to prosecute his Statement of Claim with due despatch would persuade the Court to grant the defendant's Motion. Balancing the competing interests of the parties, and the overall interests of justice, the Court concludes that the most appropriate course with respect to the defendant's Motion is to make a self-executing order which provides that, unless, by 28 February 2024 the defendant serves on the solicitors for the plaintiff a report with respect to his capacity to conduct the substantive proceedings from a medical practitioner who is a Fellow of the Royal Australian and New Zealand College of Psychiatrists, the plaintiff's Statement of Claim filed 6 August 2020 is struck out. Lest there be doubt, the plaintiff is responsible for paying the fee for the psychiatric report.
10. Lest the plaintiff be under any misapprehension, the Court's decision does not preclude the defendant from making a further application to dismiss the proceedings if the plaintiff avoids them being dismissed pursuant to the Court's orders set out below. The defendant could bring a further motion for dismissal if the proceedings remain on foot and the plaintiff continues to fail to prosecute them with due despatch (Queensland Trustees Limited v. Drysdale Hendy & Co. (a firm) [1992] 2 Qd. R. 625).

Costs

1. The defendant has successfully resisted the plaintiff's Motion. In the absence of any other order, the plaintiff should pay the defendant's costs of the Motion. The Court's orders will so provide. So far as the defendant's Amended Notice of Motion is concerned, the defendant may or may not be successful. That will not be known until 28 February 2024. If the plaintiff complies with the Court's orders in the defendant's Motion, he will have had the benefit of an indulgence and should be liable to pay the defendant's costs of the Motion. If the plaintiff fails to comply with the terms of the Court's self-executing order, the defendant will have been entirely successful with its Motion and, in the absence of any other order for costs being made, would be liable for the defendant's costs of that Motion. The Court is satisfied that the uncertainty with respect to the capacity of the plaintiff considered earlier in these reasons ought not deprive the defendant of its entitlement to costs.

Orders 1. The plaintiff's Notice of Motion filed on 13 April 2023 is dismissed. 2. By 28 February 2024, the plaintiff is to serve on the solicitors for the defendant a report from a registered medical practitioner holding membership of the Royal Australian and New Zealand College of Psychiatrists with respect to the capacity of the plaintiff to conduct the proceedings. 3. Subject to order (4) below, pursuant to s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are stayed. 4. In the event that the step set out in order (2) above is not completed by 28 February 2024, the defendant has liberty to approach me in chambers seeking the entry of the following orders: 1. Pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW), the proceedings be dismissed for want of due despatch; and 2. The plaintiff pay the defendant's costs of the proceedings. 1. In the event that the step set out in order (2) above is completed by 28 February 2024, the proceedings be listed for directions before the Judicial Registrar on Wednesday 6 March 2024 at 11:30 a.m. for further case management, including, but not limited to, case management directions concerning the following issues: 1. The lifting of the stay; and 2. Uniform Civil Procedure Rules 2005 (NSW), Part 7, Div 4 issues. 1. The plaintiff pay the defendant's costs of the plaintiff's Notice of Motion and the defendant's Notice of Motion and Amended Notice of Motion as agreed or assessed on the ordinary basis. 2. Any party seeking an order other than an order that the plaintiff pay the defendant's costs of the notices of motion the subject of this judgment as agreed or assessed on the ordinary basis file and serve submissions in writing not exceeding 7 pages in length within 21 days of Judgment, and a party resisting any such application file and serve written submissions not exceeding 7 pages in length in opposition to such order within 21 days thereafter. 3. Save to the extent provided for by these orders, the defendant's Amended Notice of Motion is otherwise dismissed.

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: 04 December 2023