Supreme Court New South Wales Medium Neutral Citation: Carey v Carey [2020] NSWSC 765 Hearing dates: On the papers Date of orders: 18 June 2020 Decision date: 18 June 2020 Jurisdiction: Equity Before: Darke J Decision: Application for appointment of tutor for plaintiff refused. Catchwords: CIVIL PROCEDURE — where plaintiff applies for the appointment of a tutor — whether plaintiff under legal incapacity — where no medical evidence provided — no appointment of tutor made where evidence insufficient to show plaintiff under legal incapacity Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 7.14 Cases Cited: Ferrier v Nationwide News Pty Ltd (No 3) [2015] NSWSC 1806 L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] EWCA Civ 70; [2003] WLR 1511 Pistorino v Connell [2012] VSC 438 Rappard v Williams [2013] NSWSC 1279 Category: Procedural and other rulings Parties: Veronica Carey (Plaintiff) Gregory Colin Carey (Defendant) Representation: Counsel: Mr B DeBuse (Plaintiff) Ms M M Pringle (Defendant) Solicitors: Rockliff Snelgrove Lawyers (Plaintiff) Turner Freeman (Defendant) File Number(s): 2019/99156 Publication restriction: None Judgment 1. These proceedings concern a property in St Marys, the registered proprietors of which are the plaintiff (Veronica Carey) and the defendant (her son, Gregory Carey). The parties hold the property in equal shares. However, it is alleged by the plaintiff that the defendant holds his interest on a resulting trust for her benefit. A declaration to that effect is sought. In the alternative, relief pursuant to s 66G of the Conveyancing Act 1919 (NSW) is claimed. An order is also sought for accounts in relation to rents received. The defendant denies the existence of the resulting trust and says that the plaintiff's contributions towards the acquisition of the property were gifts to him. I note, however, that no Cross-Claim has been filed. 2. By Notice of Motion filed on 6 March 2020, the plaintiff seeks an order that William Perkins be appointed as her tutor pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 7.14 on the ground that the plaintiff relevantly lacks capacity. Another aspect of the Notice of Motion in relation to the certificate of title for the property is not pressed at the present time. The defendant opposes the appointment of Mr Perkins as the plaintiff's tutor. 3. The parties were content for the application to be dealt with on the papers. The Court has received written submissions from counsel for the respective parties. 4. It should be noted at the outset that Mr Perkins is the donee of a power of attorney given by the plaintiff in 2009. Mr Perkins, in reliance upon the power of attorney, purports to bring these proceedings in the name of the plaintiff. It should be further noted that the defendant has recently commenced proceedings in the Protective List, seeking a review of the operation of the power of attorney, and an order appointing the New South Wales Trustee as a manager of the plaintiff's estate. 5. In these circumstances, it can be seen that there is an acceptance on both sides that the plaintiff's capacity is at least questionable. Indeed, each side has filed affidavits which include evidence that suggests that the plaintiff may be under a legal incapacity (see also paragraph 2 of the Defence filed on 13 December 2019). In that regard I refer in particular to the affidavits of Edwina Carey of 25 September 2019 (paragraphs 25 to 35) and 30 January 2020 (paragraph 12), the affidavits of the defendant of 5 August 2019 (paragraph 15), 8 August 2019 (paragraph 116) and 29 May 2020 (paragraphs 47 to 49). 6. Counsel for the plaintiff submitted that there seemed to be no serious dispute that the plaintiff suffers an incapacity which affects her decision making ability. Counsel for the defendant noted that the plaintiff's capacity was "at issue" but went on to submit that "there is no evidence from the plaintiff herself, and none of the material served for the plaintiff to date includes a medical assessment of the plaintiff's mental capacity to conduct the proceedings". It was submitted that the application should be dismissed in the absence of such medical evidence. 7. It is well-established that in most cases, even in the vast majority of cases, the Court will require medical evidence in order to determine whether to appoint a litigation guardian or tutor (see Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] EWCA Civ 70; [2003] 1 WLR 1511 at [17] and [29] per Kennedy LJ). Further, in L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114 the Full Federal Court stated at [27]: The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier Kennedy LJ had observed (at [17]): 'even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists'. Cases such as Hutchison v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers' Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J). 1. That statement of principle was applied by Dixon J in Pistorino v Connell [2012] VSC 438 where his Honour stated (at [17]): As their Honours observed in that case, there will be cases where no medical evidence is available when, as in this case, a litigant refuses to submit to a medical examination. There will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party. This is one of those cases. 1. In Pistorino v Connell (supra) the plaintiff refused to be medically examined. There is no suggestion of that here. 2. Ferrier v Nationwide News Pty Ltd (No 3) [2015] NSWSC 1806 was a case where there was direct evidence of a nature that cast considerable doubt upon the plaintiff's capacity (see at [4]-[10]). McCallum J (as her Honour then was), after referring to the decision of Hallen J in Rappard v Williams [2013] NSWSC 1279 at [76] and [78], stated (at [20]): In my view it is plain beyond dispute that, whether or not Mr Ferrier falls within the definition of a person under a legal incapacity provided in s 3 of the Civil Procedure Act 2005 (NSW), there is a very strong indication that he does not have the ability to understand and evaluate the significance and implications of his prosecution of the present action and his resistance to the defendants' present motion. In my view, there is a strong indication, even from his conduct of the proceedings, that Mr Ferrier is not capable of dealing in a reasonably competent fashion with the tasks required of him to prosecute the action and further that there is a real risk owing to that lack of capacity that he may be disadvantaged in the conduct of these proceedings. McCallum J went on to order that the proceedings be stayed until a tutor was appointed. 1. The evidence in the present case is not of that nature. The plaintiff has not herself given any evidence (whether in person or by affidavit) and has not personally appeared before me in the course of the proceedings. There is no apparent reason why medical evidence of the plaintiff's condition could not be given in this case. 2. Having considered the evidence that is presently before the Court, I am not satisfied that the plaintiff is a person under legal incapacity for the purposes of UCPR r 7.14. The evidence falls well short of the clarity that would obviate the need for medical evidence. The plaintiff has thus not discharged the onus of establishing a lack of capacity. I therefore decline to make the order sought for the appointment of Mr Perkins as the plaintiff's tutor. 3. In circumstances where there remains a question as to the plaintiff's capacity, and there are now proceedings in the Protective List where this appears to be the central issue, it seems to me that it may be appropriate for this matter to be listed together with those proceedings so that the issue can be determined in a single hearing, with the Court having the benefit of medical evidence. I note that the defendant has suggested that the present proceedings be stayed pending determination of the Protective List proceedings. 4. As this matter is listed for directions next week, at this stage I will simply order that the plaintiff's Notice of Motion filed on 6 March 2020 be dismissed. The plaintiff should pay the defendant's costs of the motion. I note that the defendant, in that event, seeks costs on an indemnity basis. However, I do not discern any good reason for such an order. Costs will be awarded on the ordinary basis. ********** 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: 18 June 2020