Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Macura v Sarasevic & Anor [2020] NSWCA 119 Hearing dates: 15 June 2020 Date of orders: 15 June 2020 Decision date: 15 June 2020 Before: White JA Decision: 1. If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor. 2. Order that the costs of the application be the appellant's costs in the appeal. Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors – whether appellant under legal incapacity for the purposes of r 7.14 Uniform Civil Procedure Rules 2005 (NSW) – where appellant represented by a tutor before the primary judge –whether to dispense with the requirement for proceedings to be commenced or carried on by a tutor – where change in appellant's circumstances since the appointment of a tutor by the primary judge Legislation Cited: Civil Procedure Act 2005 (NSW) s 14 NSW Trustee and Guardian Act 2009 (NSW) s 41(2) Cases Cited: Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 Macura v Saracevic [2019] NSWSC 1409 Macura v Sarasevic [2019] NSWSC 1409 Mao v AMP Superannuation Limited [2015] NSWCA 252 Mao v AMP Superannuation Limited [2018] NSWCA 72 Category: Procedural and other rulings Parties: Branko David Macura (Appellant) Dragan Sarasevic (First Respondent) Milena Mijatovic (Second Respondent) Representation: Counsel: D Boutros, Solicitor (Appellant) J Bartos (Respondents) Solicitors: DB Law & Associates (Appellant) Jordan's Law Practice (Respondents) File Number(s): 2019/356599 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. HIS HONOUR: By notice of motion filed on 24 April 2020 the appellant (Mr Branko Macura) seeks an order that the court "dispense with the need for the applicant to require a tutor". 2. The background to this application can be stated fairly shortly. On 8 January 2020 the appellant filed a notice of appeal from orders of Ward CJ in Eq in which her Honour, amongst other things, declared that the appellant and the respondents had reached a settlement agreement as set out in short minutes of order signed by the parties on 20 March 2018 and formalised in short minutes of order signed by the parties' solicitors on 23 March 2018 (Macura v Sarasevic [2019] NSWSC 1409). Her Honour recorded that the respondents are the executors of the will of the late Mr Milorad Adzic. Her Honour recorded that Mr Macura had instituted proceedings in 2017 in which he claimed that the deceased had made a gift to him donatio mortis causa of property owned by the deceased at Liverpool. Alternatively, Mr Macura sought a family provision order out of the estate or the notional estate of the deceased on the basis that he and the deceased had been in a de facto relationship. 3. The proceeding before the primary judge was an application by the respondents to enforce an agreement arrived at during a mediation for the settlement of the appellant's claims for payment of $100,000 inclusive of costs. The appellant claimed that he lacked capacity to enter into the agreement and that the respondents had actual or constructive knowledge of his incapacity. The primary judge concluded: "223 Had it been necessary to determine for the purposes of the present application, I would have held that it had not been established on the balance of probabilities (whatever be the position now) that Mr Macura lacked capacity on 20 March 2018 to give instructions in relation to, and to enter into, a compromise of his claims in the substantive proceedings. ... 225 That said, it is not necessary to make any final determination on that issue because, in my opinion, even if there was such an incapacity, it has not been established that the executors knew (or, if that be the relevant test, ought to have known) of that incapacity." 1. On 18 April 2019, shortly before the commencement of the hearing before the primary judge, the solicitors then acting for the appellant applied for an order for the appointment of a tutor to represent the appellant in the proceedings (Judgment [41]). The applicant was not opposed by the respondents and a tutor, Mr Lawrence Myers, was appointed on that day. The primary judge said (at [45]): "Ultimately, there was no opposition by the executors to the appointment of a tutor provided that this did not lead to an adjournment of the substantive hearing dates fixed for 23/24 April 2019. I concluded at that time that the proposed tutor (a 'semi-retired' solicitor, Mr Lawrence Myers) should be appointed as Mr Macura's tutor on the basis of the evidence that Mr Macura had a persistent delusion as to his Vietnam war service that made him incapable of providing proper instructions in relation to the conduct of the proceedings going forward (and, significantly, that his solicitors would otherwise have been unable to continue to act if Mr Macura persisted in maintaining certain matters in his affidavit that they had discovered to be false). That conclusion involved no finding as to Mr Macura's capacity to give instructions in relation to the proceedings at any earlier time." 1. The application before the primary judge had been supported by a report of a psychiatrist, Dr Napper, dated 17 April 2019 in which he stated: "David had a radical prostatectomy in 2011. He said that he has metastases throughout his bones. He has had most standard treatments but is now on several high tech drugs for prostate cancer. These drugs are Xgeva, Xtandi and Zoladex. He attends the Chris O'Brien Lifehouse Centre and sees oncologist, Dr Lisa Howard. He said his latest PSI is less than 30. He gets some pain in his bones for which he takes Brufen. His other medications are Crestor, Karvea, Pariet and PRN Temazepam. David was born in Serbia and came to Australia when he was eight via a Red Cross adoption process. He had an adopted mother but no adopted father. There was one adopted sibling. He left school when he was 17 and joined the army at age 21 in 1970. He was sent to Vietnam in 1971 where he saw 12 months service. At the end of his Vietnam stay he was captured by the Vietcong for 10 days. At the end of his stay he was tortured by the Vietcong by being put in a water cage. Fortunately he was rescued by the Americans. He said that he had seen multiple traumas, dead people, and had been sprayed with Agent Orange. He attributes Agent Orange to causing his prostate cancer. David left the army in 1975 and obtained causal work in the hospitality industry. He was married for 10 years and had two children with whom he has no contact. He was divorced in 1990. Following this, he had a same-sex relationship with an older partner. This relationship lasted for seven years until his partner died in 2016 aged 93. His partner left a very valuable estate. The estate is currently under the care of an administrator. He said that he had a close relationship with his partner. His partner died in his sleep. He said that he continually feels sad about the loss of his partner. Since then he has not had any relationship. With respect to psychiatric history, David has suffered from panic attacks since he was in the army. These panic attacks have typical symptoms and last up to 15 minutes at a time, occurring two to three times a week. His last panic attack was two weeks ago. He avoids driving into tunnels because this would cause panic attacks. He has never seen a psychiatrist. He said that he has tried some antidepressants in the past but did not say which ones. He has not seen a psychologist. He continually thinks about his experiences in Vietnam and the trauma he saw and the torture he experienced. There do not appear to be any features of PTSD. He said that he has had depression in the past for which he took tablets but could not supply any information. On presentation, David was a 69 year old well-groomed man who was casually and neatly dressed. His mood was euthymic and his affect was reactive. There was no disorder of thought form or thought content. David showed me a copy of a letter from his previous GP, Dr D A Chamberlain. The letter is dated 23 April 2015 and states that David suffers from severe Panic Disorder caused by being a prisoner in Vietnam. The letter also refers to significant depression and also pain from the spread of his prostate cancer. David has chronic Panic Disorder which was caused by his experiences in Vietnam. I do not have any information as to what treatments he has had for his panic disorder. David is currently not requesting any treatment for his panic disorder. He is significantly affected by the side effects of the prostate cancer drugs that he takes. These side effects include sweating, confusion and unsteadiness on his feet. These symptoms last for several hours after taking his medication. He continually feels sad since the death of his partner and sometimes visits the cemetery. He continually thinks about his experiences in Vietnam but does not have PTSD symptoms." 1. On 13 November 2019 Mr Macura filed a notice of intention to appeal and, as noted above, on 8 January 2020 he filed a notice of appeal. He did not then have legal representation. He told me that the notice of appeal was prepared with the assistance of a friend. As explained below, the grounds of the notice of appeal are expressed lucidly and contain logical and relevant argument. In support of his notice of motion, Mr Macura deposed: "2 I understand that I previously had a tutor appointed on my behalf by the lower Court in the proceedings in the Supreme Court of NSW. 3 This was at the request of my previous solicitors who believed at that time I was unable to give proper instructions which I believe was mainly due to the negative side effects of the medication I was taking at that time which was causing me issues of understanding and apparently the ability to give proper instructions. 4 I have since stopped taking that medication and those side effects have also stopped. This has allowed me the ability and opportunity to begin these proceedings. 5 I believe I am able to conduct myself and my own affairs adequately including running this matter and giving instructions to solicitors and/or counsel in relation to these proceedings as and when required. 6 On or about 11 March 2020 I sought medical advice from my doctor who is a Consultant Psychiatrist, Dr Howard Napper, to confirm this. Annexed and marked '1' is a letter provided by Dr Napper on my behalf. 7 I believe I no longer require a tutor and request the Court to dispense with this requirement in these proceedings and to allow me to be able to continue with this matter in my own right." 1. In a report dated 15 April 2020 Dr Napper stated: "This is to certify that I have known Mr Branco [sic] Macura since 16 November 2018. I have seen him on the following dates: 16.11.18, 17.04.19, 05.05.19 and 11.03.20. My initial diagnosis of Mr Macura was that he was experiencing panic attacks. I treated him with an antidepressant, Paroxetine and his panic attacks went away. Mr Macura's mental state has been stable. He is currently involved in a court case (Case Title: Branko David Macura v Milena Mijatovic). When I last reviewed Mr Macura on 11 Marc[h] 2020 he was able to give me a clear account of what the court case was all about. It was clear to me that he understood what the legal processes were all about. He was clear in his mind as to what outcome he was seeking. In my opinion, he was able to instruct his legal representative. There was no evidence of any cognitive impairment. In my opinion, based upon my assessments of Mr Macura, I consider that Mr Macura does not require a tutor." 1. Both Mr Macura and Dr Napper were cross-examined on the present application by counsel for the respondents. Mr Macura was cross-examined in relation to his asserted beliefs as to his Vietnam War service. The substance of his evidence in that regard is consistent with matters asserted in his grounds of appeal. He maintains the truthfulness of his service in the Australian Defence Force and of his statements as to his Vietnam service. He refers in his grounds of appeal to what he calls "newspaper evidence" dated 12 June 2019 where the Veterans Affairs Minister is reported as having acknowledged that records of the ADF are not accurate in relation to Vietnam veterans. Dr Napper stated that when asked about his war service Mr Macura had advanced the same explanation for the absence of records from the Australian Defence Force of his alleged service. 2. Mr Macura was not cross-examined as to his evidence that since 2019 he had stopped taking medication which had caused side effects which he said had caused issues as to his understanding and ability to give proper instructions. Dr Napper was cross-examined at some length as to what he had been told by Mr Macura as to his Vietnam War service. Dr Napper said in substance that if it were accepted that Mr Macura had not engaged in war service in Vietnam, as he has said he did, then he was either deluded or was lying. The choice between those alternatives was not one which he, as a psychiatrist, could make. But Dr Napper added that if Mr Macura were deluded, then such an isolated delusion about Vietnam War service would not be associated with more general cognitive impairment. He cited criteria 6(c) of DSM 5 which he said stated that apart from the impact of the delusions or its ramifications, the presence of delusions will not materially impair cognitive functioning. 3. Dr Napper was not challenged on his opinion expressed in his report of 15 April 2020 that when he reviewed Mr Macura on 11 March 2020 Mr Macura was able to give Dr Napper a clear account of what the court case was about and that he, in Dr Napper's opinion, had the capacity to instruct legal representatives. Dr Napper found no evidence of cognitive impairment. I accept that opinion. 4. The respondents opposed the relief sought. Although they have not filed a notice of motion to seek to dismiss the appeal as incompetent, they submit that unless a tutor is appointed within a reasonable time the appeal ought to be dismissed. 5. Even if the appointment of a tutor were necessary for Mr Macura to be able to pursue the appeal, it is not clear to me that that result would necessarily follow (Mao v AMP Superannuation Limited [2015] NSWCA 252 (Mao No. 1) at [58] and Mao v AMP Superannuation Limited [2018] NSWCA 72 (Mao No. 2) at [2]). 6. The respondents submitted: "10. During the course of the proceedings the appellant's counsel conceded that the assertions made by the appellant as to having served as a member of the Australian Army were false; his assertions as to having served in the Vietnam War were false; his assertions as to having been conscripted were false; the discharge document that appellant had tendered in his affidavit was false, and was a forged discharge document; and that appellant was not entitled to any of the medals or awards that such a discharge document claimed on his behalf. 11. Further, during the course of the proceedings the respondents tendered the record of the appellant's criminal conviction in June 2013 in relation to falsifying his army record to obtain disability and service pension on the basis of alleged war service in Vietnam. ... 15. There is no evidence that the legal disability based on which the tutor was appointed no longer exists. Indeed, the submissions that form a part of the notice of appeal tend to indicate otherwise. The appellant insists that he did serve in Vietnam, that the discharge record conceded by his counsel to have been forged is genuine and that he was exposed to Agent Orange in Vietnam." 1. Assuming it is correct that the appellant's continued insistence of his service in Vietnam is delusional, it does not appear to me that any such delusion would materially affect his ability to conduct the issues arising on the appeal. 2. The appellant's grounds of appeal in relation to his alleged incapacity in March 2018 are in substance as follows: 1. that the primary judge erred in refusing an application for an adjournment to enable expert evidence to be obtained as to his mental capacity as at 20 March 2018, and that thereby his mental capacity at the relevant date was not appropriately assessed; 2. that the primary judge failed to give adequate consideration and weight to medical visits and notes of those visits of 19 March 2019 (scil. 2018) which are said to evidence that his ability to enter into legal agreements had been adversely affected by his medical condition, treatment and the medications he was then taking; 3. that evidence of the side effects of medication being taken by the plaintiff at the time of the mediation was "easily accessible on research of the medication" but was not given adequate consideration by the court; 4. that the primary judge did not accept Dr Napper's evidence given in the report of 17 April 2019 to the effect that the plaintiff was unable to give instructions, which, I infer it is said, ought to have either led to a conclusion that he suffered from such incapacity in March 2018, or, at least, that the court erred in not allowing further investigation of that alleged incapacity. 1. Other grounds of appeal relate to the evidence given in relation to a comment said to have been made by Mr Macura's barrister (Mr Cominos) at the commencement of the mediation and what are asserted to be the consequences of Mr Cominos' not being called to give evidence at the hearing before the primary judge. Challenge is made to the findings that the respondents either did not know or did not have constructive knowledge of his incapacity. 2. Under the heading "Prejudice suffered by the plaintiff due to claims to the truthfulness of the plaintiff in the proceedings and the weight placed on this by the court", the grounds of appeal include that Mr Macura maintains the authenticity of his account of his Vietnam War service and asserts that his character was unfairly prejudiced at the hearing at first instance where the court placed little weight on his evidence in those circumstances, including his version of events at the mediation. 3. Whether these grounds of appeal are right or wrong is not the present issue. Their articulation suggests no current incapacity. But I take into account that Mr Macura had assistance from a friend in the preparation of those grounds. I do not know whether he will have legal assistance in the appeal, but it can at least be assumed that if not, he would have similar assistance, at least in the preparation of written material. 4. The primary judge recorded (Judgment [218]) that: "Mr Macura's performance in the witness box was instructive. [He] was clearly not incapable of answering questions albeit that he had a tendency in so doing to argue his own case and to indulge in lengthy and not always responsive explanations." 1. If it be the case that Mr Macura's assertions as to his service in the Vietnam War and exposure to Agent Orange are delusional, it does not follow that he lacks the capacity to conduct his appeal either with or without legal representation. It does not appear that he lacks the capacity to understand advice that he may receive or to provide informed instructions. The truthfulness of Mr Macura's assertions as to his service in the Vietnam War may have been highly relevant to an assessment of his credit in the proceedings before the primary judge. But the appeal can be expected to be determined on the basis of the record at trial and the primary judge's findings. Whether the appellant's assertions as to his service in Vietnam are truthful, delusional, or a deliberate fabrication, would have no direct relevance to any of the issues that would arise on appeal that I can see. 2. The respondents submitted that the primary judge's finding of incapacity extends to the proceedings in this court. The respondents cited in support of this submission Mao (No. 2) at [9]. I doubt that that is so. Mao (No. 2) concerned an appeal from an order of the Equity Division made on the court's own motion pursuant to s 41(2) of the NSW Trustee and Guardian Act 2009 (NSW) that the NSW Trustee be appointed as manager of so much of the estate of the plaintiff as pertained to her right, title and interest in proceedings that she had brought. In Mao (No. 2) the proceedings in the Equity Division remained on foot. The court (Basten and Leeming JJA) said (at [9]) that the Chief Judge's finding of incapacity must be understood to extend to the proceedings in this court (at [9]). By contrast, in this case the proceedings in the Equity Division have concluded. 3. In Mao (No. 1) the Court of Appeal (Beazley ACJ, Emmett and Leeming JJA) said (at [58] and [59]): "58 The filing of the summons for leave to appeal must be taken to have been the commencement of proceedings for the purpose of r 7.14(1). Since no tutor has been appointed and it has not been suggested that any person has become Ms Mao's tutor, there must be a concern (though it need not be conclusively resolved here) that the purported commencement of the proceedings in this Court, by the filing of the summons for leave to appeal, was defective. Just as the primary judge observed that, until a tutor is actually nominated and files the relevant documents, the AMP Proceedings and the BT Proceedings could not continue, so until that happens the present proceedings in this Court cannot continue. That is the consequence of r 7.14(1) in so far as it provides that a person under legal incapacity may not commence or carry on proceedings except by his or her tutor. Conclusion 59 For the reasons indicated above, the summons for leave to appeal may be incompetent since Ms Mao had no capacity to commence proceedings of that nature. However, in the absence of a tutor, there may be no scope for her to impugn the conclusions of the primary judge. That circumstance has been brought about by the AMP Parties because of their failure to comply with r 7.18 in their original application for the appointment of a tutor. In the circumstances, the appropriate, and pragmatic, course is to dispense with compliance with the UCPR to the extent that r 7.14(1) would prevent Ms Mao from commencing proceedings by way of filing the summons for leave to appeal, or filing any notice of appeal if leave is granted, and in so far as r 7.14(1) would prevent Ms Mao from carrying on any such proceedings. This Court has power to do so under s 14 of the Civil Procedure Act." 1. It follows that the proceeding commenced by the notice of appeal in this court is a separate proceeding from the proceeding in the Equity Division that has been finalised. It does not appear to me that the order of 18 April 2019 for the appointment of a tutor has any direct application to the appeal brought by the applicant. The present case stands in contrast to the circumstances in Mao (No. 2). The earlier order certainly raises a question about Mr Macura's capacity to commence and to continue with this appeal. But the evidence adduced on the application shows that he has that capacity. 2. The primary judge observed (at [45]) that her (unopposed) finding of incapacity as at 18 April 2019 involved no finding of Mr Macura's capacity to give instructions at an earlier time. Nor does it preclude a finding that at a later time Mr Macura has capacity to commence and to continue with the appeal. 3. I doubt that it is necessary to dispense with the operation of r 7.14(1), although that could be done pursuant to s 14 of the Civil Procedure Act 2005 (NSW) (Mao (No. 1) at [59]; Kostov v YPOL Pty Ltd (2018) 98 NSWLR 1002; [2018] NSWCA 306 at [20]). 4. Had the respondents sought a stay or dismissal of the appeal, the present issue could be resolved by dismissing such an application. In the absence of such a process, and in case I am wrong as to the operation of the order of 18 April 2019 to the appeal, the appropriate order is: If and to the extent necessary, dispense with any requirement the appellant not commence or carry on these proceedings except with a tutor. 1. I make that order. 2. On the question of costs it appears to me that the appropriate order is that the costs of the application be the appellant's costs in the appeal, and I so order. ********** 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: 22 June 2020