Supreme Court New South Wales Medium Neutral Citation: Benson v Casch [2023] NSWSC 1192 Hearing dates: 4 October 2023 Date of orders: 4 October 2023 Decision date: 04 October 2023 Jurisdiction: Equity - Family Provision List Before: Kunc J Decision: Limited medical examination ordered Catchwords: CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Medical examination in relation to capacity — UCPR Part 23 r 23.4 Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Murray v Williams [2010] NSWSC 1243 Category: Procedural rulings Parties: Andrew Bryan Benson (Plaintiff) Louise Elizabeth Casch (First Defendant) Craig Michael Benson (Second Defendant) Representation: Counsel: A Green (Applicant Defendants) K Morrissey (Respondent Plaintiff) Solicitors: Turner Freeman (Plaintiff) David Lander Stewart (Defendants) File Number(s): 2023/260818 Publication restriction: Nil Ex Tempore JUDGMENT (revised) 1. This is an application brought by the defendants in family provision proceedings for, in the first instance, a medical examination of the plaintiff as an anterior step to pressing a further claim for the appointment of a tutor for the plaintiff. For the reasons which follow, the Court will order the plaintiff to attend a medical examination limited to the question of his capacity to continue to give instructions in the further conduct of these proceedings. Without disrespect, I shall refer to the parties and others by their given names. 2. The plaintiff, Andrew, is a single 58-year-old man and eldest son of Eileen Benson, who died on 7 April 2019, and Brian Benson, who died on 9 March 2015. Andrew has two siblings: Louise, the first defendant, and Craig, the second defendant. They are co-executors of Eileen's will made on 10 October 2018. 3. On 16 August 2023, Andrew filed a summons for additional provision from Eileen's estate or notional estate and an order that the time for filing the summons be extended to allow for the fact that the one year limitation period had expired. 4. By amended notice of motion filed in Court on 15 September 2023, Louise and Craig seek this relief: "Interim relief 1 An order pursuant to Rule 23.4 of the Uniform Civil Procedure Rules (2005) NSW (UCPR) that the Plaintiff submit to a medical examination with Dr Jane Lonie on 10 October 2023 at 10:30am at 472 Pacific Highway St Leonards. 2 An order that these proceedings be stayed until such time as the Plaintiff submits to a medical examination pursuant to Order 1. 3 An order that the defendants be permitted for the purposes of the medical examination pursuant to Order 1 to provide a copy of the pleadings and the affidavits filed in these proceedings to Dr Jane Lonie for the purpose of her medical examination of the Plaintiff. Final relief 4 A declaration that the Plaintiff is a person under a legal incapacity. 5 An order that a tutor be appointed for the Plaintiff pursuant to Rule 7.18 of the UCPR. 6 An order that the costs be paid out of the estate of the deceased. 7 Any other order that the Court deems fit." 1. Although perhaps inapt so to describe it, the intent of dividing the relief between interim and final was clear. The first stage of the motion, which I have heard today, is an application for the medical examination. The application for a tutor is to proceed once the medical report is available. 2. Ms A Green of Counsel appeared for Louise and Craig. Mr K Morrissey of Counsel appeared for Andrew. While Mr Morrissey did not oppose the bifurcation of the motion in the way I have described in the preceding paragraph, he did oppose the relief being sought in the motion. 3. The application was brought, so it was put to me, out of concern on the part of Louise and Craig for Andrew. This is because in 1985 Andrew was involved in a very serious motorcycle accident which resulted in a traumatic brain injury. He was in a coma in intensive care for approximately six weeks and in hospital for about six months, during which time he had to re-learn to walk, talk and feed himself. 4. The Court received evidence from Louise of both her lifelong observations of Andrew and her current experience of his capacity to look after himself and make decisions about his life affairs. Andrew has been on a disability pension since the time of his accident and has, with very limited exceptions, not been in any form of employment since then. The picture painted by Louise's evidence was that Andrew can become agitated; has difficulty looking after his own affairs; was dependent upon his late mother, in particular, and now, at various times, Louise, for assisting him with many ordinary interactions of his life. Unfortunately, Louise and Andrew are now estranged. 5. The view I have come to about Louise's evidence is that it demonstrates a history where at least a question is raised that warrants inquiry as to Andrew's capacity to continue to give instructions and fully appreciate, with the assistance of his solicitor Mr Goldberg, the issues that will confront him in the conduct of this litigation. 6. On the other hand, I have also had the advantage of being taken through both Andrew's principal evidence that has been filed in chief in support of his application for additional provision, and a detailed affidavit from his solicitor Mr Goldberg concerning Mr Goldberg's observations of Andrew in the course of taking instructions for the purposes of commencing these proceedings. Mr Goldberg has been in practice as a solicitor since 1985 and is well experienced over the course of a career of some 37 years in assessing the decision-making abilities of clients from the perspective of a solicitor. His evidence satisfies me that he has acted for numerous clients where issues of capacity had to be considered by him. His evidence is to the effect that he is satisfied that Andrew has exhibited the necessary capacity to give instructions for the purposes of these proceedings. 7. I am satisfied, on the basis of both Andrew's affidavit in chief and Mr Goldberg's evidence, that Andrew did have capacity to commence these proceedings and give instructions for that purpose, including in relation to the preparation of his affidavit in chief. However, as I observed to Mr Morrissey of Counsel in the course of argument, Mr Goldberg does not give in terms the same evidence of his confidence in relation to Andrew's capacity insofar as the instructions which Andrew has given in relation to resisting the present notice of motion. 8. That is not said by way of criticism either of Mr Goldberg or of Andrew. Nevertheless, the fact remains that there is a lacuna, perhaps ultimately a small one, in relation to the evidence before the Court about Andrew's capacity to make the kinds of tactical decisions that will now be required of him as a litigant in the court, including as to matters such as mediation, even with the assistance of an experienced solicitor advising him as to what the solicitor's view is about what may or may not be in Andrew's interests. While each case is different, decisions to be made by a litigant in the course of litigation, including about matters such as the present motion or settlement, can involve a more nuanced or complex evaluation than the initial decision to commence proceedings. 9. The hearing today was confined to the question of whether Andrew should submit to a medical examination. This was put as a forerunner to a hearing as to whether or not a tutor should be appointed for Andrew in these proceedings. The fact that the application is so confined seems to me to be a matter of some importance. At any final hearing for family provision any physical or intellectual disability of a plaintiff is a matter which the Court can take into account as to both adequacy of provision and the quantum of any further provision. However, evidence of such matters is usually given by more informal means than a full medical examination of the plaintiff. There are well-established rules for the granting of leave to obtain expert evidence on such topics for the conduct of the principal proceedings. 10. What the Court is being asked to do at this stage is something of a more limited nature. While Ms Green initially submitted that any evidence obtained would be relevant both to the present application and to the final hearing of these proceedings, in my respectful view, for the reasons I have just indicated, any examination that is now to take place should be confined to the more limited issue of Andrew's capacity in relation to these proceedings. This application should not, even inadvertently, also become an anticipatory foray for evidence gathering for the final hearing. 11. The Court's discretion to order a medical examination under UCPR Part 23 r 23.4 is a wide one to be exercised judicially. The parties accepted it was a matter of what the Court was satisfied was just and reasonable. The rule provides: 23.4 Order for examination (1) The court may make orders for medical examination, including an order that the person concerned submit to examination by a specified medical expert at a specified time and place. (2) If the court orders that the person concerned submit to examination by a medical expert, the person must do all things reasonably requested, and answer all questions reasonably asked, by the medical expert for the purposes of the examination. 1. The rules of Court must be administered having regard to ss 56 to 58 of the Civil Procedure Act 2005 (NSW) to the effect that the Court must apply the rules so as to achieve the overriding purpose. 2. In the present case, recognising that there can be a distinction between having capacity to give instructions to commence proceedings and having capacity to make the kinds of decisions that a litigant may be called upon to make (including as to settlement) in relation to the conduct of the proceedings, the evidence has satisfied me that a sufficient question has been raised by Louise's evidence, and what I have referred to as the lacuna in Mr Goldberg's evidence, to warrant inquiry as to Andrew's capacity to continue to give instructions in these proceedings. It would be inconsistent with the overriding purpose to allow that question to go unanswered. 3. Having informed the parties of my view, there was a short adjournment. After the adjournment, Mr Morrissey informed the Court that Andrew – very sensibly, if I may respectfully say so – would not oppose an order that he attend a medical examination for the more limited purpose of investigating his capacity to give ongoing instructions in the proceedings. 4. Andrew was present in Court throughout the proceedings and, to my observation, was paying close attention to what was being said. I should also record that, out of a concern to maintain the agency of a litigant such as Andrew, I did raise with Mr Morrissey that the Court would be prepared to give Andrew the opportunity to address the Court directly, if he wanted to do so, on the questions raised by the present application. After the short adjournment, Mr Morrissey informed me that Andrew did not wish to take up that invitation. I draw no inference about anything from the fact that Andrew did not take up the invitation. 5. The appropriate course is to order the medical examination but in relation to limited questions, the form of which I have discussed with the parties and which are to some extent adapted from those referred to in a judgment of Hammerschlag J (as his Honour then was) in Murray v Williams [2010] NSWSC 1243. 6. For these reasons, the Court made these orders: "The Court 1. Orders pursuant to r 23.4 of the Uniform Civil Procedure Rules 2005 that the plaintiff submit to a medical examination with Dr Jane Lonie on 10 October 2023 at 10:30am at 472 Pacific Highway St Leonards or at such other time and place as the parties may agree. 2. Directs the defendants as soon as practicable to provide to Dr Lonie the following documents (with a copy to the plaintiff's legal representatives): a. summons dated 16 August 2023 b. the affidavit of Andrew Benson of 21 August 2023 with exhibit AB1 thereto c. the defendants amended notice of motion filed 15 September 2023 d. the affidavit of Terence Goldberg of 22 September 2023 e. the affidavit of Louise Benson of 28 September 2023 3. That Dr Lonie provide a report addressing these questions: a. What is your opinion as to Mr Benson's current mental capacity? b. Do you consider that Mr Benson has capacity to make a decision about whether or not to continue his claim against his late mother's estate? c. In your opinion is Mr Benson 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 these proceedings including, without limitation, as to whether and, if so upon what terms, he should compromise these proceedings? 4. Dr Lonie is to provide a copy of her report to the legal representatives of the parties within two business days of its completion. 5. Notes that the defendants have agreed to be responsible for Dr Lonie's fees for the examination of Mr Benson and the preparation of her report in accordance with these orders. 6. Costs of the application for interim relief in the defendants' amended notice of motion filed 15 September 2023 including the costs of today are reserved. 7. Stand the amended notice of motion and the proceedings generally over for directions before the Succession List Judge on 10 November 2023." ********** 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: 05 October 2023