Supreme Court New South Wales Medium Neutral Citation: Ferrier v Nationwide News Pty Limited (No 3) [2015] NSWSC 1806 Hearing dates: 27 November 2015 Date of orders: 27 November 2015 Decision date: 27 November 2015 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings stayed pending the appointment of a tutor to carry on the proceedings on behalf of the plaintiff and a solicitor to carry on the proceedings on behalf of the tutor failing which by 25 March 2016 that the proceedings be automatically dismissed for want to prosecution and that the plaintiff pay the defendants' costs. Catchwords: PROCEDURE – civil – parties – where plaintiff asserts need for a tutor but fails to appoint one – whether plaintiff under legal incapacity – proceedings stayed pending appointment of tutor – self-executing order made dismissing proceedings for want of due despatch if plaintiff fails to appoint tutor within four months Legislation Cited: Civil Procedure Act 2005 (NSW), ss 3; 67 Uniform Civil Procedure Rules 2005 (NSW), rr 7.13; 7.14; 7.16; 7.18; 7.28; 12.7 Cases Cited: Rappard v Williams [2013] NSWSC 1279 Category: Procedural and other rulings Parties: Mark James Ferrier (plaintiff) Nationwide News Pty Limited (first defendant) Adam Shand (second defendant) Representation: Counsel: Plaintiff in person L Barnett (defendants) Solicitors: Plaintiff self-represented M+K Lawyers (defendants) File Number(s): 2014/283791 Publication restriction: None Judgment – Ex Tempore 1. HER HONOUR: These are proceedings for defamation commenced by Mr Mark Ferrier against Nationwide News Pty Limited and Mr Adam Shand, a journalist. 2. By notice of motion filed 2 October 2015, the defendants sought an order that the proceedings be dismissed as an abuse of process; alternatively, an order staying the proceedings until a certain event occurred; and, further in the alternative, security for their costs. 3. The application came before me for hearing on 9 October 2015. On that occasion, the defendants adduced all of the evidence upon which they wished to rely save for the prospect of a further inquiry being made about one specific issue. The remaining issue was whether there was, in the State of Victoria, any outstanding warrant for the arrest of the plaintiff. The alleged existence of outstanding warrants was relied upon as an aspect of the abuse of process argument, for reasons it is not presently necessary to explain. 4. Part of the evidence tendered by the defendants on the application was a CD of recordings of messages left by the plaintiff for the solicitor on the record for the defendants. The content of those messages was troubling, particularly in the way in which the plaintiff appeared to speak and an apparent absence of coherence in the content of his words. 5. When it came to the point of the hearing where the parties were to address me as to the relief sought, after the hearing had proceeded for some time, the plaintiff said: "Your Honour, can I just say something on this?" 1. He proceeded to complain that the material relied upon by the defendants had not been served "on us" until close of business on Friday and that he had not had an opportunity to consider it (Mr Ferrier appears for himself but frequently refers to himself in the first person plural). 2. I suggested that there was not a great deal of material for the plaintiff to have absorbed and pressed him as to the content of the voice recordings. I asked Mr Ferrier whether he denied "receiving" the phone calls (that appears to be my error; I intended to ask whether he denied making them or, at least, that it was his voice on the recordings). His response was that he did not remember them. I pressed Mr Ferrier as to why I should not draw the inference, if he was the person who made the calls, that he was using the proceedings for an improper purpose, that is, vexing the solicitor on the record rather than prosecuting a claim to vindicate his reputation. 3. The plaintiff responded as follows: "Your Honour, I suffer from bipolar. A lot of this came from bipolar and the medication levels have been out, out over the last, I think six weeks. And the levels have come back so I did say those ones in September would definitely be the result of my condition of bipolar." 1. I then raised the question whether the applicant may need a tutor in the proceedings to prosecute the action for him. I endeavoured to explain what circumstances would give rise to the need for the appointment of a tutor. The plaintiff responded: "I definitely need help. I have an issue in understanding and I'm not able to read documents of those sorts so I definitely need help in the –." 1. The plaintiff then interrupted himself to say something else about the second defendant, Mr Shand. In any event, further discussion proceeded as to whether the plaintiff needed to have a tutor in the proceedings and ultimately the proceedings were stood over to allow that to occur. 2. When the proceedings came back before me part-heard on 13 November 2015, the defendants had heard nothing further about the appointment of a tutor. The plaintiff informed the Court that his father, Mr Ian Ferrier, would be his tutor. I asked whether his father had consented to act as his tutor in the proceedings. The plaintiff said: "Yes, he has." 1. I noted that no consent to act form had been filed, as required under the Uniform Civil Procedure Rules 2005 (NSW). The following exchange followed: "MR FERRIER: He's on his way up here. HER HONOUR: He's on his way up here? MR FERRIER: The only problem is my old man's got an AGM for Goodman Property Group." 1. The information stated by the plaintiff was that Mr Ian Ferrier was due at the meeting identified at 1 o'clock that day. The plaintiff also informed the Court that the relevant form was being filed, effectively as we spoke, by a lawyer by the name of Baron Alder. 2. The proceedings were ultimately stood over again, to today. Again, nothing has happened to effect the appointment of a tutor. 3. Ms Barnett, who appears for the defendants, tendered correspondence which rather tends to suggest that until 26 November 2015 (that is, yesterday), Mr Ian Ferrier knew nothing of the proposal that he be appointed as the plaintiff's tutor in any proceedings. Separately, correspondence from Mr Alder, a partner of Moray & Agnew, reveals that he has not been retained to act for Mr Ferrier and has no instructions to file any documents in these proceedings or to appear on Mr Ferrier's behalf today. 4. Those developments are extremely troubling. On the one hand, there is at least the suggestion that the court has been misled by the plaintiff. On the other hand, the plaintiff's conduct exacerbates the concern raised by his own statement to the court that he has been diagnosed with bipolar disorder. 5. The difficult question is whether Mr Ferrier is under legal incapacity. The UCPR provide that a person under legal incapacity may not commence or carry on proceedings except by a tutor. 6. The principles relating to the circumstances in which the court should regard a person as being "under legal incapacity" within the meaning of r 7.14 were helpfully set out by Hallen J, in terms upon which I could not improve, in Rappard v Williams [2013] NSWSC 1279 at [62] and following. I would rely, in this context, particularly upon what his Honour said at [76] as follows: Whether a person is under a legal incapacity 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 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a "person who is under a legal incapacity in relation to the conduct of legal proceedings" must be considered. Thus, 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 for that reason fall within the definition of "person under legal incapacity". 1. His Honour also provided a helpful definition of the term "conduct of legal proceedings", which I would respectfully adopt, at [78] of the judgment as follows: The "conduct of legal proceedings" refers 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 co-operation, 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 proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24]. 1. 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. 2. Accordingly, whether or not Mr Ferrier falls strictly within the definition of a person under "legal incapacity" within the meaning of r 7.14 (and I suspect he does), I would consider it appropriate to stay the proceedings for a period so as to enable a tutor to be appointed, noting that the court can require the appointment of a tutor for the purpose of protecting the interests of a person in the particular litigation even if not affirmatively satisfied that the person falls within the various statutory definitions of "legal incapacity". So much appears to have been said in a number of authorities cited in the annotations to r 7.13 and the proposition is, in any event, one which I would hold to be correct. 3. 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. Ms Barnett has proposed that the Court should, pursuant to s 67 of the Civil Procedure Act, stay the proceedings until such time as a tutor has been appointed and a solicitor appointed to carry on the proceedings on behalf of the tutor, as required respectively by rr 7.16 and 7.18 of the UCPR. 4. Ms Barnett has also proposed that the Court should make a self-executing order that, in the event that the steps set out in those orders are not completed within a specified period, the proceedings be automatically dismissed for want of prosecution by r 12.7 of the UCPR and that there be an order that the plaintiff pay the defendants' costs. The period proposed by Ms Barnett was six months. In my view, based on my experience of these proceedings over several interlocutory hearings, that is overly generous. I propose a period of four months. 5. For those reasons, I make orders 1 and 3 and grant the liberty recorded in order 2 of the short minutes of order provided by Ms Barnett, noting that the date by which the steps required to be taken by Mr Ferrier are to be taken is 25 March 2016. Those orders are: Subject to order 3 below, pursuant to section 67 of the Civil Procedure Act 2005 (NSW) these proceedings are stayed until such time as: a tutor has been appointed to carry on these proceedings on behalf of the plaintiff and the documents required to be filed by r 7.16 of the Uniform Civil Procedure Rules 2005 (NSW) have been filed; and a solicitor has been appointed to carry on these proceedings on behalf of the tutor and the document required to be filed by r 7.28 of the UCPR has been filed. Liberty to apply on three days' notice in the event that the steps set out in 1(a) and (b) above are completed. In the event that the steps set out in 1(a) and (b) above are not completed by 25 March 2016 the following orders will be automatically made: Pursuant to r 12.7 of the UCPR these proceedings be dismissed for want to prosecution; and the plaintiff is to pay the defendants' costs of the proceedings. 1. I am satisfied, notwithstanding the matters to which I have referred, that Mr Ferrier has the intelligence and the capacity to understand what I have just said. 2. I will reserve the costs of the notice of motion and the argument today. *********** 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: 01 December 2015