Supreme Court New South Wales Medium Neutral Citation: PF v HK [2016] NSWSC 590 Hearing dates: 14, 16 and 21 September and 18 December 2015, and 10 February 2016 Date of orders: 11 May 2016 Decision date: 11 May 2016 Jurisdiction: Equity - Protective List Before: Lindsay J Decision: (1) Declare that the defendant is incapable of managing her affairs. (2) Orders for management of the estate of the defendant to be committed to the NSW Trustee, subject to the NSW Trustee and Guardian Act 2009 NSW. (3) Order that the proceedings be adjourned to enable the NSW Trustee to consider, inter alia, whether to consent to its appointment as tutor for the defendant (as a plaintiff) in related proceedings in the District Court of NSW. Catchwords: PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Protected estate case management MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Appointment - Management of the estate – Tutor sought for District Court compensation proceedings – NSW Trustee to consider whether to consent to appointment as tutor Legislation Cited: Motor Accidents Compensation Act 1999 NSW, NSW Trustee and Guardian Act 2009 NSW Uniform Civil Procedure Rules 2005 NSW Cases Cited: A v A [2015 ] NSWSC 1778 Bobolas v Waverley Council [2012] NSWCA 126 F v K [2014] NSWCA 39 Murphy v Doman (as representative of the Estate of the Late Min Simpson) (2003) 58 NSWLR 51 Re P [ 2006] NSWSC 1082 Texts Cited: - Category: Principal judgment Parties: Plaintiff: PF, the defendant in personal injury compensation proceedings instituted by HK. Defendant: HK, the plaintiff in the compensation proceedings Representation: Counsel: Plaintiff: J Morris SC and G Babe (on 14 September 2015) and B Kelleher (on 10 February 2016); J Oldknow, Solicitor (on 16 and 21 September 2015); and A-M Williams, Solicitor (on 18 December 2015) Defendant: in person Solicitors: Plaintiff: Moray & Agnew Defendant: self represented File Number(s): 2015/00255121 Judgment INTRODUCTION 1. By a summons filed on 31 August 2015, and amended on 7 September 2015, the plaintiff seeks orders to the following effect: 1. a declaration that the defendant is incapable of managing her affairs (within the meaning of section 41 of the NSW Trustee and Guardian Act 2009 NSW) in respect of proceedings, between the same parties, pending in the District Court of NSW; and 2. orders providing for the NSW Trustee to be appointed the defendant's "financial manager" (pursuant to sections 40-41 of the NSW Trustee and Guardian Act 2009) and (pursuant to Part 7 Division 4 (rules 7.13-7.18) of the Uniform Civil Procedure Rules 2005 NSW or upon an exercise of the inherent, protective jurisdiction of the Supreme Court) her tutor for the purposes of the District Court proceedings. 1. The jurisdiction of the Supreme Court, upon an exercise of the Court's inherent protective jurisdiction, to appoint a tutor for a party engaged in proceedings in the District Court may be taken as established by the judgment of Young CJ in Eq in Re P [2006] NSWSC 1082, approved by the Court of Appeal in Bobolas v Waverley Council [2012] NSWCA 126 at [58] and [60]. 2. The novelty of the plaintiff's application, at the time these Supreme Court proceedings were commenced, has been overtaken by the publication of detailed reasons for judgment in A v A [2015] NSWSC 1778 on 27 November 2015. It is not necessary, in the current judgment, to repeat the discussion of principles set out there. 3. The current proceedings have an additional complication because of the possibility that orders made by the Court of Appeal, consequent upon F v K [2014] NSWCA 39 on 7 March 2014, in the course of (and affecting) the District Court proceedings, may need to be reviewed in light of the earlier judgment of the Court of Appeal in Murphy v Doman (as Representative of the Estate of the Late Min Simpson) (2003) 58 NSWLR 51, in the event that a finding is made that the defendant is incapable of managing her affairs. THE DISTRICT COURT PROCEEDINGS 1. Before turning to the defendant's capacity for self-management, closer attention needs to be given to the nature, and course, of the District Court proceedings. 2. The parties to the present proceedings occupy converse roles in the District Court proceedings. In those proceedings, the present defendant has sued the present plaintiff (behind whom is an insurer) for damages for personal injuries suffered by her (as a pedestrian) in a motor vehicle accident that occurred on 10 November 2008. 3. For convenience, in this judgment I adhere to the designations the parties have for the purpose of these, Supreme Court proceedings. Thus it is that, in the context of the District Court proceedings, I speak of the defendant suing the plaintiff for damages in negligence. 4. The District Court proceedings (numbered 2011/208748) were commenced by a Statement of Claim filed on 27 June 2011, at a time when the defendant was represented by a solicitor. 5. The Statement of Claim recites that, by a letter dated 1 May 2009, the compulsory third party insurer for the plaintiff's vehicle had admitted liability to the defendant pursuant to the Motor Accidents Compensation Act 1999 NSW, section 81. 6. By a Defence filed in the District Court proceedings on 5 August 2011, the plaintiff admitted that fact; but denied the "injuries, loss and damage, as alleged" in the Statement of Claim and, alternatively, alleged that the "loss, injury or damage suffered" by the defendant was caused by her own contributory negligence. 7. The District Court proceedings have stalled in circumstances in which, having previously instructed several firms of solicitors, the defendant now represents herself, as a litigant in person, in those proceedings, as well as these. 8. After discussions with the NSW Trustee, the plaintiff commenced these, Supreme Court proceedings, with a view to securing, via appointment of a tutor, an opportunity to engage in meaningful settlement discussions vis á vis the District Court proceedings or, at least, to allow those proceedings to proceed, in an orderly way, to a trial. ASSESSMENT OF THE DEFENDANT'S CAPACITY FOR SELF-MANAGEMENT 1. In the course of the current proceedings, I have had several opportunities to observe the defendant personally, as a litigant in person, in her opposition to the plaintiff's application for protective orders; in her protestation of present fitness to manage her own affairs, including the District Court proceedings; and in her complaints about delays in resolution of the District Court proceedings. She appeared before me, in person, on each of 14, 16 and 21 September 2015, 18 December 2015 and 10 February 2016. 2. Without objection on the part of the plaintiff, the defendant has adduced as evidence in the current proceedings a large volume of documents bearing upon her capacity for self-management, her life before and after the motor vehicle accident that changed everything for her, and the conduct of the District Court proceedings. 3. The defendant has also, from time to time, sent to my chambers (as litigants in person are prone to do) unsolicited correspondence bearing upon events affecting her. 4. As a matter of lay observation, I am bound to say that, although the defendant presents as a charming and well-groomed woman, she appears to me to lack the rationality of thought that, in common experience, one associates with capacity for self-management in the ordinary affairs of life, and in management of court proceedings. Obsessed with detail, she cannot readily focus, or remain focused, on the relevant. She is obsessed with her fall from grace, as she sees it, following the motor vehicle accident in which she was injured; isolated; unable now to engage constructively with a community within which she had prominence and prospects; always living with chronic depression and despair. Her presentation of evidence, and submissions, in opposition to the plaintiff's invocation of the protective jurisdiction has involved cluttered thought, and obsessive repetition, combined with recurrent pleas for help and understanding. 5. Medical evidence adduced by the plaintiff, in the current proceedings, is to the similar effect, but with a darker dimension. 6. For the purpose of the District Court proceedings, the plaintiff has been advised by an expert psychiatrist who has expressed an opinion that the defendant suffers from psychosis and is a danger to herself and others. 7. Caution is required in the assessment of this and related opinions, expressed in reports dated 25 and 27 August 2015 without the benefit of a recent psychiatric examination, prompted by a review of an email dated 2 January 2015 addressed by the defendant to a third party. 8. In that email the defendant spoke of her personal experiences, including her conduct of the District Court proceedings, in a manner that might reasonably be thought to bear, adversely, upon her capacity for self-management. 9. The email caused, in the plaintiff's doctor, a radical reassessment of the defendant's medical condition. 10. Having reviewed the contents of that email, and having assumed that the defendant's statements in it are truthful, he expressed an opinion that the defendant was experiencing an elaborate set of paranoid delusions as a result of a paranoid psychotic illness, probably schizophrenia. 11. Specifically, he expressed opinions to the effect that: the defendant does not have the capacity to understand, manage or present her case in the District Court proceedings; the pressure of engagement in those proceedings may harm her physical and mental health; she may be at risk to herself and others involved in the case; she would not be able to understand her obligation to give truthful evidence at a trial of the proceedings; and her delusional state would impact adversely upon her ability to comprehend any advice given to her or to give rational instructions; and she is not capable of rationally assessing any settlement proposal on its merits, but is exposed to a significant risk that involvement in a long and complex trial of the District Court proceedings would harm her psychological health. 12. Armed with medical evidence of this character, the plaintiff seeks, in aid of the present proceedings, orders designed to compel the defendant to submit to a medical examination. 13. Having reviewed the evidence placed before me, and had an opportunity on more than one occasion to observe the defendant in person, I am satisfied: that she is incapable of managing her own affairs (not limited to the conduct of the District Court proceedings); that a declaration to that effect should be made under section 41 of the NSW Trustee and Guardian Act; and that the whole of her estate should be committed to the NSW Trustee for management under that Act. 14. If, as may well be the case, the defendant ought to be the subject of an updated medical examination, that can, and prima facie should, occur under the supervision of the NSW Trustee as her protected estate manager, without any necessary involvement of those advising the plaintiff. 15. In accordance with the procedures adopted in A v A [2015] NSWSC 1778, I propose to allow the NSW Trustee, after its appointment as protected estate manager, an opportunity: to engage with the defendant personally; to review the evidence adduced in these proceedings, and available as a consequence of the District Court proceedings; to engage with the plaintiff's representatives in any negotiations that may be appropriate; and, in that context, to consider whether it will, or will not, consent to its appointment as tutor for the defendant in the District Court proceedings. 16. In contending for appointment of the NSW Trustee as a tutor for the defendant in the District Court proceedings, the plaintiff urges upon the Court the view that the NSW Trustee would be subject to little practical risk as to costs because: (a) the plaintiff has admitted that a duty of care was owed to the defendant, and breached; (b) the plaintiff's plea of contributory negligence will not defeat the defendant; (c) causation may be an issue with respect to some features of the defendant's claim for damages, but there will nevertheless be a verdict in favour of the defendant for some amount; (d) the defendant's case on quantum needs to be properly prepared; (e) the plaintiff undertakes not rely on any prior costs offers that have been made in the District Court proceedings; and (f) the plaintiff will not rely on any costs provisions under the UCPR that might constrain the award of costs in the event that the defendant is unable to clear various thresholds. 17. For reasons canvassed in A v A, I am unlikely to compel the NSW Trustee to serve as a tutor for the defendant in the District Court proceedings absent comprehensive protection of the NSW Trustee from exposure to orders for costs. Although some refinement of that protection may be required, I take the plaintiff's contentions to be an acceptance of the propriety of such protection being provided. 18. In reflecting on the defendant's case (in the context of the current proceedings, the District Court proceedings and the proceedings the subject of the Court of Appeal's judgment of 7 March 2014) a question which has troubled me, and which is beyond my ability to make any material finding, is whether, at the time of the Court of Appeal's judgment and at other times during the pendency of the District Court proceedings, reaching back to their commencement, the defendant (notwithstanding her legal representation in those proceedings without a tutor) was incapable of managing her affairs so as to render any judgment against her irregular, applying the reasoning of the Court of Appeal in Murphy v Doman (2003) 58 NSWLR 51 at 58-61. 19. In response to my invitation to the plaintiff to address that question, counsel for the plaintiff, correctly, submitted that I should leave it, in the first instance, to the NSW Trustee, as the defendant's protected estate manager, with the benefit of any up-to-date psychiatric evidence it may obtain and after a full consideration of the defendant's circumstances, together with the possibility that, via a tutor, the defendant might make a fresh MAS application under section 62(1)(a) of the Motor Accidents Compensation Act 1999 so as to circumvent the effect of the Court of Appeal's judgment of 7 March 2014. Such an application would not, however, of itself, disturb cost orders made in the plaintiff's favour by the Court of Appeal. 20. To my observation, for what it is worth, on the materials available to me, the possibility cannot be excluded that the defendant has been unable to manage her affairs, and in need of an exercising of protective jurisdiction, for some years, not just recently. Nor do I exclude the possibility that, prior to the motor vehicle accident, she had good prospects in life, not now available to her. Although she is presently unable to manage her affairs, on account of a disability, her claims about the course of her life, and the effect of the motor vehicle accident upon her, need to be respected, and carefully assessed. That is a task, in the first instance, for the NSW Trustee to perform, if it will. 21. If I am not mistaken, the defendant presently has in mind agitating the District Court for an award of interim damages under section 82 of the Civil Procedure Act 2005 NSW. Whether the plaintiff's insurer will accommodate such an award, I cannot say. This too is a topic for the NSW Trustee's consideration. It might provide an avenue for funding work that needs to be done in management of the defendant's estate so that the plaintiff's object of bringing the District Court proceedings to an orderly conclusion can be attained. ********** 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: 11 May 2016