Supreme Court New South Wales Medium Neutral Citation: TA v IA [2016] NSWSC 1912 Hearing dates: 20 December 2016 Date of orders: 20 December 2016 Decision date: 20 December 2016 Jurisdiction: Equity - Duty List Before: Slattery J Decision: Defendant/Respondent ordered to attend medical examination on 5 January 2017. Catchwords: PROCEDURE – interlocutory application by Plaintiff to have Defendant medically examined – an issue in the proceedings is whether the Defendant is under legal incapacity and requires a tutor to conduct certain other District Court proceedings – Defendant proposes to tender medical evidence to establish he does presently have legal capacity – Plaintiff wishes to test the Defendant's medical evidence. Legislation Cited: Protected Estates Act 1983 (NSW) NSW Trustee and Guardian Act 2009, s 41 Uniform Civil Procedure Rules 2005 (NSW), r 7.14 Cases Cited: A v A [2015] NSWSC 1778 IA v TA [2016] NSWCA 179 Category: Principal judgment Parties: Plaintiff: [names not published] Defendant: [names not published] Representation: Counsel: Plaintiff: B. Fitzsimmons Defendants: in person File Number(s): 2015/19513 Publication restriction: No EX TEMPORE Judgment 1. These proceedings are brought in the Court's protective jurisdiction during the Court's vacation period. For convenience on the present motion the Court will use the same pseudonyms for the parties that the Court of Appeal used in the recent appeal in the proceedings: see IA v TA [2016] NSWCA 179. 2. TA brings an urgent motion seeking that IA attend a medical examination that is planned to be conducted by a psychiatrist, Dr Bruce Westmore on 5 January 2017. So far IA, the Defendant in these proceedings and the Respondent to the motion, has declined to attend this medical examination. The matter deserves to be heard during vacation: the proposed medical examination is a procedural step potentially to equip the parties with evidence for the hearing listed before Rein J in March 2017. 3. The proceedings have a complex history, which may be briefly summarised. IA was injured in a car accident some years ago. He brought proceedings for damages for personal injury in the District Court. TA, the defendant in the District Court proceedings, admitted liability in those proceedings. The hearing to assess any damages for which TA may be liable to IA is yet to take place in the District Court. Issues arose before trial as to whether IA had the legal capacity to conduct the proceedings and to give instructions himself. There was a contest in the District Court about whether a tutor should be appointed under Uniform Civil Procedure Rules 2005 ("UCPR"), r 7.14 to conduct those proceedings on IA's behalf. 4. TA ultimately commenced proceedings in this Court in the Protective List of the Equity Division, seeking orders for the management of IA's estate under the NSW Trustee and Guardian Act 2009, s 41. The proceedings were heard in July 2015 before Lindsay J, the Protective List Judge. His Honour declared that IA was incapable of managing his own affairs, ordered that his estate be subject to management under the NSW Trustee and Guardian Act and committed the financial management of the estate to the NSW Trustee and Guardian. Later the NSW Trustee and Guardian consented to being appointed IA's tutor in the District Court proceedings and in certain proceedings that had been brought in the Common Law Division of this Court to transfer the District Court proceedings into this Court. Orders for the appointment of the NSW Trustee and Guardian as IA's tutor were made in both the District Court and Common Law Division proceedings. 5. In November 2015 Lindsay J heard IA's application under the NSW Trustee and Guardian Act s 86 for the revocation of his Honour's July 2015 orders. His Honour made an order on 27 November 2015 dismissing the application and confirming the NSW Trustee and Guardian's position as the manager of the IA's estate. 6. IA sought leave to appeal against Lindsay J's decisions on the grounds of an alleged denial of procedural fairness. After an hearing in June 2016 the Court of Appeal in July 2016 granted leave to appeal and then on appeal set aside Lindsay J's orders and ordered a retrial of the issue of IA's capacity: IA v TA [2016] NSWCA 179. That issue is now listed in this Court for re-trial before Rein J in March of next year. 7. To get ready for that hearing the legal representatives for TA seek to have IA examined by a psychiatrist, Dr Bruce Westmore. UCPR, r 23.4 provides ample power to the Court to require parties to submit to medical examinations where there is a medical issue before the Court for determination. In my view, this is just such a case. 8. IA, the Defendant and the Respondent to the motion, resists the orders sought on the motion on the grounds that: i) he has capacity; ii) the orders that are being sought are a denial of his human rights; iii) he is appealing from the Court of Appeal's decision to the High Court; iv) all the orders in the proceedings have been set aside by Payne JA in the Court of Appeal; and v) a number of other lesser grounds that are enumerated in his written submissions. 9. The hearing before Justice Rein is proceeding and the parties must get ready for that. That is why this application has been brought in the vacation list today and why it must be determined today. The evidence supports the conclusion that the appointed date during the vacation for the medical examination with Dr Westmore on 5 January 2017 will allow a medical report from Dr Westmore to be served by TA in sufficient time for use in the hearing before Rein J. 10. The case for a Court-ordered medical examination of IA at the request of TA is strengthened by the state of the evidence. It is anticipated that IA may rely upon two medical reports of Dr Selwyn M Smith of 10 November 2016 and 24 February 2016, which both reach the medical conclusion that IA has sufficient capacity to give instructions to conduct the District Court proceedings himself, the matter which TA contests. 11. It is likely, as seems to be confirmed in IA's submissions, that IA may rely upon these two reports before Rein J. The case for requiring IA to submit to a medical examination at the request of the other side to test Dr Smith's opinion is persuasive. If a medical examination of IA does not occur the Court will not have the assistance of a full contest of medical experts about the important question of IA's capacity. 12. IA's other arguments are not persuasive. The fact that IA asserts he is of legal capacity is beside the point: that is the matter in contest. No application for leave to appeal to the High Court has yet resulted in any restraint upon the further conduct of these proceedings. I am satisfied that Payne JA has not stayed the orders of the Court of Appeal as IA alleges. I see no basis for IA to contend that his human rights would be denied by making these orders, as the Court's power to order a medical examination here is clear and that power should now be exercised to enable these and the District Court proceedings to progress fairly in the interests of both sides. 13. In my view, the case for compelling a medical examination of IA is strong and I will make the orders sought. On the motion I will therefore order that the respondent, IA, attend a medical examination to be conducted by Dr Bruce Westmore at [time not published] on 5 January 2017 at [address not published]. 14. There is a supplementary matter. In the course of argument it became apparent that IA was concerned that he had not been able and was still unable to pay some of his medico-legal expenses for reports that he had obtained. In light of the fact that liability has long been admitted in the District Court proceedings, and TA, the defendant in those proceedings, is here, I enquired of the legal representatives of TA whether they were prepared to meet those medical expenses. They indicated that they were. I will make orders so that this aspect of the proceedings can be advanced to the advantage of both sides. 15. On this supplementary matter IA submitted that he had already provided invoices for these medico-legal expenses to the other side. But TA's legal representatives claimed that the invoices had not been received. That outcome may perhaps have been occasioned by changes of solicitor or by the fact that the NSW Trustee and Guardian is no longer acting in the matter. But IA says he does have them. So to clear up this misunderstanding I will make a direction for IA to provide the invoices to the legal representatives for TA and for TA to then pay them, if it is clear that they remain unpaid. Conclusion and Orders 1. Accordingly, the Court makes the following orders and directions: 1. On the motion, the Court orders that the Defendant, [name not published], attend a medical examination to be conducted by Dr Bruce Westmore at [address not published] on Thursday, 5 January 2017 at [time not published]. 2. Direct the Defendant provide by Monday, 30 January 2017 such invoices from medico-legal experts that the Defendant has retained and which the Defendant claims are unpaid, together with such material as is available to him to establish that they are unpaid, and to provide the same to the legal representatives of the Plaintiff by 4pm on that day. 3. Direct the Plaintiff by Monday 13 February 2017 to make such direct enquires of the medico-legal experts the subject of Order 2 as are necessary to ascertain whether or not their invoices have been paid and then to pay all unpaid invoices by that same date. 4. Order that the costs of this application will be the successful party's costs in the cause listed for hearing before Rein J. ********** Amendments 27 January 2017 - address and time not published in paras [13] and [16](1). 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: 27 January 2017