ING Bank (Australia) Limited v Clare [2019] NSWSC 1421

Supreme Court New South Wales

Medium Neutral Citation: ING Bank (Australia) Limited v Clare [2019] NSWSC 1421 Hearing dates: 14 October 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Jurisdiction: Common Law Before: Lonergan J Decision: The defendant's application to appoint his sister as a tutor for the proceedings is dismissed. Catchwords: CIVIL PROCEDURE – possession proceedings – application by defendant for appointment of tutor to act in place of defendant – no evidence that defendant is a person under legal incapacity – application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), s 3 Uniform Civil Procedure Rules 2005 (NSW), r 7.13 Cases Cited: HSBC Bank Limited Australia v Chang [2007] NSWSC 1127 Mao v AMP Superannuation Limited [2014] NSWSC 1794 Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 [75] Category: Procedural and other rulings Parties: ING Bank (Australia) Limited (Plaintiff) Joshua Danial Clare (Defendant) Representation: Solicitors: R Lewin (Plaintiff) K Clare Snr (with leave of the Court as spokesperson for the Defendant) File Number(s): 2019/195658 Publication restriction: Nil

Judgment 1. In these proceedings an application has been made for appointment of a tutor to act in that role for the defendant Joshua Danial Clare. As I understand it, Joshua Danial Clare is 37 years old. 2. The proceedings are for possession of a property he owns given failure to make payments pursuant to a mortgage agreement. The property is in Uki, New South Wales, in which I have been informed, the defendant and his father, Kim Clare, reside. 3. Initially application was made for Mr Kim Clare to be appointed tutor. I explained to Mr Kim Clare that this would not be an application that could be acceded to because it is essential that any tutor must be able to certify that they have no interest in the proceedings. In the case where the proposed tutor lives in the premises the subject of the possession proceedings, such a finding could not be made. 4. I note that this matter has been before me as possession list judge on a number of occasions since August this year, and at no time has the defendant Danial Clare attended, although there is a Defence filed dated 2 August 2019 which is apparently signed by him. 5. A tutor may be appointed to represent a person under legal incapacity in accordance with Part 7, Division 4 of the Uniform Civil Procedure Rules 2005 (NSW). Section 3 of the Civil Procedure Act 2005 (NSW) contains an inclusive definition of a person under legal incapacity. 6. Rule 7.13 of the Uniform Civil Procedure Rules defines a person under legal incapacity as including a person who is incapable of managing his or her affairs. 7. Relevant capacity in relation to the conduct of legal proceedings has been said to involve the ability to understand, with relevant legal and expert assistance, and make informed decisions about the litigious issues. In other than exceptional circumstances, relevant incapacity involves actual cognitive impairment and disability. It does not apply to mere linguistic disadvantage or physical ill-health or disability: HSBC Bank Limited Australia v Chang [2007] NSWSC 1127. 8. I note also the statement of Hallen J in Mao v AMP Superannuation Limited [2014] NSWSC 1794 to the effect that where a litigant is self-represented, they will ordinarily lack legal knowledge, court experience and expert assistance, and those potential disadvantages lead to the likelihood that a higher degree of satisfaction about capacity will be appropriate in such a case than where a litigant whose capacity is doubtful is legally represented in the proceedings. 9. The evidence upon which the defendant relies in support of its application to appoint a tutor comprises a medical certificate of a Dr Scott Pearson from Kingscliff Health dated 12 September 2019. That document headed "Referral" simply says: "Joshua does not have legal capacity for the purposes of proceedings in the Supreme Court case 2019/00195658, suffering from depression and anxiety and currently undergoing treatment." Under the heading "Past History", it is stated: "2000 depression/anxiety", and under the heading "Medication", Escitalopram 10mgs tablet, one tab in the morning." 1. The other evidence relied upon is an affidavit of the defendant's father Kim Clare which deposes to his understandable concern as a parent regarding his son, particularly in light of the distress and agitation that his son is suffering in the context of these proceedings, a history of depression and anxiety, which Mr Kim Clare describes as having been present for a long time, becoming exacerbated since 2018; an escalation in anger and agitation from 2016 when the plaintiff originally pursued the defendant for late payment of his mortgage, and, of particular concern, particularly to a parent, a suicide attempt at the home of Mr Kim Clare in May 2018. 2. Mr Clare deposes to observing that the defendant is agitated when discussing the possession claim and turns to anger when asked for details about documents involved in the case, and whilst calmed by his medication gets easily upset and agitated. 3. Mr Clare also deposes to the defendant repeatedly telling him he feels an overwhelming sense of shame, guilt and failure, and thinks he will be judged accordingly by family and friends. He says that this upsets him greatly to the point of breakdown and tears, and at times he cannot talk about the case with his father. 4. Whilst all of those matters are understandably ones that would cause any parent to wish to be able to obtain legal status to assist and intervene in proceedings involving their adult child, the evidence relied upon is insufficient to demonstrate that the defendant is under a legal incapacity. 5. The evidence does not support that the defendant falls into any of the descriptions in subparagraphs (a) to (e) of the definition of a person under legal incapacity. 6. The matters set out in Mr Clare Snr's affidavit and the certificate from the general practitioner indicate understandable distress and anxiety about the proceedings, but they also demonstrate, in particular Mr Clare Snr's affidavit, an understanding of the proceedings, their effect and their requirements and the obligations the defendant has in response to them. 7. The observation by the general practitioner that in his view the defendant has not sufficient capacity to engage in the proceedings is a matter for this Court, not for the general practitioner to express a view. Accordingly, I put that part of the general practitioner's report to one side. 8. In written submissions provided by the plaintiff, it was submitted that the relevant test to be applied is set out in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162 [75]. And that is whether the defendant is 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 those pleadings, if he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law, whether substantive or procedural, should require the interposition of a next friend or guardian ad litem. 9. The position of the plaintiff is that the evidence does not amount to sufficient to show a proper basis for appointment of a tutor for the defendant in the proceedings. 10. The defendant provided written submissions via his sister Melissa Jayne Clare and his father that put a great deal of emphasis on the signing by them of an enduring power of attorney on 9 October 2019. 11. The role of an enduring power of attorney does not correlate to providing to Mr Clare Snr or Ms Clare any legal status in these proceedings, nor does it inform the necessary analysis I have to carry out under the Civil Procedure Act and the Uniform Civil Procedure Rules. The enduring power of attorney document has no relevance at all to the decision I make today. 12. I should mention an email was received from my chambers last week in which reference is made to an attempt to obtain material from the defendant's treating hospital. However, that email does not include anything that persuades me that there is any need or advantage in adjourning this application to await the contents of that material. 13. Accordingly, the defendant's application to appoint his sister as a tutor for the proceedings is dismissed.