FEDERAL COURT OF AUSTRALIA

Vrkic as Liquidator of V Health Plus Corporation Pty Ltd v Singh (No 2) [2020] FCA 930

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application filed on 3 June 2020 be dismissed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from transcript)

GLEESON J:

1    This is an application by Brendan Hollins and the first defendant, Ms Singh, for an order pursuant to r 9.63 of the Federal Court Rules 2011 (Rules) appointing Mr Hollins as Ms Singh’s litigation representative in this proceeding. Mr Hollins is Ms Singh’s son. The application was supported by an affidavit of Mr Hollins affirmed on 4 June 2020.

Legal Framework

2    Rule 9.63 states:

(1)    A party or an interested person may apply to the court for an order appointing a person as litigation representative.

Note:    Interested person, in relation to a person under a legal incapacity, is defined in the Dictionary.

(2)    A copy of the application must be served on the person under a legal incapacity.

(3)    The application must be accompanied by an affidavit stating:

(a)    that the person for whom the appointment is to be made is a person under a legal incapacity and giving details of the nature of the legal incapacity; and

(b)    that the proposed litigation representative:

(i)    has consented, in writing, to the appointment; and

(ii)    is a person who, under rule 9.62, may be appointed as a litigation representative.

Note:    For service on a person under a legal incapacity, see rule 10.09.

3    The Dictionary to the Rules defines “interested person” for a person under a legal incapacity to mean, for a mentally disabled person, the person’s guardian. The dictionary defines “person under a legal incapacity” to mean a minor or a mentally disabled person. The expression “mentally disabled person” is defined to mean: ‘A person who, because of a mental disability or illness, is not capable of managing the person’s own affairs in a proceeding.’

4    The Dictionary further defines “guardian” of a mentally disabled person or the estate of a mentally disabled person to include a person entrusted under a law of the Commonwealth or of a State or Territory with the care or management of the person or estate. In L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 at [23] and following, the Full Court explained the law relating to the appointment of a litigation guardian under the Federal Magistrates Rules 2001. Relevantly, the Full Court said (at [26] to [27]):

[26]    There is a presumption of competence unless and until the contrary is proved, that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister [[2003] 3 All ER 162] at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). Where it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.

[27]    The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but, in almost every case, the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):

‘even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists’.

Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Limited v Manufacturers’ Mutual Insurance Limited [2005] NSWSC 709; and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available, as, for example, where a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example: Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).

5    In Dauguet v Centrelink [2015] FCA 1212, Murphy J relied on the Full Court’s statements at [26] and [27] in refusing an application for the appointment of a litigation representative. His Honour was not satisfied that the appellant, for whom the appointment was sought, suffered a legal incapacity.

Evidence of Guardianship

6    Mr Holland’s evidence including a document entitled Certificate of Appointment of Enduring Guardian in New South Wales. The document states, relevantly:

On 17 January 2018, I, Simran Roselyn Singh, of 48 Hay Street, Collaroy, 2097 in the State of NSW and DOB 29 June 1967 (Appointor) appoint Brendan Hollins (my son) of 48 Hay Street, Collaroy, 2097, in State of NSW, as my Enduring Guardian to be effected immediately. I do not appoint a substitute guardian and revoke any verbal or written deed of Enduring Guardianship, prior to this date.

Should I become incapable of making my own personal decisions (due to current serious illness), I authorise my Enduring Guardian to exercise powers to act in accordance with Part 5 of Guardianship Act 1987.

Furthermore, I wish my Enduring Guardian to make decisions and act in consultation with my Enduring Power of Attorney; medical advice of treating medical specialists; for any other personal or any business related matter, act on advice of appointed professionals. My enduring guardian shall:

...

(4)    Instruct, make decisions in relation to all my personal and business affairs; where necessary appoint professionals (legal and accounting) and authorise Dr Mirza Baig to act on my behalf for the LEC or any other in relation to V Health Plus business, during periods of my medical treatments or recoveries.

...

7    Part 5 of the Guardianship Act 1987 (NSW) (Guardianship Act) concerns medical and dental treatment. It is not presently relevant. Part 2 of the Guardianship Act concerns the appointment of enduring guardians. In that Act, “enduring guardian” means a person appointed as an enduring guardian under Pt 2.

Section 6E of the Guardianship Act

8    Section 6E of the Guardianship Act sets out the functions of enduring guardians, including, relevantly, subs (e), “any other function relating to the appointor’s person that is specified in the instrument”.

Mental Disability

9    Mr Hollins states that, in about 2006, Ms Singh was diagnosed with a brain tumour, for which she was treated by surgical removal of the tumour, followed by radiotherapy and chemotherapy. In about 2016, Ms Singh had a recurrence of blackouts leading to a referral to a neurologist, Dr Ian Sutton. Despite treatment, Ms Singh’s condition worsened and she was referred to a psychiatrist, Dr Fukui. Since the death of Ms Singh’s father in 2018, Mr Hollins has made care arrangements for his mother and attended to her business affairs. According to Mr Hollins, the loss of her father added to Ms Singh’s mental and physical deterioration and, to his observation, her health has been in a fragile state.

10    In about February 2019, Ms Singh’s aunt passed away in Canada. According to Mr Hollins, this event had a severe impact on Ms Singh’s mental health. According to Mr Hollins, in mid-April 2019, Ms Singh had a psychotic episode. On 21 July 2019, she was admitted to emergency at the Northern Beaches Hospital and she remained in the mental health care unit from 22 July 2019 to 5 August 2019.

11    She was then transferred to the care of Brookvale Community Hospital until 29 September 2019, followed by an “admission to an acute care program which has continued since”.

12    Mr Hollins annexed to his affidavit the following documents:

(1)    form entitled “Evidence of psychosocial disability form”, completed by Dr Thomas Springer on 2 July 2019;

(2)    letter from Dr Peter Jones, psychiatrist, dated 29 July 2019;

(3)    letter from Dr Peter Jones, dated 31 July 2019;

(4)    letter from Ms Jan Alexander, a clinical mental health provider, dated 24 December 2019;

(5)    Mental Health Triage Form completed by Dr Christel Romano, general practitioner, dated 20 March 2020. The form states that Ms Singh is a risk of suicide. The form requests the following services: short term individual psychological therapies, clinical care coordination for severe and complex mental illness;

(6)    letter from Dr Lakshmi Kadaba, general practitioner, dated 22 March 2020;

(7)    letter from Ms Alexander to the Court, dated 22 March 2020;

(8)    letter from Ms Alexander to Ms Singh, dated 19 May 2020; and

(9)    referral letter from Dr Greg Cesco, general practitioner, to Dr Sutton, dated 19 May 2020.

13    Dr Springer appears to work at the same medical centre as Dr Baig. He records a different history from Mr Hollins. He states that Ms Singh has been a patient since 2003 and as at July 2019 had no past psychiatric history. Dr Springer states Ms Singh is mentally impaired and unable to make decisions or provide instructions of her self-care and well-being independently. Dr Jones’ 29 July 2019 letter is addressed to the presiding magistrate Land and Environment Court of New South Wales. It confirms that Ms Singh was then an inpatient in Northern Beaches Hospital and Dr Jones was her treating doctor.

14    Dr Jones does not express an opinion to the effect that Dr Singh was at that time a mentally disabled person. Rather, Dr Jones says:

She is unable to be present in court at the current time, as she continues to require inpatient treatment and I cannot safely authorise leave off the premises. As such, she would not be able to provide instructions in the proceedings.

I have recommended that she take leave of absence from work at this stage for the period of 1 month as her cognitive capacity is impaired and she would not be able to function at her usual high level. In addition, returning to work at this time is likely to exacerbate her depressive symptoms and interfere with her recovery as well as potentially placing her at risk of harm to herself. For these reasons I would also recommend that she does not participate in this court hearing (either in person, or by telephone or video link) unless she is ordered by the court.

15    In his 31 July 2019 letter, Dr Jones expresses the opinion that Ms Singh is cognitively impaired as a result of her depressive illness and states that she is not:

At the current time, ... well enough to be able to cognitively participate in the court process and as such would not be in a position to provide instructions in the proceedings (either in person or remotely).

16    The letter concludes:

The recovery from a major depressive illness is unpredictable but I would anticipate that after a further period of hospital treatment, including the ability to engage in psychological therapy and optimising her medication regime, she would then be in a position to both provide instructions in the proceedings as well as being capable to appear as a witness in court to complete the re-examination.

A tentative date for her being discharged from a private hospital facility and therefore being in a position to provide instructions and appear as a witness would be 16 September.

17    Ms Alexander’s stated qualifications are BSW MAASA (acc) MACSW. I infer that she is a social worker. I am not satisfied that Ms Alexander is a qualified medical practitioner. In any event, in her 24 December 2019 letter, Ms Alexander does not express an opinion as to Ms Singh’s mental capacity. Ms Alexander expresses the view that Ms Singh would benefit from hospitalisation and was more relaxed since that suggestion had been discussed.

18    Ms Alexander’s 23 March 2020 letter is addressed to the Court. It states:

I understand that Ms Roselyn Singh has been requested to attend your court in relation to an affidavit she wrote some time ago.

Ms Singh is not in a fit state to attend the court. She has both medical and psychological complications which are contributing significantly to her inability to attend.

Ms Singh is under the care of Dr Ian Sutton, neurologist, at St Vincent’s Hospital Clinic in Sydney. She had a brain tumour removed some years ago that requires on-going treatment. Ms Singh has some cognitive and mental impairment as a consequence of the operation.

In 2019, Ms Singh was hospitalised and Northern Beaches Mental Health Unit from 20th July 2019 until September 2019 with serious mental health issues which were attributed to the toxicity of her neurological medication. Following this long hospitalisation, she was discharged to the care of the psychiatric team at the Brookvale mental health unit and the home nursing service.

Ms Singh was then referred to me for followup psychological care in late October 2019. She has symptoms of extreme anxiety and panic attacks. She continues to consult with me.

Ms Singh is quite definitely not in a fit state to attend court, because of her psychological and her physical/neurological condition.

19    Ms Alexander’s 19 May 2020 email is as follows:

Dear Roselyn,

Please ask your GP to consider the below information....

Roselyn Singh has informed me today that she suffered a seizure last Sunday, 17th May 2020. [The email records matters that it is unnecessary to recount in the written judgment]

She also has a stuffy head, sinusitis, increased asthma symptoms and a cough.

(She is not sleeping well and wakes regularly at 1am with nightmares. Sleep is very disturbed)

I have suggested that she has a COVID-19 test today.

Do you think she requires a follow up consult with her neurologist?

Over to you...

With Kind regards,

Jan

20    Dr Kadaba’s 22 March 2020 letter is addressed “to whom it may concern”. It states that Dr Kadaba had examined Ms Singh that day and states that Ms Singh is suffering from mental health condition. It also states:

On the background of a glioma/brain tumour operated April 2014 and received chemo and radiotherapy

She remains on psychotropic medications and anti-epileptic medications. She remains confused, suffers from phobias, generalised anxiety.

She may not be in a mental state [t]o give evidence in court proceedings.

She regularly sees a nurse psychologist in an acute care in Brookvale Community Care.

She is under the care of a neurologist an[d] psychiatrist.

21    The referral letter from Dr Cesco to Dr Sutton, dated 19 May 2020, says nothing about Ms Singh’s mental capacity. It sets out medications that Ms Singh was then taking, including Valium.

Consideration

22    Mr Simons in his submissions did not take the Court through the steps set out in the Guardianship Act for the valid appointment of an enduring guardian. I will assume for the purposes of this application that Mr Hollins has been validly appointed as an enduring guardian within the meaning of the Guardianship Act. Although the document by which he is appointed enduring guardian is not unlimited as to Mr Hollins’ role and although the functions of an enduring guardian are not unlimited under the Act, I will also assume that Mr Hollins has been entrusted with the care or management of Ms Singh and, therefore, I accept that Mr Hollins is Ms Singh’s guardian within the meaning of the Rules.

23    Even so, I am not satisfied on the evidence that Ms Singh is a mentally disabled person within the meaning of the Rules. The evidence given by Mr Hollins raises more questions than it answers. In particular:

(1)    although the evidence contains assertions that Ms Singh is under the treatment of a psychiatrist, there is no current evidence from a psychiatrist as to her capacity;

(2)    the only psychiatric evidence is from Dr Jones, who anticipated that Ms Singh would be able to give evidence by mid-September 2019;

(3)    I do not place significant weight on Ms Alexander’s opinions, because she is not a qualified medical practitioner;

(4)    the most recent medical evidence, the referral letter from Dr Cesco, does not suggest any incapacity on Ms Singh’s part;

(5)    Dr Kadaba did not conclude that Ms Singh lacked capacity, but only that she may not be in a mental state to give evidence in court proceedings; and

(6)    Dr Springer’s opinion is not current and is based on a materially different history from the account given by Mr Hollins in his affidavit.

24    Further, Ms Singh filed a 43 paragraph affidavit in the proceeding on 7 February 2020 in which she said nothing about a lack of capacity. I note that on 30 March 2020, Ms Singh filed an unsworn affidavit in which she asserts a lack of capacity, but also sets out substantial detail concerning matters apparently intended to be raised by her in her defence. As that affidavit is unsworn, I do not place any weight on it.

25    Accordingly, the application will be dismissed.

Associate:

Dated:    10 July 2020