capacity disputes Maria Demosthenous Anthony Mason Chambers ASK - PowerPoint PPT Presentation

capacity disputes Maria Demosthenous Anthony Mason Chambers

ASK YOURSELF 1.What jurisdiction are you in? 2.What legislation and/or Court Rules apply? 3.What definition of incapacity/considerations apply?

DISABILITY – Rule 4 SCR each of the following is a person under a disability — (a) a child; a person… under a law for the protection of persons suffering from (b) mental or physical disabilities; a person… not physically or mentally able — (c) to manage his or her own affairs ; or (i) (ii) to make rational decisions about taking, defending or settling proceedings (or to communicate decisions to others);

DISABILITY – Rule 2 MCR An infant and any person (whether under statutory protection or not) who by reason of physical or intellectual impairment is unable to give sufficient instructions to conduct or compromise an action.

DISABILITY - Cases GENERAL PRINCIPLES – no universal test – disability is issue and time specific – a person can have capacity for one action but not for another

Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 Guthrie v Spence (2009) 78 NSWLR 225 Dalle-Molle v Manos (2004) 88 SASR 193 Gibbons v Wright (1954) 91 CLR 423 Slaveski v Victoria [2009] 25 VR 160

Admission to a psychiatric facility is not conclusive proof of incapacity but may be relevant Slaveski v Victoria [2009] 25 VR 160

Not essential for a Court to consider medical evidence although it usually does Masterman-Lister v Brutton & Co [2003] 1 WLR 1511 H v H [2015] NSWSC 837 Slaveski v Victoria [2009] 25 VR 160

Disability is not about whether a person is a competent litigant Badcock v The State of South Australia [2007] SADC 36

As the standard of capacity is time and issue specific , only the Court can be the judge of that in all the context and the issues of the case. Goddard Elliot (a firm) v Fritsch [2012] VSC 87

 Does party understand that he or she could lose the case?  Is effect of evidence such that lay person would form the view that the claim would fail?  Is party capable of assessing any settlement proposal on its merits?  If trial is long and complex , is there a risk that the stress and pressure of the litigation might harm the party’s physical or mental health? Slaveski v Victoria [2009] 25 VR 160 Hollidge v Pomeroy [2014] SASC 45

MANAGER / LITIGATION TRUSTEE GUARDIAN Court Rules Aged and Infirm Persons Property Act 1940 (SA)

s7 Aged and Infirm Persons Property Act 1940 (SA) (1) Where…person is, by reason of age , disease , illness , or physical or mental infirmity — (a) unable, wholly or partially , to manage his affairs ; or (b) subject to, or liable to be subjected to, undue influence …; or (c) otherwise in a position which in the opinion of the court renders it necessary in the interest of that person or of those dependent upon him that his property should be protected… the court may make a protection order…

(2) Where it is made to appear…that any person is, by reason of his taking or using in excess alcoholic liquors , or any intoxicating, stimulating, narcotic, or sedative drug , unable, wholly or partially , to manage his affairs, whether such inability is continuous or occasional , the court may make a protection order…

Highfold v Howard [2014] SASC 67

SOLICITOR OBLIGATIONS Australian Solicitor Conduct Rules A solicitor must follow a client’s lawful , proper 8.1 and competent instructions.

As a lawyer is an officer of the court, it is their primary responsibility to be reasonably satisfied that the client has the mental capacity to participate in the proceedings and to instruct. Goddard Elliot (a firm) v Fritsch [2012] VSC 87 at [549]

Australian Solicitor Conduct Rules A solicitor’s duty to the court and the 3.1 administration of justice is paramount and prevails to the extent of inconsistency with any other duty .

Goddard Elliot (a firm) v Fritsch [2012] VSC 87

s78(3) - SCR A party who becomes aware that another party is a protected person and is not represented by a litigation guardian as required by this rule must inform the Court of that fact.

ROLE OF THE COURT Manning v Russell (2015) 123 SASR Atkins v Atkins [2011] SASC 85

Rule 9(2)(c) - SCR The Court has a general discretion to direct, if there is good reason to do so, that a proceeding be heard wholly or partly in private or that the public be excluded from the whole or a particular part of a hearing.

IS THERE INCAPACITY…?? “it depends”