Murphy v Doman [2003] NSWCA 249 (11 September 2003)

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Murphy v Doman [2003] NSWCA 249 (11 September 2003)

Last Updated: 15 September 2003

NEW SOUTH WALES COURT OF APPEAL

CITATION: Murphy v Doman [2003] NSWCA 249

FILE NUMBER(S):

40996 of 2002

HEARING DATE(S): 22/05/03

JUDGMENT DATE: 11/09/2003

PARTIES:

David Gregory Murphy

v

Ronald Peter Doman (As Representative of the estate of the late Min Simpson) and Anor

JUDGMENT OF: Meagher JA Handley JA Tobias JA

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 8149/98

LOWER COURT JUDICIAL OFFICER: Knight DCJ

COUNSEL:

A: In Person

R: M Barko

SOLICITORS:

A: N/A

R: Boyd House & Partners Solicitors

CATCHWORDS:

PRACTICE AND PROCEDURE: Litigants in person - District Court Rules Pt 45 - Test of incompetence - Guardians ad liteus

LEGISLATION CITED:

Mental Health Act 1990 (NSW)

District Court Act s. 127 (2)(c)

District Court Rules Pt 45

DECISION:

1. Leave to appeal granted subject to the notice of appeal being filed within 21 days; 2. Appeal allowed with costs; 3. Judgment for the plaintiff for $13,970 and the orders for costs made by Knight DCJ on 18 September set aside; 4. The assessment of damages is remitted to Knight DCJ to be further heard and determined by him, on the existing evidence, according to law; 5. The respondents to have a certificate under the Suitors' Fund Act.

JUDGMENT:

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40996 of 2002

MEAGHER JA

HANDLEY JA

TOBIAS JA

Thursday, 11 September 2003

DAVID GREGORY MURPHY V RONALD PETER DOMAN (AS REPRESENTATIVE OF THE ESTATE OF THE LATE MIN SIMPSON) & ANOR

FACTS

The appellant (the plaintiff below) sued the respondents (the defendants below) in conversion. He appeared in person, and his action came before Knight DCJ on 17 February 2000. Separate trials were ordered on the issues of liability and damages. Knight DCJ found for the appellant on the liability issue, and the proceedings were stood over for a hearing on damages.

On the issue of damages, Knight DCJ heard the evidence for five days from 29 January 2001 to 2 February 2001, and then reserved judgment. He proposed that the parties should file further written submissions on the question.

The appellant spent the next eight months endeavouring to comply with Knight DCJ's directions as to the filing of submissions. At all times the appellant was in default. Knight DCJ listed a directions hearing on the matter for 6 August 2001. During the course of that hearing, the appellant had on his person the submissions that were required to be filed. He declined to file or tender those submissions. Knight DCJ then reserved judgment on the issue of damages without the benefit of the appellant's written submissions.

At the time, the appellant was suffering from a psychosis arising out of a pre-existing condition of schizophrenia.

HELD per Meagher JA (Tobias JA agreeing)

The trial judge, who acted at all times with great patience and kindness, can hardly be criticized for taking the course he did. The fact was, nonetheless, that the appellant had his litigation adjudicated upon without being heard. This must be rectified. [14]

HELD per Handley JA (Tobias JA agreeing)

1. Under the District Court Rules, the test of incompetence is whether the litigant is capable of managing his or her own affairs. There is no universal test for determining whether a person is capable of managing his own affairs. Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, referred to. [18]

2. The cases do not consider the level of mental capacity required for a `competent' litigant in person, but it cannot be less than that required to instruct a solicitor. It should be greater, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation. [20]

3. The presumption of sanity applies unless and until the contrary is proved. This means that a person of full age is presumed capable of managing his or her affairs. [21]

4. The appellant's behaviour on 6 August, in the light of evidence available, showed that he was incapable of managing his own affairs, and in particular, the legal proceedings he was attempting to conduct on his own behalf. The proceedings on 6 August were therefore conducted in breach of DCR Pt 45 r 5(3) because the appellant was acting without a tutor. [22-23]

5. The application of r 5(3) to an incompetent person who seeks to litigate in person will involve practical difficulties. Whatever the practical difficulties, the court cannot ignore the prohibition in r 5(3) when it knows that a litigant in person is not capable of managing his own affairs. If a tutor cannot be appointed the court may have to stay the proceedings until the litigant recovers or a tutor can be appointed. [37]

ORDERS

i. Leave to appeal granted subject to the Notice of Appeal being filed within 21 days;

ii. Appeal allowed with costs;

iii. Judgment for the plaintiff for $13,970.00 and the orders for costs made by Knight DCJ on 18 September 2001 set aside;

iv. The assessment of damages is remitted to Knight DCJ to be further heard and determined by him, on the existing evidence, according to law;

v. The respondents to have a certificate under the Suitors' Fund Act.

IN THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40996 of 2002

MEAGHER JA

HANDLEY JA

TOBIAS JA

Thursday, 11 September 2003

DAVID GREGORY MURPHY v RONALD PETER DOMAN (AS REPRESENTATIVE OF THE ESTATE OF THE LATE MIN SIMPSON) & ANOR

Judgment

1 MEAGHER JA: This is a most unusual `appeal' from the District Court (Knight DCJ), who made certain orders on 18 September 2001. I use the word `appeal' in inverted commas, because it seems to me that, properly viewed, it really is an application for prerogative relief.

2 The "appellant", Mr Murphy, appeared before us in person, as he had on many occasions in the District Court.

3 He had experienced litigation which took a curious course. He imagined that he was a tenant of Mr Doman, who denied the existence of the tenancy of a shed. In accordance with his belief, he maintained an enormous collection of goods in the shed: clothes, papers and objets. Mr Doman, believing no tenancy existed, disposed of the goods and Mr Murphy sued him in conversion. The matter came before his Honour Judge Knight.

4 His Honour tried the case in two parts: first a hearing as to the existence of the alleged tenancy, and secondly as to the damages if any payable by Mr Doman.

5 On the first issue, his Honour heard all the evidence on the question of liability, which took four full days, in mid-February 2000. On 26 April 2000 his Honour gave judgment on this issue in favour of Mr Murphy. He then gave directions for the hearing of the issue of damages.

6 On the issue of damages, his Honour heard the evidence for five days from 29 January 2001 to 2 February 2001, and then reserved judgment. What his Honour proposed to do was to receive written submissions from both parties on this question.

7 The next eight months were spent endeavouring to comply with the Judge's directions about the filing of submissions. At all times the plaintiff, Mr Murphy, was in default. Eventually, on 6 August 2001 his Honour listed a directions hearing before him on the matter.

8 At this hearing, an apparently extraordinary event occurred. Mr Murphy turned up, unrepresented as usual, with written submissions of about 350 pages (as yet, of course, unfiled). He never did file them, or tender them to either the Court or his opponent. He simply retained them. The exchange between Mr Murphy and his Honour on this matter should be quoted in so far as it is presently relevant. It is as follows:

"HIS HONOUR: This matter of Murphy and Simpson, Mr Murphy, I haven't received any written submissions from you?

PLAINTIFF: Your Honour, I've done the submission and ---

HIS HONOUR: Do you have them there?

PLAINTIFF: I don't wish to tender them. I'd rather just leave the whole thing. It's gotten too much for me, your Honour. It has become too much for me.

HIS HONOUR: Alright ---

PLAINTIFF: I've worked on the submissions and was concerned about credibility and thought I'd rather just ---

HIS HONOUR: What do you ask me to do in the matter?

PLAINTIFF: I --

HIS HONOUR: Can you keep your voice up, I'm having a bit of trouble hearing you.

PLAINTIFF: I'll throw myself on the mercy of the Court, that's just -"

Before us, Mr Murphy explained that he would have tendered the documents if ordered to by his Honour, or even if invited to, but that his psychological state was so disturbed that he felt frozen into immobility.

9 In this regard, and unknown to his Honour at the time, Mr Murphy since at least 2 August 2001 had been suffering, according to the medical evidence tendered before us and not for the first time, from a psychotic illness in which he had lost touch with reality. The state and severity of his illness at this time led to him being admitted to The Rozelle Hospital as an involuntary patient from 8 August 2001 to 14 September 2001. For four weeks of that period he was scheduled under the Mental Health Act 1983. His aberrant conduct on 6 August was clearly explicable by his illness.

10 At the hearing on 6 August his Honour heard some desultory oral submissions from Mr Murphy which obviously did not do justice to the case that he wished to advance. His Honour then reserved his judgment on the issue of damages.

11 On 17 September 2001, some two days after he had been discharged from The Rozelle Hospital, and with knowledge that the matter was to be listed for judgment the following day, Mr Murphy wrote to his Honour referring to his medical condition and seeking to then file and serve the written submissions which he had failed to file or tender at the hearing on 6 August 2001. On 18 September 2001, in response to Mr Murphy's application to tender his written submissions, his Honour delivered a judgment detailing the relevant history of the matter and ultimately holding that it was too late for the submissions to be filed at that stage. His Honour noted that Mr Murphy had had since 2 February 2001 to prepare and file written submissions, that he had not on 6 August 2001 sought any further extension of time to file such submissions and that a litigant in person should not be placed in a better position than a party who has legal representation. He thus held that it would make a mockery of the civil procedures of the Court and generally were he to grant Mr Murphy leave to tender his written submissions.

12 His Honour then delivered his reserved judgment on the issue of damages which had been prepared before he received Mr Murphy's letter of 17 September 2001. It is clear that he did so without the assistance of any submissions from Mr Murphy. He gave judgment in the matter on 18 September 2001, in favour of Mr Murphy, giving him a verdict of $13,970, composed of a capital sum of $8,950.00 and interest in the amount of $5,020.00. Of the sum of $8,950.00, an amount of $3,000.00 represented exemplary damages.

13 What his Honour did not, apparently, know (at least prior to 17 September 2001) was that since 2 August 2001 Mr Murphy had been suffering from a recurrence of a psychotic illness arising out of a pre-existing condition of schizophrenia. This, to some extent, explains Mr Murphy's reference in the passage from the transcript quoted in [8] above to things "getting too much for me".

14 His Honour can, therefore, hardly be criticized for taking the course he did. Indeed, during a very tortuous case his Honour at all times acted not only fairly but with great patience and kindness. However, the sad fact is that Mr Murphy had his litigation adjudicated upon without being heard. This must be rectified.

15 The orders which I propose are as follows:

i Leave to appeal granted subject to the notice of appeal being filed within 21 days.

ii Appeal allowed with costs.

iii Judgment for the plaintiff for $13,970 and the orders for costs made by Knight DCJ on 18 September 2001 set aside.

iv The assessment of damages is remitted to Knight DCJ to be further heard and determined by him, on the existing evidence, according to law.

v The respondents to have a certificate under the Suitors' Fund Act.

16 HANDLEY JA: This matter came before the Court on a summons by the then plaintiff for leave to appeal from the reserved judgment of Knight DCJ of 18 September 2001. The Judge assessed damages at $8,950 and after including pre-judgment interest, he entered judgment for the plaintiff for $13,970 and made orders for costs.

17 Leave to appeal is required because it has not been shown that the proposed appeal involves a matter at issue amounting to $100,000 or more (District Court Act s 127(2)(c)).

18 The proceedings arise out of a lease of a garage at 3/55 King Street, Wollstonecraft by the late Mrs Min Simpson to the plaintiff on 14 July 1994. The plaintiff used the garage for the storage of goods.

19 On 21 May 1995 the defendant Mr Ronald Doman, a son of the late Mrs Simpson, who held her power of attorney, gave the plaintiff a notice to quit as from 21 July. The plaintiff refused to accept the validity of the notice and refused to remove his goods. On 28 and 29 October the late Mrs Simpson and her son took some of the goods to a waste disposal depot. Then between 30 October and 5 November, as they arranged, other goods were removed by charitable organisations. When the plaintiff became aware of these activities he agreed to take away the rest of his goods and he did so on 22 November.

20 The plaintiff sued the defendants for conversion and his action came before the Judge on 17 February 2000 when an order was made for a separate trial of the issue of liability. On 26 April the Judge delivered his reserved judgment and found in favour of the plaintiff. He held that the notice to quit was invalid and had not determined the plaintiff's periodic tenancy. The defendants had therefore converted the goods they had removed or caused to be removed from the garage and were liable in damages for their value. The proceedings were stood over for further hearing on the issue of damages.

21 This took place before the Judge over five days in January and February 2001. At the conclusion of the evidence the Judge directed the defendants to file and serve written submissions on or before 2 March and directed the plaintiff to file and serve written submissions within four weeks of the service of the defendants' submissions. These were filed on or about 9 March but the plaintiff did not file and serve his written submissions. The matter was listed for mention before the Judge on 24 July when he extended time for service of the plaintiff's submissions to 6 August and listed the matter for that day. If the plaintiff's written submissions had not then been filed he would be required to make his submissions orally and the defendants could reply.

22 The plaintiff's written submissions were not received prior to the matter coming before the Judge on 6 August. The parties were heard orally and judgment was reserved.

23 The hearing that day took an unusual course. The plaintiff said that he had done the written submissions and continued:

"Plaintiff: But I don't wish to tender them. I'd rather just leave the whole thing. It's gotten too much for me, Your Honour. It has become too much for me.

His Honour: Alright.

Plaintiff: I've worked on the submissions and was concerned about credibility ...

His Honour: What do you ask me to do in the matter.

...

Plaintiff: I'll throw myself on the mercy of the Court ..."

24 He added that he would rather just leave it all (T 9), that he did not wish to proceed any further although he was not abandoning the case (T 11), that he had worked on the question of his credibility "but since I am not going to present those (written submissions) I'm not going to go into that. Now I'll just leave all of that ..." (T11), that he didn't wish to go into the question of exemplary damages (T 13), and would "just leave it to the Court" (T 14).

25 The matter was listed for judgment on 18 September. That morning the Judge received a letter from the plaintiff apologising for his failure to file his submissions which continued:

"The reason being I was in a state of shock from conclusions drawn by me from the evidence presented by the defendant which is detailed in my submissions. Consequently I sought admission to Rozelle Hospital on August 8th, was made involuntary on August 9th, scheduled for four weeks on Friday August 17th and that order concluded last Friday September 14th."

The solicitor for the defendants received a similar letter.

26 In his letter to the Judge the plaintiff asked for leave to file and serve his written submissions and attached a medical certificate which I have obtained from the file. This was by Dr O'Rourke of Rozelle Hospital who stated that the plaintiff was admitted to Rozelle on 8 August suffering from psychosis, and that he would not be able to work before 8 November. It was dated 14 September. It is clear from evidence in this Court that Mr Murphy attended the emergency department at Concord Repatriation Hospital at 13.25 on 6 August and attempted to have himself admitted as a psychiatric patient. The hospital's psychiatric ward had been closed and he was discharged the same day. He was admitted to Rozelle Hospital as a voluntary patient on 8 August "suffering from a psychotic illness". He was made an involuntary patient on 9 August and on 17 August was the subject of an order by a magistrate detaining him as an involuntary patient until 14 September. A letter from Dr Binie Allen a staff specialist psychiatrist at Rozelle Hospital dated 26 April 2002 states:

"He was unfit to care for himself during this time and became disorganised in his behaviour. He experienced disorganised thinking, bizarre and false beliefs and heard voices that were not present. Mr Murphy's recovery from his illness was slow. He was readmitted to the Rozelle Hospital on 3 December 2001 and discharged on 19 March 2002. He required treatment with electroconvulsive therapy. Mr Murphy's serious psychiatric illness has interfered with his ability to present his submissions to court"

27 A letter from Dr Phillip O'Rourke of 24 October 2002 is the same effect. We also have before us the order of Magistrate Hyde of 17 August 2001 which directed that the plaintiff be detained as a temporary patient until 14 September, having found on the balance of probabilities that he was mentally ill for the purposes of the Mental Health Act 1990 because of delusions and serious disorder of thought.

28 On 18 September the plaintiff appeared before the Judge and sought leave to file his written submissions and the defendants' solicitor objected. In support of his application the plaintiff referred to his time in hospital and the Judge said that he had read his letter of 17 September. After brief submissions from the plaintiff his Honour rejected the tender. The Judge noted that on 6 August the plaintiff had not sought a further extension of time for the filing of his written submissions and said that it was now far too late. The plaintiff had been allowed some six months after 2 February 2001 for this purpose. He continued:

"I accept that he has not been well from 8 August 2001 onwards, and is most unfortunate for him that he has needed to have been admitted to Rozelle Hospital. I'm sorry that his health has been affected in that way. But the fact is that these submissions should have been done months before 8th August 2001. He did not seek on 6 August to extend the time ... I would be making a mockery of the civil procedures in this Court and generally were I to grant Mr Murphy leave to make these further submissions."

29 He then delivered his reserved judgment on quantum and dealt with issues of interest and costs.

30 On 28 October 2002 the plaintiff filed a summons for leave to appeal and a notice of motion for an extension of time for filing the summons. The summons states (p 3 para 6) that Mr Murphy was psychotic on 6 August and had been since 2 August. Strictly this is not evidence but Mr Murphy's attempt to have himself admitted to Concord Hospital as a psychiatric patient on 6 August and his admission at Rozelle Hospital on 8 August is evidence of his previous psychiatric condition because of the retrospective presumption of continuance: Cloverdell Lumber Co Pty Ltd v Abbott [1924] HCA 4; (1924) 34 CLR 122, 137-8.

31 Although we were not referred to DCR Pt 45 dealing with disability the effect of Mr Murphy's mental illness on the proceedings on 6 August and 18 September depends, in part, on those rules. A disable person is defined by Pt 1 r 4(1) as meaning "a minor or an incompetent person" and the latter expression is defined as meaning, so far as relevant, "a person who is not a minor and who is: (i) incapable of managing his affairs". Pt 45 r 2(1) provides, so far as relevant, that "a disable person may not, except by his next friend, bring or make a claim or carry on any proceedings for relief in the Court". There is no evidence that the plaintiff was a disable person when the proceedings were commenced. However r 5(3) provides:

"Where, after the commencement of proceedings, a party becomes an incompetent person, no step in the proceedings shall be taken by or against the incompetent person until a tutor for him has been appointed by the Court".

32 On 18 September the Judge knew that the plaintiff had been admitted to a psychiatric hospital on 8 August and should have realised that he was probably an incompetent person on 6 August. He had certainly been an incompetent person while he was detained in Rozelle Hospital.

33 Under the Rules the test of incompetence is whether the litigant is capable of managing his own affairs. There is no universal test for determining whether a person is capable of managing his own affairs. In Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423, 437-8 Dixon CJ, Kitto and Taylor JJ said:

"The law does not prescribe any fixed standard of sanity as requisite for the validity of all transactions. It requires, in relation to each particular matter or piece of business transacted, that each party shall have such soundness of mind as to be capable of understanding the general nature of what he is doing by his participation ... the mental capacity required by the law in respect of any instrument is relative to the particular transaction which is being effected by means of the instrument, and may be described as the capacity to understand the nature of that transaction when it is explained."

34 The definition of an incompetent person in the Rules reflects the earlier law. See Martin v Azzopardi (1973) 20 FLR 345, 347 per Fox J. At 348 Fox J referred to evidence that the plaintiff was incapable of managing his own affairs and continued:

"If, and as soon as, the plaintiff was in this condition he would be unable to retain a solicitor. That is to say, he would not have the mental capacity to understand the nature of the acts or transactions which he would be authorising."

35 The cases do not consider the level of mental capacity required to be a "competent" litigant in person but it cannot be less than that required to instruct a solicitor. It should be greater because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.

36 There is a presumption of sanity which applies unless and until the contrary is proved. Attorney General v Parnther [1792] EngR 2455; (1792) 3 Bro CC 441, 443 [29 ER 632, 634]; M'Naghten's Case (1843) 10 Cl&Fin 200, 210 [8 ER 718, 722]. This means, in modern terms, that there is a presumption that a person of full age is capable of managing his or her affairs.

37 The plaintiff's bizarre behaviour on 6 August, when he declined to tender the written submissions he had brought to court, did not then alert the Judge or defendants' counsel to the fact that the plaintiff was an incompetent person. However, viewed in the light of the evidence available on 18 September, it showed that on 6 August the plaintiff was incapable of managing his affairs, and in particular the legal proceedings he was attempting to conduct on his own behalf.

38 The proceedings on 6 August were therefore conducted in breach of DCR Pt 45 r 5(3) because the plaintiff was acting without a tutor.

39 The effect of a contravention of the Rules is governed by s 159 of the District Court Act which provides, so far as relevant:

"(1) Where ... at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirement ... of the rules ... -

(a) the failure shall be treated as an irregularity and shall not nullify the proceedings, or any step taken in the proceedings, or any ... judgment or order in the proceedings, and

(b) subject to subsections (2) and (3), the Court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any ... judgment or order in the proceedings, or exercise its powers under the rules to allow amendments and to make orders dealing with the proceedings generally.

(2) ...

(3) The Court shall not set aside any proceedings or any step taken in any proceedings or any ... judgment or order in any proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity."

40 The effect of a similar provision was considered in Balloqui v Balloqui [1964] 1 WLR 82 CA. Divorce proceedings commenced against the wife, who was under a disability, had been carried to decree absolute without a guardian ad litem being appointed for her. She applied to have the decree absolute set aside for breach of the rules requiring such an appointment. Lord Denning MR said at 89:

"... in my judgment a mistake as to the application of rule 66(6) does not make the whole proceeding a nullity or void from the beginning ... If there was any misconduct on the part of the husband the court might well set the decree aside. But the court would not hold it to be a nullity from the beginning. The matter is covered by the general rules of the Supreme Court. Ord. 70 rule 1 says "non-compliance with any of these Rules ... shall not render any proceedings void unless the court or a judge shall so direct, but such proceedings may be set aside either wholly or in part as irregular, or amended, or otherwise dealt with ... as the court or the judge shall think fit". ... I take the view that a mistake about rule 66(6) comes within the general rule that non-compliance with the Rules of Court does not render any proceedings void unless the court so directs. It can be set aside if the court thinks fit."

41 This decision was followed in John v John [1965] P 289 where a decree nisi had been made in proceedings against the wife and an underage co-respondent for whom a guardian ad litem had not been appointed.

42 Thus the breach of the mandatory requirement in DCR Pt 45 r 5(3) did not nullify the proceedings on 6 August but the District Court, and on appeal this Court, can exercise the powers conferred by s 159(1)(b).

43 The plaintiff's disability on 6 August effectively denied him a hearing. Although he was physically present and was free to say whatever he wished, his mental condition prevented him making effective use of his right to be heard. In particular his mental illness prevented him from taking the very simple step of tendering his written submissions to the court.

44 There is nothing to suggest that the plaintiff was an incompetent person on 18 September and there was no further breach of Pt 45 r 5(3) on that occasion. However neither the plaintiff, the defendants' solicitor, nor the Judge realised that there had earlier been a breach of r 5(3) and consideration was not given to the exercise of the court's powers under s 159(1)(b). That task now falls on this Court. I should add that the plaintiff's conduct during the hearing before this Court did not suggest that he was incapable, at that time, of managing his own affairs.

45 The fact that the plaintiff's mental illness prevented him from being effectively heard on 6 August was not the fault of the defendants or the Judge. One can readily understand the Judge's reaction on 18 September when belatedly confronted with written submissions three inches thick as he was about to deliver judgment. One can also understand the attitude of the defendants' solicitor who no doubt was anxious to keep costs down and bring to finality troublesome proceedings by a litigant in person over what might be seen as a small claim. Nevertheless despite knowing of the plaintiff's mental illness and what had happened in court on 6 August, he still objected to the case being re-opened.

46 In his reasons for refusing to re-open the hearing the Judge referred to the absence of any application by the plaintiff on 6 August for a further extension of time for the filing of written submissions. This was not necessary, as the plaintiff had until that day to file his submissions, but in any event his failure to make such as application would have been a manifestation of his mental illness. As such it would be a ground for granting relief not a ground for refusing it.

47 I am not aware of any decision directly in point but relevant analogies are to be found in the cases. In Dick v Piller [1943] KB 497 the Court of Appeal held that a party prevented by illness from attending the hearing had a strong prima facie right to an adjournment. In Grimshaw v Dunbar [1953] 1 QB 408 that court held that a party who did not attend the hearing because of a mistake by a court official had, through no fault of his own, been denied a hearing and the judgment given in his absence had to be set aside.

48 Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 and Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 are decisions to the same effect. They establish that where judgment had been given in the absence of a litigant who has been denied a hearing through no fault of his own and where his absence has been adequately explained, that litigant has a prima facie right to have that judgment set aside to permit a re-hearing on the merits.

49 This plaintiff, without any fault on his part, was denied the substance of a proper hearing on 6 August because he was then incapable of managing his own affairs. On 18 September he was refused a hearing which would have remedied the breach of Pt 45 r 5(3) on 6 August and given him what he had inadvertently been denied on that occasion. This was not a further breach of the rule but the Judge erred in law in refusing the plaintiff's application because in the result he has been denied a proper hearing. If it matters the defendants by then knew that the plaintiff had been mentally ill on 8 August and incapable of managing his own affairs. Compare Hart v O'Connor [1985] UKPC 1; [1985] AC 1000. The plaintiff is therefore prima facie entitled, in the exercise of the powers under s 159(1)(b), to have the judgment of 18 September set aside.

50 It is possible that the extensive written submissions which the plaintiff attempted to tender on 18 September contained nothing of substance which had not been considered by the Judge so that their reception and consideration would not have lead to a different result.

51 However this Court has no way of knowing what the final outcome of a re-opened hearing might be. The further written submissions are not before us, and sensibly we were not invited to find that they could have made no difference. Since a breach of Pt 45 r 5(3) has occurred leading to the denial of the substance of a hearing this Court could only refuse relief if it found that a further hearing in the District Court would not lead to a different result. Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 147; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, 183. This has not been established. The judgment of 18 September must therefore be set aside and the proceedings remitted to the Judge for further hearing. The defendants wrongly opposed the plaintiff's application to re-open and have attempted to support the Judge's decision. In these circumstances the question of imposing terms does not arise.

52 The application of r 5(3) to an incompetent person who seeks to litigate in person will involve practical difficulties. There may be no-one who is willing to accept appointment as tutor. A professional person might have no prospects of being remunerated for his of her work. In any event he or she may be unwilling to accept the risk of being ordered to pay the costs of the other party. In some cases the Protective Commissioner may be willing to accept the appointment. However, whatever the practical difficulties may be, the court cannot ignore the prohibition in r 5(3) when it knows that a litigant in person is not capable of managing his own affairs. If a tutor cannot be appointed the court may have to stay the proceedings until the litigant recovers or a tutor can be appointed.

53 For the above reasons, I agree with the orders proposed by Meagher JA.

54 TOBIAS JA: I agree with Meagher JA and Handley JA.

*****

LAST UPDATED: 15/09/2003