MICHAEL NGUYEN v STATE OF SOUTH AUSTRALIA [2024] SASC 32

Applicant: MICHAEL NGUYEN Counsel: IN PERSON (10/08/2023), MR A KERIN (13/09/2023, 16/11/2023, 18/12/2023), MR M KERNOT (13/10/2023) - Solicitor: GROPE HAMILTON LAWYERS Respondent: STATE OF SOUTH AUSTRALIA Counsel: MR W AMBROSE - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 10/08/2023, 13/09/2023, 13/10/2023, 16/11/2023, 18/12/2023 File No/s: SCCIV-17-1089 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. NGUYEN v STATE OF SOUTH AUSTRALIA [2024] SASC 32 Judgment of the Honourable Chief Justice Kourakis 8 March 2024 HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS This was an application brought by the respondent either for an order appointing a litigation guardian for the applicant or for a stay of proceedings until such appointment had occurred. In the underlying proceedings, the applicant claimed that he suffered an immobilising injury following the performance of a surgical procedure at the Royal Adelaide Hospital caused by the negligence of the operating surgeon. Causation was in dispute in those proceedings. For the most part, the applicant’s inability, or unwillingness, to retain and instruct legal representatives stymied the progression of the underlying proceedings. After a series of procedural defaults on the applicant’s part, the Court ordered the applicant to attend for neuropsychological assessments, with a view to discerning his capacity to conduct litigation on his own behalf. The reports generated after such assessments indicated, generally, that the applicant lacked the mental capacity to understand the nuances of litigation, and to provide proper instructions to any legal representative(s) responsible for the conduct thereof. In the event that a litigation guardian should be appointed for the applicant, certain counsel had indicated a willingness to take carriage of the matter. Held, granting the application and ordering the appointment of a litigation guardian for the applicant: 1. In light of the applicant’s impaired intellectual and reasoning capacity, and the deficits in his executive function, the applicant is a person under a legal incapacity. 2. As a person under a legal incapacity, the applicant’s action must be brought by an eligible person as a litigation guardian for the applicant. Uniform Civil Rules 2020 (SA) rr 2.1(b), 23.8(1), referred to. -- 1 of 15 -- Dalle-Molle v Manos (2004) 88 SASR 193; PY v RJS [1982] 2 NSWLR 700; Slaveski v Victoria (2009) 25 VR 160, applied. -- 2 of 15 -- NGUYEN v STATE OF SOUTH AUSTRALIA [2024] SASC 32 Civil: Application 1 KOURAKIS CJ: This is an application by the State of South Australia (‘the State’), the respondent to a personal injury claim brought by the applicant, Mr Michael Nguyen, for an order appointing a litigation guardian for Mr Nguyen, or, in the alternative, a stay of proceedings until such time as a litigation guardian is appointed. 2 On 17 September 2014, Mr Nguyen was admitted to the Royal Adelaide Hospital and underwent drainage of a thoracic syrinx (a fluid filled sac with Mr Nguyen’s spinal cord). His claim in negligence rests on two broad grounds. The first is that it was negligent to perform the procedure at all. This ground raises factual issues as to the history given by Mr Nguyen to his surgeon and as to whether his consent to the procedure was an informed one. The second ground is that the procedure itself was negligently performed. 3 Mr Nguyen claims that, following the procedure, he suffered a substantial reduction in, and diminution of, his mobility, and that he is now wheelchair-bound. The State disputes that the procedure was a compensable cause of Mr Nguyen’s lack of mobility. That defence is based on a partial severance of Mr Nguyen’s spinal cord, suffered as a result of a serious assault in 1995. 4 The State contends that the syrinx was a natural consequence of injuries of the kind sustained by Mr Nguyen in the assault. They are difficult to treat and there are very limited options. The procedure was unsuccessful because the syrinx reaccumulated after several months; again, a common occurrence. The syrinx and the underlying severance of the spinal cord are, on the State’s contention, the causes of Mr Nguyen’s present disability. 5 The summary of Mr Nguyen’s claim is sufficient to expose its complexity. Mr Nguyen’s capacity to engage and grapple with the forensic issue on which he must give instructions, and to make informed choices about the compromise of the action, and must be assessed in that context. 6 Mr Nguyen reported to Dr Rothwell that he invested the money he received from his action consequent upon the 1995 assault by buying a house and commercial business on the Gold Coast. The purchase price of the house was $755,000 in 2013. One of the businesses which he intended to turn into a ‘Pho King Boy’ probably cost him around $160,000, including a fit out. The other business was a bar/pub that cost him over $500,000. Mr Nguyen reported to Dr Rothwell that he never ran these businesses after the drainage procedure left him numb. He did try to get a manager to look after them, but eventually he closed them down. -- 3 of 15 -- [2024] SASC 32 Kourakis CJ 2 7 Mr Nguyen reported that he transferred assets to his former support worker, Jordan, as he could not manage them. That transfer happened in around 2017- 2018. He said that Jordan was young and had no money. He explained that the assets were worth something, though he couldn’t keep up with the bills. The loan he had taken out attracted heavy interest as well. He said that Jordan didn’t give him any money for the businesses because ‘he helped him and did everything for him since the operation’. Asked further about why he had transferred those assets to Jordan he explained that Jordan loved him and that he wasn’t getting paid. He denied any intimate relationship with Jordan and said that he was still in contact with him. He denied any police involvement with any suggestions of carer abuse, and said that the transfer of assets was all legal and that ‘it had been done with a proper lawyer’. 8 Michael said that he didn’t have any money for himself currently, and that his family was supporting him. Chronology 9 The events and circumstances referred to below are taken from a chronology prepared by the Crown Solicitor and received on this application. It is supported by the seventh and eighth affidavits of Ms Martindale, and the exhibits to Ms Martindale’s eighth affidavit. 10 On 10 October 2008, he received the sum of $3,250,000 for damages for the serious assault and spinal injuries sustained in 1995 . 11 On 17 September 2014, Mr Nguyen was admitted to the Royal Adelaide Hospital for a ‘closed percutaneous aspiration/stroke drainage of a thoracic syrinx in his spinal canal.’ 12 On 15 September 2017, a Summons and Statement of Claim was filed by the firm Tindall Gask and Bentley (‘TGB’).1 The Summons was not served. On 14 March 2018, TGB sought an extension of time in which to serve the Summons on the grounds, inter alia, that Mr Nguyen was in the process of arranging alternative legal representation. The time for service was extended for three months from 15 March 2018. 13 Mr Kerin, a solicitor with Grope Hamilton Lawyers, received Mr Nguyen’s file from TGB on 14 June 2018. On 19 June 2018, Mr Kerin sought a further extension of time to serve the Summons on behalf of Mr Nguyen, and was granted a further six months in which to do so. 14 On 14 January 2019, Judge Bochner extended the time for service until 31 January 2019, having regard to an affidavit of Mr Kerin, who deposed that he 1 FDN 1, 2 and 3. -- 4 of 15 -- [2024] SASC 32 Kourakis CJ 3 had experienced difficulties in advancing Mr Nguyen’s matter because Mr Nguyen was residing in Queensland. 15 The claim was served on 30 January 2019. On 14 March 2019, a directions hearing was followed by an adjournment to allow the State to obtain medical reports and for the parties to have discussions on the proceedings. 16 On 16 January 2020, the State filed an interlocutory application to strike out Mr Nguyen’s claim for want of prosecution. On 16 July 2020, Judge Bochner ordered that Mr Nguyen provide discovery of all medical reports and reports in relation to the 1995 injury and its treatment to the State within 28 days. 17 The matter came on before Judge Bochner on 27 August 2020. Her Honour was informed that Mr Nguyen was finding it difficult to identify appropriately qualified medical practitioners to provide reports on liability, and was yet to obtain the solicitors file in respect of the 1995 assault. The action again came on before Judge Bochner on 3 December 2020, 27 January, 22 February, 6 May , 6 October, 1 December, and 23 December 2021, with little progress being made in the provision of expert reports and an affidavit of personal injury particulars. 18 On 18 February 2022, the State filed an interlocutory application regarding Mr Nguyen’s non-compliance with various orders, and seeking summary judgment, in the event that the non-compliance was not remedied. 19 On 7 April 2022, Judge Bochner ordered Mr Nguyen to serve on the State all further expert reports, including medical, accounting, and allied health reports, and to provide further disclosure of outstanding medical records within six weeks. 20 On 31 May 2022, Mr Nguyen filed an interlocutory application for an extension of time of that order until 30 June 2022. The Judge made orders granting a limited extension of time, but warned Mr Nguyen that he would be required to go to trial on the basis of the evidence filed as of 22 July 2022. The Judge also observed that: In my view, the failure of the applicant over a period of more than 12 months to comply with orders of the Court will be sufficient to warrant dismissal of the action on the basis of a serious procedural irregularity. 21 However, the Judge declined to take that step and allowed Mr Nguyen until 22 July 2022 to comply with the orders. 22 Mediation was conducted before Ms Francis Nelson KC on 2 March 2023. 23 The mediation failed and the matter came on before me for a listing conference on 30 March 2023. Mr Kerin sought the appointment of a litigation guardian. Mr Fabro attended,, out of courtesy to the Court, and informed me that he and his leader, Mr McTaggart SC, took the view that there were issues ‘as to the applicant’s capacity to provide instruction’. -- 5 of 15 -- [2024] SASC 32 Kourakis CJ 4 24 Mr Nguyen informed me that he hoped to engage another solicitor, Mr Peter Jackson of Duncan Basheer Hannon to act for him in the proceedings. 25 On 6 April 2023, at a directions hearing, Mr Jackson attended, as a courtesy to the Court, and informed me that his firm did not have instructions to act for Mr Nguyen. I came to the view that there were reasons to doubt Mr Nguyen’s capacity to instruct solicitors, and I stayed the proceeding until a report was received from a neuro-psychologist, Dr Rothwell, who had been engaged by the State to report on the applicant’s capacity. On 10 May 2023, at a directions hearing before me, Mr Nguyen indicated that he would not attend the appointment with Dr Rothwell, but that he intended to arrange and procure a report from a Queensland based neuropsychologist, Dr Bryden. I made orders requiring and facilitating Mr Nguyen’s attendance on his appointment with Dr Rothwell. 26 On 6 June 2023, Mr Nguyen informed me that he had not yet engaged a solicitor to conduct the action for him, but that he had engaged a Mr Starke, for the limited purposes of preparing a letter of instruction to Dr Bryden. Mr Nguyen otherwise accepted that he required a solicitor. 27 On 8 August 2023, the State filed an interlocutory application seeking the appointment of a litigation guardian for Mr Nguyen, supported by the eighth affidavit of Ms Martindale. 28 On 13 September 2023, Mr Kerin appeared and informed the Court that he had been instructed by Mr Nguyen to conduct the proceedings. Mr Kerin informed the Court that counsel had been briefed and that he was awaiting instructions from counsel on Mr Nguyen’s capacity. 29 On 13 October 2023, Mr Kerno appeared as counsel briefed by Mr Kerin. Mr Kerno informed the Court that Mr McTaggart SC and Mr Fabro would act for Mr Nguyen and would accept a brief if a litigation guardian were appointed. 30 On 7 November 2023, Mr Kerin filed an affidavit affirming that: • there had been numerous unsuccessful attempts to engage counsel to act; • Mr McTaggart SC and Mr Fabro would act if a litigation guardian were appointed; and • he was no longer instructed to have Mr Kerno argue the question of the appointment of the litigation guardian. 31 On 16 November 2023, Mr Kerin informed the Court that he been unable to obtain counsel and that he was highly unlikely to be in a position to conduct the trial himself. I made orders staying the proceedings until a litigation guardian should be appointed for Mr Nguyen by his solicitors, in order to obtain counsel prepared to conduct the proceedings to their resolution. Mr Nguyen was to provide -- 6 of 15 -- [2024] SASC 32 Kourakis CJ 5 an affidavit in which he deposed to have confidence in selected counsel to conduct the proceedings on his behalf. The Medical Reports 32 Before I turn to the reports in some detail, I commence with some brief biography. Mr Nguyen was born in Vietnam and migrated to Adelaide with his family in 1980, when he was five years old. He was educated to Grade 10. 33 He left school at the beginning of Grade 11 to work for his family’s bakery business. 34 I received into evidence Dr Bryden’s report dated 4 June 2023. Dr Bryden reported on the standardised cognitive test administered to Mr Nguyen as follows: • Low average Perceptual Reasoning Index, which was the best estimate for overall intellectual functioning given Mr Nguyen’s difficulties with language, processing speed, and attention. • Fluctuating difficulties with processing speed ranging from average to moderately reduced for age. • Fluctuating difficulties with attention ranging from average to moderately reduced for age. • Ability to communicate English at a conversational level and ability to comprehend verbally presented passages. However, word knowledge in English was moderately reduced for age. 35 Dr Bryden found that Mr Nguyen’s individual English word knowledge was below what would be expected for someone of his age, and was at the level of a person in Grade 3-5 (or between 9-11 years of age). Similarly, his general knowledge in English was moderately reduced compared to other people of the same language. 36 Dr Bryden’s assessment of Mr Nguyen’s memory was as follows. 37 Fluctuating memory performance ranged from low average to exceptionally low. Mr Nguyen’s poorer performances appeared to be due to poor attention affecting encoding; there was not evidence of rapid forgetting. His performance improved with repetition of information. 38 Mr Nguyen’s overall performance of Verbal, Visual, Immediate and Delayed Memory Indices on the Wechsler Memory Scale were in the exceptionally low range for age. However, a review of individual tests and consideration of qualitative factors revealed that Mr Nguyen’s performances on memory tasks were variable, and his overall score is likely to underestimate his true memory ability. -- 7 of 15 -- [2024] SASC 32 Kourakis CJ 6 39 Mr Nguyen’s worst performance on memory tasks was on a visual memory task which included recall of the details and visual locations of abstract symbols. 40 On verbal tasks, Mr Nguyen’s performance ranged from low average, at best, to exceptionally low, at worst. Generally, his difficulties were related to poor encoding of information (Immediate Recall trials) and he was able to recall a relatively good amount after delay, given his poor initial coding. Overall, this pattern indicates that difficulties were due to attention difficulties rather than a difficulty with rapidly forgetting information over time. 41 There were fluctuating performances on tasks which required executive functioning, with particular difficulties on tasks requiring response inhibition and problem solving when faced with ambiguous instructions. 42 Mr Nguyen’s ability to generate ideas (Letter Fluency) ranged from mildly reduced for age, at best, to very poor at worst. His performance on one of the Category Fluency tasks was affected by his misinterpretation of that task. Letter Fluency is considered to be more reliant on retrieval of novel ideas within a set of rules and it is, therefore, a better estimation of Mr Nguyen’s true idea generation capacity. 43 Mr Nguyen’s ability to switch between different aspects of a task was also variable. He performed at the average range for age on a visual/motor task (Trail Making Test Part B) and moderately reduced for age on a verbal task (Category Switching). There was also evidence of mild to moderate difficulties with shifting between ideas on another task (Wisconsin Card Sorting Test). 44 Dr Bryden concluded that: Determining whether the client has capacity to perform particular tasks is ultimately a matter for the courts. However, it is my opinion that the main cognitive disability experienced by Mr Nguyen is fluctuating attention and executive functioning which is compounded by poor facility with English for high level complex communication. I believe that with support for Mr Nguyen to comprehend the facts and issues of the case, support to maximise his attention and problem solving, and support to minimise his pain and fatigue, he will be able to act in legal proceedings. Report of Dr Rothwell 45 I received Dr Rothwell’s report of 3 August 2023 into evidence. 46 Dr Rothwell’s overall assessment was that Mr Nguyen had a mixture of stable and fluctuating cognitive and behavioural impairments (ie, a mental disability) and cannot be relied on to manage his participation in these proceedings. 47 Dr Rothwell responded to specific questions as follows: 1 To what extent is there any impairment of Mr Nguyens mental capacity? -- 8 of 15 -- [2024] SASC 32 Kourakis CJ 7 The neuropsychological assessment of Dr Bryden shows a preponderance of scores in the extremely low range both for general intellectual functioning but also for memory. This does clearly require explanation. Rather than calling this impaired she explains that this is due to his having English as a second language and secondary to attentional factors. Yet these scores are very low. My base rate analysis of her data shows that even the most pessimistic estimate of Mr Nguyen’s premorbid abilities produces a low expectation of functioning around the 10th%. And yet even when setting expectations this low his scores with Dr Bryden were well below this prediction and clearly abnormal with base rates of discrepancy of around 6% (general cognitive functioning) and certainly much less for memory (likely closer to 2-3% - it is a little hard to calculate without the raw scores). In my experience people who have English as their second language but who have picked English up at an early age such as Mr Nguyen do not score nearly as low as he has. For refence his profile resembles someone with a frank mild intellectual disability (not that I am suggesting that he has this diagnosis). My opinion is that Mr Nguyen’s cognition is likely impaired as a result of the chronic and acute use of high levels of benzodiazepine (Temazepam). What is known is that benzodiazepines (in a class of drugs called hypnotics) can be useful acutely in the very short-term (perhaps a few days to a week) but are often associated with cognitive impairment when used over a longer period - even after they are ceased (Crowe and Stranks 2017). This paper from Melbourne based neuropsychologists is notable because it is a meta-analysis which combines all the best published data from peer reviewed journals between 2003 and 2016. It reveals large effects sizes (reduction in performance) for working memory and processing speed. Interestingly there was negligible effect sizes of diazepam use on executive functioning and memory and indeed Mr Nguyen’s memory was though by Dr Bryden to be secondary to his attentional limitations and his executive functioning was at worst variable on her testing and intact on mine. I think this does explain Mr Nguyen’s difficulties with processing information – there is likely to be a stable impairment as a result of his chronic use of Temazepam but also the fluctuations which may reflect the size of the prn dose. However the side effects of Temazepam commonly includes drowsiness, sedation, anxiety, insomnia and confusion (among others). My understanding is that overuse or withdrawal from Temazepam might also be associated with hallucinations and this is something that Mr Nguyen has experienced previously. 2 Does Mr Nguyen understand the factual framework for his claim and the type of evidence required to succeed in his claim? Mr Nguyen appeared to have a reasonable grasp of the facts of the case as far as I could reasonably tell. He refers to the evidence of other doctors to support his claim implicitly acknowledging that this carries weight. Mr Nguyen does likely have a general understanding of the factual framework for his claim and has an understanding of some of the evidence required to support his claim. I did get a sense that his emotions were clouding his focus in consideration of his claim however (elaborated below in Question 3). 3 Is Mr Nguyen capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him? -- 9 of 15 -- [2024] SASC 32 Kourakis CJ 8 There was no evidence of difficulty in understanding instructions on test however despite this when he was talking about his case there was a focus on the outcome of the procedure and the loss, which whilst understandable did appear to distract from any clear argument. I will admit that whilst I understood what Mr Nguyen was saying I did not always follow his point. There appeared to be a lack of depth and breadth of understanding of what is relevant and what is not. 4 Is Mr Nguyen able to understand the court processes and the basic rules for conducting his case when these matters are explained to him? Due to the extended testing I did not specifically ask Mr Nguyen about his understanding of court processes. However my impression from his conversation was that he appeared to have a broad understanding. 5 Would Mr Nguyen be able to understand court rulings made during the trial when explained to him? I believe that Mr Nguyen would understand court rulings made during the trial so long as they were not convoluted. I think his capacity to recall these rules days later however might be unreliable on account of his memory impairment. 6 If Mr Nguyen is able to understand court processes and the basic rules of conducting his case and court rulings, is he capable of complying with them, and directions given by the Supreme Court? Whilst I think on balance that Mr Nguyen understand court processes and the basic rules of conduct, in his case I think there is doubt as to whether he can comply with them and directions given them by the Supreme Court. I think there would be a lack of continuity in his capacity to do so on account of his memory impairment. That he may comply on one occasion and then be either unwilling or unable to do so the following day. 7 Is Mr Nguyen capable of assessing any settlement proposal on its merits, having regard the state of the evidence, the parties’ submissions, and the other developments in the proceedings, as at the time the proposal is made? Because of the mixture of likely permanent and fluctuating levels of cognitive impairment I doubt Mr Nguyen’s capacity to assess any settlement proposal on its merits. He is unreliable with both his cognition and his behaviour and understandings on one day maybe (sic) changed the following. There is also some question about Mr [Nguyen’s] appreciation of the value of money given the very generous donations of assets to his former carer Jordan leaving him with insufficient funds for his considerable needs. 8 If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm Mr Nguyen’s physical mental health? I would have concerned for Mr Nguyen’s mental health with a long and complex trial given his memory and cognitive impairments and his experience of chronic pain. 9 In the alternative, if Mr Nguyen obtains legal representation, does he have the capacity to provide instructions? For the same reasons stated above I would have concerns about Mr Nguyen’s consistency in providing instructions. That while the basic tenants (sic) of his case -- 10 of 15 -- [2024] SASC 32 Kourakis CJ 9 may remain the same I doubt that he would be able to process large amounts of complex legal argument in order to form a plan and then stay the course of this plan. He will forget important aspects of the case - particularly more complex legal issues and terminology and issues of liability, causation and quantum. I think he will simply lose track of such issues - likely even with the prompting of a lawyer 10 Understands and accepts that he requires legal advice and assistance with respect to the proceedings? There is an implicit understanding from Mr Nguyen that he would be best served by having a lawyer. There does not appear to be any urgency on his behalf however to appoint a new legal representative. I suspect he is overwhelmed cognitively and emotionally. 11 Could arrange, facilitate and engage with legal advice and assistance over an extended period prior to, during and after the trial? I have concerns about Mr Nguyen’s capacity to do so because of his inconsistency and unreliability. 12 Has the ability to make decisions, and give instructions based upon, or otherwise give effect to, legal advice as may be received (including where such advice is inconsistent with Mr Nguyen’s own view as to any aspect of proceedings) I do not believe that Mr Nguyen has the capacity to be reliable in making decisions and giving instructions based on legal advice to him. This is due to his cognitive impairment, likely behavioural and psychiatric state which may well include aspects such as poor response inhibition (as revealed in the assessment of Dr Bryden), confusion and sedation. Without his temazepam however he is likely to suffer from some substantial pain which would impair his capacity to focus in any case. Furthermore, even if the temazepam was replace with another painkilling drug I do believe that he is likely to have a permanent level of cognitive impairment as a result of the over use of Temazepam over many years. 48 Next I turn to some notes made by medical practitioners whom Mr Nguyen has consulted because they reveal the extent of his addiction to Temazepam and aspects of his erratic behaviour. 49 In October and November 2019, Mr Nguyen’s general practitioners at the Varsity Lakes Family Practice made the following notes on Mr Nguyen’s Temazepam use, a drug which they had prescribed from May 2019. I have underlined the more significant entries: Surgery Consultation Recorded by: Miss Brooke Chapman Visit date: 22/10/2019 Recorded on: 22/10/2019 Phone call from Michael Concerns RE S/E from Duloxetine, requesting more temazepam, would like home call GP Advised unable to get – nil scripts. -- 11 of 15 -- [2024] SASC 32 Kourakis CJ 10 Advised may not be able to prescribe temazepam from night call doctor Michael under the impression that Tracey or his GP has his prescription Advised Michael nobody has his prescriptions and that he only had it dispersed 10 days ago so not eligible for another repeat yet. PT also advised that he is safe where he is living and current roommates including Jordan are looking after him Phone call to Tracey to discuss concerns ? home doctor for prescriptions Discussed - PT not eligible for more temazepam Ongoing concerns RE Michael’s finances, living environment, safety and cares (sic) Meeting scheduled for Thursday 24/10/19 with Tracey, Basic Rights QLD and QPS Phone call to Dr Roy’s rooms RE medication S/E from Duloxetine requires new referral for ongoing review Psychaitrist (sic) Intramail sent o GP – RE same Surgery consultation Recorded by: Dr Soroor Nouri Visit date: 24/10/2019 Recorded on: 24/10/2019 pt not compliant with prescriptions seen another Dr for temaz prescription he was advised to see one GP for ongoing care + prescriptions he is considering to pick a regular GP from now on temaz was dispensed 2 days ago – initially declined, e-health records indicates otherwise pt was advised to reduce temaz dosage slowly and take meds as prescribed by psychiatrist says he reacted to Cymbalta? no record of cymbalta being dispensed? Zyprexa started 2 wks ago and is ok declied (sic) referral to pain clinic – PHN pt was already advised of proposed management plan and unfortunately he has been non- compliant it is in his best interest to see a regular GP and cooperate with mx. plan -- 12 of 15 -- [2024] SASC 32 Kourakis CJ 11 script given just to prevent from withdrawal symptoms till he sees another GP Reason for visit: Prescription Actions: Prescription printed: Temazepam 10mg Tablet Daily to taper down from 8 a day slowly – as directed Surgery consultation Recorded by: Dr Kothandaramasamy Sanjeevi Visit date: 25/10/2019 Recorded on: 25/10/2019 asking for Temazepam he only had a script yesterday advised against taking more than 1 Temaze a day C/o of severe body pain secondary to the syringomyellia will trial Lyrica 75mg nocte review as needed Reason for visit: Neuropathic pains from syringomyelia Actions: Prescription printed: Lyrica 75mg Capsule 1 tab before bed As directed … Surgery consultation Recorded by: Mrs Kelly Hanna Visit date: 07/11/2019 Recorded on: 07/11/2019 Phone call from Theresa from Basic Rights They can’t take instructions from him due to his report and MOCA test (cognitive score and results) at specialist. They will call Michael to advise of news, they will advise him that he will need to appoint a reliable person to make decisions for him for the future. -- 13 of 15 -- [2024] SASC 32 Kourakis CJ 12 Concerned for him and his wellbeing if he continues to use an informal person to look after his affairs. Therea to send through to treatment room email and brooke to advise of outcome of her meeting today with her colleagues Reason for visit: Phone call – Theresa – Basic Rights Attempts to find counsel 50 In an affidavit of 6 November 2023, Mr Nguyen’s solicitor, Mr Kerin, deposed to his attempts to find counsel to appear for Mr Nguyen. Mr Kerin was not able as of that time to identify counsel who would be available to accept the brief to conduct the trial of Mr Nguyen’s action. The affidavit was filed in accordance with directions given by me calculated to ascertain the prospects of the engagement of counsel who would have the conduct of Mr Nguyen’s action through to its final resolution by settlement or adjudication. The history of Mr Nguyen’s engagement of counsel, and the subsequent termination of their instructions, suggested that Mr Nguyen had a poor appreciation of the importance which should be attached to the advice and opinions of counsel on how an action should be prosecuted and, if necessary, compromised. 51 In submissions made before me on 18 December 2023, Mr Kerin informed me that Mr McTaggart SC and Mr Fabro, a senior junior with much experience in personal injury litigation, who had been engaged to advise on Mr Nguyen’s action over a considerable amount of time, were available to conduct the trial. However, they were only prepared to do so if a litigation guardian were appointed. 52 In so far as the position taken by Mr McTaggart SC and Mr Fabro is concerned, it discloses an opinion that Mr Nguyen does not have capacity to give instructions for the conduct of an action as complex as his. Their opinions cannot guide my judgment. However, I can infer from their disclosed attitude that they have found it so difficult to give advice and receive informed instructions from Mr Nguyen that they could not be confident that they would be in a position to discharge their professional responsibilities unless a litigation guardian were appointed. Discussion 53 The reports of Dr Bryden and Dr Rothwell show that Mr Nguyen has sufficient intellectual and reasoning capacity to comprehend the general nature of his action and to understand some of the legal and factual issues which it presents, even though his limited memory and attention span cause some difficulty in that respect. The greater deficits in Mr Nguyen’s executive functioning preclude him from appreciating and weighing the advantages and disadvantages of the competing forensic choices which must be made in an action as complex as his. -- 14 of 15 -- [2024] SASC 32 Kourakis CJ 13 54 That difficulty is further compounded by the long term effects of his Temazepam use. 55 Moreover, Mr Nguyen has a history of erratic and inconsistent behaviour in his personal life and in the conduct of the litigation which is complicated by impulsive and obstinate personality traits. 56 It is clear enough from the reports of Dr Bryden and Dr Rothwell about Mr Nguyen’s reasoning ability that the appointment of a litigation guardian for Mr Nguyen is necessary to facilitate the efficacious conduct of his proceedings against the respondent. There can, in my view, be no doubt, from the reports of Dr Bryden and Dr Rothwell, that Mr Nguyen is presently a person under a legal incapacity, as that phrase is defined in r 2.1(b) of the Uniform Civil Rules 2020 (SA). In light of Mr Nguyen’s impaired cognitive function, and particular difficulty with his executive functioning, I find that Mr Nguyen is incapable of managing his own affairs and his litigation with the competence to be expected of an adult in his position, and that, accordingly, there is a real risk that, in the absence of a litigation guardian, Mr Nguyen will be disadvantaged in the conduct of his affairs.2 It cannot be said, in my opinion, that Mr Nguyen is capable of understanding the ‘nature of the litigation, its purposes and its possible outcomes, including the risks in costs’ with the degree of precision that this Court, and the community, ought to expect of a litigant.3 The consequence of my findings, in this regard, is as provided by r 23.8(2) of the Uniform Civil Rules: these proceedings cannot continue in the absence of a litigation guardian for Mr Nguyen. Conclusion 57 I stay the further action of this matter until an appropriate person can be found who is willing to accept an appointment to act as Mr Nguyen’s litigation guardian. The parties have liberty to have this action called back on before me at short notice for that purpose. 2 Cf PY v RJS [1982] 2 NSWLR 700, 702 (Powell J). 3 Slaveski v Victoria (2009) 25 VR 160, 182-3 [24]-[26] (Kyrou J). See also Dalle-Molle v Manos (2004) 88 SASR 193, 198 [20] (Debelle J). -- 15 of 15 --