Andreapoulou v Nowak

[2002] VSC 462

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 4919 of 2001

ATHINOULA ANDREAPOULOU	Plaintiff
v
ROBERT NOWAK	Defendant

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JUDGE:	Nettle J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 October 2002
DATE OF JUDGMENT:	28 October 2002
CASE MAY BE CITED AS:	Andreapoulou v Nowak
MEDIUM NEUTRAL CITATION:	[2002] VSC 462

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms D. Rasheva	Wisewoulds
For the Defendant	Mr J. Isles	Issac Brott & Co

HIS HONOUR:

1. I have before me two proceedings in which applications are made pursuant to Rule 15.02 of the Rules of Court for the appointment of a litigation guardian on behalf of Athinoula Andreapoulou.  I am also asked to make orders that both proceedings be heard at the same time and before the same judge.

1. The power to appoint a litigation guardian arises if the party for whom the guardian is sought to be appointed is a person under a disability[1].

   [1]Rule 15.01

1. A “person under a disability” means a handicapped person, and “a handicapped person” means one who is incapable by reason of injury, disease, senility, illness or physical or mental infirmity of managing her affairs in relation to the proceeding[2]. 

   [2]ibid.

1. The evidence in support of the application includes an affidavit sworn by Anthony Thomas Maher and an exhibited report of a consulting psychiatrist, Dr Nathan Serry, of 23 October 2002. 

1. In his affidavit, Mr Maher deposes to difficulties which he has had in obtaining instructions from Ms Andreapoulou and as to some irrational behaviour in which she engaged in at and about the time of a mediation conference on 2 October this year. 

1. In his expert report, Dr Serry provides a possible explanation of that conduct by concluding that, in his opinion, Ms Andreapoulou is currently experiencing psychiatric difficulties in the context of a difficult relationship break-up and protracted litigation.  Dr Serry makes the point, however, that, whatever may have been the position in the past, Ms Andreapoulou is now no longer clinically depressed, albeit that she reveals some inappropriate affect, mild paranoid ideation and quite significant denial of the gravity of her circumstances. 

1. In Dr Serry’s opinion, Ms Andreapoulou is capable of managing her own affairs even though, Dr Serry says, there must be some doubt as to how satisfactorily she is capable of so doing. 

1. In this state of the evidence I am not satisfied that Ms Andreapoulou is incapable of managing her affairs in relation to these proceedings, even though I share with Dr Serry a concern as to how satisfactorily Ms Andreapoulou may go about the task.

1. Dr Serry expresses the opinion that Ms Andreapoulou may well benefit from the appointment of a litigation guardian and, as at present advised, it is difficult to disagree with that conclusion.  But, plainly, that is not the test.  The test is whether Ms Andreapoulou is incapable of managing her own affairs and, on the evidence before me, it has not been shown that she is incapable.

1. In the result, I dismiss the application for appointment of litigation guardian, although obviously without prejudice to a further application if the situation deteriorates. 

1. I will hear counsel on the form of orders. 

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