Atkins & Anor v Atkins & Ors

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

ATKINS & ANOR v ATKINS & ORS

[2011] SASC 85

Reasons of Judge Lunn a Master of the Supreme Court

18 May 2011

PROCEDURE

Party under disability - plaintiff seeking a litigation guardian to be appointed for a defendant - held correct procedure was for plaintiff to apply for an inquiry by a Master as to whether the defendant was a person under disability for the purposes of the action.

ATKINS & ANOR v ATKINS & ORS
[2011] SASC 85

JUDGE LUNN:

Reasons on plaintiffs’ application for the appointment of a litigation guardian for the second defendant and a medical examination of her

1. This is a claim for provision by two of the adult children of Eric Atkins deceased pursuant to the Inheritance (Family Provision) Act 1972. The second defendant is also a child of the deceased and the third to fifth defendants are children of the second defendant.[1]  The plaintiffs apparently did not serve the Summons on the second defendant pursuant to 6R 63 on the basis that she was then a person under disability.  She has filed a Notice of Acting in Person.

   [1]    The first defendant is also the first plaintiff, but is named as a defendant because he is an executor of the estate.

2. The plaintiffs now have concerns about whether the second defendant is for the purpose of this action a “person under disability” as defined in 6R 4.  This is a matter of some consequence because if she is a person under disability it would mean that any settlement of the action, and possibly any judgment after a trial, would not be binding on her.[2]

   [2]    Degroot Family Provision Australia 2^nd Edition, paragraph 6.28.

3. The plaintiffs are in possession of a medical certificate dated 13 May 2009 from the General Practitioner of the second defendant, who said that she suffered from schizophrenia, but its terms were consistent with her then not being a person under disability.   The final paragraph of the certificate read:

   Should the situation change and there is a relapse of her medical problem to a state when she is unable to make any decision then of course the matter will need to be reviewed.

4. Whether a party is a person under disability for the purpose of the Rules also depends upon the nature of the proceedings and the degree of the party’s involvement in them.[3]  That issue is not addressed in the medical certificate.

   [3]    Dalle-Molle v Manos (2004) 88 SASR 193.

5. This action was commenced on 21 December 2009.  There have been a number of directions hearings, but as yet the matter is not ready for trial.  The second defendant has attended at some of those hearings but not others.  She lives near Wallaroo.

6. On 5 April 2011 the plaintiffs took out an application (FDN21) seeking orders, inter alia, that the Court appoint a litigation guardian for the second defendant, that she disclose her medical records, that she submit to medical…