Bain v Bain

[2022] NSWDC 415

District Court

New South Wales

Medium Neutral Citation:

Bain v Bain [2022] NSWDC 415

Hearing dates:

26 August & 16 September 2022

Date of orders:

16 September 2022

Decision date:

16 September 2022

Jurisdiction:

Civil

Before:

Judge Levy SC

Decision:

1. Tutor’s notice of motion filed on 5 August 2022 seeking removal of tutor pursuant to UCPR r 7.18 is dismissed;

2. Each party is to pay their own costs of the dismissed motion;

3. Exhibits are to remain with the Court file;

4. Liberty to apply on 7 days’ notice for further or other orders if required.

Catchwords:

PROCEDURE – dismissal of application for removal of tutor in personal injury damages proceedings – review of evidence of plaintiff’s legal capacity

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 3, s 58(2)

Motor Accidents Compensation Act 1999 (NSW), s 61

Uniform Civil Procedure Rules 2005 (NSW), r 7.13, r 7.18, Sch 7, cl 5(1)(c)

Cases Cited:

IA v TA [2016] NSWCA 179

Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305

Pham v Shui [2006] NSWCA 373

Stokes v McCourt [2014] NSWSC 61

Category:

Procedural rulings

Parties:

Laurence Bain bht Nuning Bain (Plaintiff)
Edmund Bain (Defendant)

Representation:

Counsel:
Mr B Jones (Plaintiff)
Mr J Bruce, solicitor (Defendant)

Solicitors:
Stacks Goudkamp (Plaintiff)
Moray & Agnew (Defendant)

File Number(s):

2016/377031

Publication restriction:

None

Judgment

Application for removal of tutor

1. This is an application filed on 5 August 2022 on behalf of the plaintiff seeking the removal of his tutor in proceedings in which he claims damages for personal injuries: Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 7.18.

Background

2. On 8 February 2014, the plaintiff, then aged 12 years, sustained a very severe traumatic brain injury and skull fracture in a motor vehicle accident. That injury resulted in bilateral haemorrhagic contusions to the temporal and frontal lobes requiring bilateral craniectomies, and involved an estimated 37-day period of post-traumatic amnesia.

3. The plaintiff’s injury occurred whilst he was on his skateboard. With the knowledge of the defendant, his father, he, and others, had “skitched” a ride by holding onto the back of the defendant’s moving vehicle. In those events the plaintiff sustained a head injury when he fell from his skateboard onto the ground as the vehicle was being driven over a rough patch of ground.

4. On 16 December 2016, the plaintiff’s mother, as his tutor, commenced these proceedings claiming damages for negligence in respect of those events. At that time, the plaintiff was a minor aged 14 years. The plaintiff is now aged 20 years. In this application for removal of the plaintiff’s tutor, his legal capacity stands to be assessed according to the medical evidence tendered in support of that application.

5. The defendant at the outset submitted to any orders the Court might make on the plaintiff’s motion. As there was no contradictor to the application for the removal of the tutor, it was therefore important for the Court’s protective jurisdiction to be exercised…