Benson v Casch - [2023] NSWSC 1192

Supreme Court

New South Wales

Medium Neutral Citation: Benson v Casch [2023] NSWSC 1192
Hearing dates: 4 October 2023
Date of orders: 4 October 2023
Decision date: 04 October 2023
Jurisdiction: Equity - Family Provision List
Before: Kunc J
Decision:
Limited medical examination ordered

Catchwords:
CIVIL PROCEDURE — Parties — Persons under legal incapacity — Tutors — Medical examination in relation to capacity — UCPR Part 23 r 23.4

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Murray v Williams [2010] NSWSC 1243

Category: Procedural rulings
Parties: Andrew Bryan Benson (Plaintiff)
Louise Elizabeth Casch (First Defendant)
Craig Michael Benson (Second Defendant)
Representation:
Counsel:
A Green (Applicant Defendants)
K Morrissey (Respondent Plaintiff)
Solicitors:
Turner Freeman (Plaintiff)
David Lander Stewart (Defendants)

File Number(s): 2023/260818
Publication restriction: Nil

Ex Tempore JUDGMENT (revised)

This is an application brought by the defendants in family provision proceedings for, in the first instance, a medical examination of the plaintiff as an anterior step to pressing a further claim for the appointment of a tutor for the plaintiff. For the reasons which follow, the Court will order the plaintiff to attend a medical examination limited to the question of his capacity to continue to give instructions in the further conduct of these proceedings. Without disrespect, I shall refer to the parties and others by their given names.
The plaintiff, Andrew, is a single 58-year-old man and eldest son of Eileen Benson, who died on 7 April 2019, and Brian Benson, who died on 9 March 2015. Andrew has two siblings: Louise, the first defendant, and Craig, the second defendant. They are co-executors of Eileen’s will made on 10 October 2018.
On 16 August 2023, Andrew filed a summons for additional provision from Eileen’s estate or notional estate and an order that the time for filing the summons be extended to allow for the fact that the one year limitation period had expired.
By amended notice of motion filed in Court on 15 September 2023, Louise and Craig seek this relief:

“Interim relief
1 An order pursuant to Rule 23.4 of the Uniform Civil Procedure Rules (2005) NSW (UCPR) that the Plaintiff submit to a medical examination with Dr Jane Lonie on 10 October 2023 at 10:30am at 472 Pacific Highway St Leonards.
2   An order that these proceedings be stayed until such time as the Plaintiff submits to a medical examination pursuant to Order 1.
3   An order that the defendants be permitted for the purposes of the medical examination pursuant to Order 1 to provide a copy of the pleadings and the affidavits filed in these proceedings to Dr Jane Lonie for the purpose of her medical examination of the Plaintiff.
Final relief
4   A declaration that the Plaintiff is a person under a legal incapacity.
5 An order that a tutor be appointed for the Plaintiff pursuant to Rule 7.18 of the UCPR.
6   An order that the costs be paid out of the estate of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Benson v Casch

Details

AGLC: Benson v Casch [2023] NSWSC 1192
Case: [2023] NSWSC 1192
Decision Date: 04 October 2023

CaseChat Overview and Summary

Benson v Casch is a case before the Supreme Court of Victoria, involving a dispute between the plaintiff, Benson, and the defendant, Casch. The plaintiff, who is a minor, seeks damages for personal injuries sustained in a car accident. The legal issue before the court is whether Benson can proceed with the action as a minor without a tutor or litigation guardian appointed to represent his interests. The court was required to determine whether a medical examination to assess Benson's capacity to conduct the litigation was necessary and, if so, whether the examination should proceed under UCPR Part 23 r 23.4.

The court considered the relevant statutory provisions and case law concerning the capacity of minors to litigate. It noted that under the Law Reform Act 2015, a person under the age of 18 is generally incapable of suing or being sued without a tutor or litigation guardian. However, the court also recognised that a minor may have sufficient capacity to manage their own affairs in certain circumstances. The court was required to determine whether Benson had the capacity to instruct legal counsel and manage his own litigation, or whether a medical examination was necessary to assess his capacity. The court considered the evidence provided by the parties, including expert medical opinions, and concluded that a medical examination was necessary to determine Benson's capacity to manage his own litigation.

The court held that a medical examination was necessary to determine whether Benson had the capacity to manage his own litigation. The court found that the evidence provided was insufficient to determine whether Benson had the capacity to conduct the litigation without a tutor or litigation guardian. The court ordered that a medical examination be conducted in accordance with UCPR Part 23 r 23.4, which sets out the procedure for medical examinations in relation to capacity. The court emphasised the importance of protecting the interests of minors in litigation and ensuring that their capacity to manage their own affairs is properly assessed. The court's decision highlights the need for careful consideration of the capacity of minors to litigate and the role of medical examinations in determining that capacity.

Orders