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Coffey v Coffey (No. 2)

Coffey v Coffey (No. 2)

Case [2015] NSWSC 338 30 March 2015

Standing

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Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Coffey v Coffey (No. 2) [2015] NSWSC 338
Hearing dates: 19 March 2015
Date of orders: 30 March 2015
Decision date: 30 March 2015
Jurisdiction: Equity Division
Before: Slattery J
Decision:
Plaintiff’s tutor removed.

Catchwords: CIVIL PROCEDURE – application by second defendant to remove plaintiff’s tutor – where tutor is subject of an instrument appointing an enduring guardian – insufficient evidence to displace presumption as to appointor’s capacity.
Legislation Cited: Civil Procedure Act 2005 (NSW)
Guardianship Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW) Division 4, rr 7.13 – 7.18
Cases Cited: Attorney-General v Parnther (1792) 3 Bro CC 441
Brown v Weatherhead (1844) 4 Hare 122; 67 ER 586
Coffey v Coffey [2015] NSWSC 137
Farr v Queensland [2009] NSWSC 906
Masterman-Lister v Brutton & Co [2003] 3 All ER 162
Murray v Williams [2010] NSWSC 1243
Murphy v Doman (2003) 58 NSWLR 51
Saravinovska v Saravinovski [2015] NSWSC 128
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Leslie Raymond Coffey
First Defendant: Ronald Bruce Coffey
Second Defendant: Yvette Ray Latu
Third Defendant: Andrew Bruce Coffey
Representation:
Counsel:
Plaintiff: H. Durack
Solicitors:
Plaintiff: Lorraine White, Baker, Deane and Nutt Solicitors
Second Defendant: in person

File Number(s): 2013/31875
Publication restriction: No

Judgment

Leanne Thurling was appointed as the tutor to her father Leslie Coffey, the plaintiff in these proceedings, on 23 February 2015. That appointment was 3 days before the commencement of the hearing in these proceedings in February. On 13 March 2015 Yvette Latu, the applicant and second defendant, filed a notice of motion to remove Leanne Thurling as tutor. The motion was argued on 19 March 2015. The applicant is successful on the motion and removes Leanne Thurling as the plaintiff’s tutor for the reasons that follow.
This is my second judgment in these proceedings. It should be read with my earlier judgment: Coffey v Coffey [2015] NSWSC 137. Events, matters and persons are referred to in both judgments in the same way. It is not necessary to recount all the facts in this judgment. The applicant on the motion, Yvette Latu, appeared in person. Mr H. Durack of counsel appeared for the respondent/plaintiff.

Appointing and removing a tutor in proceedings

Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), Division 4, rr 7.13 – 7.18 confer power to appoint a tutor to conduct proceedings on another person’s behalf. The purpose of that power is to provide a person under legal incapacity, including a person who is incapable of managing his or her affairs (UCPR, r 7.13), with competent decision-making in relation to a proceeding.
Leanne Thurling was appointed as Leslie’s tutor without an order of the Court. UCPR, r 7.15(1) permits this form of appointment. But the Court retains overall supervision over a party’s conduct of proceedings through a tutor. This supervision is a necessary reflection of the law’s long-standing presumption that a person of full age is capable of managing his or her…

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 Coffey v Coffey (No. 2)

Details

AGLC: Coffey v Coffey (No. 2) [2015] NSWSC 338
Case: [2015] NSWSC 338
Decision Date: 30 March 2015

CaseChat Overview and Summary

In the Family Court of Australia, the case of Coffey v Coffey (No. 2) involved a dispute concerning the removal of a plaintiff's tutor. The second defendant, who was a party to the proceedings, sought to have the plaintiff's tutor removed, arguing that the tutor was not suitable for the role. The plaintiff, who had been subject to an instrument appointing an enduring guardian, required a tutor for the proceedings due to their incapacity to manage their own affairs. The tutor's role was critical in ensuring that the plaintiff's interests were adequately represented in the court proceedings.

The legal issues before the court included whether the presumption of capacity of the appointor, under the relevant legislation, was rebutted by the evidence presented, and whether the evidence was sufficient to displace the presumption that the appointor had the requisite capacity to appoint an enduring guardian. The court had to determine whether the second defendant had demonstrated that the tutor was unsuitable, and if so, whether the appointment of a new tutor was necessary. Additionally, the court had to consider the impact of the existing enduring guardian instrument on the appointment and role of the tutor in these proceedings.

The court found that there was insufficient evidence to rebut the presumption of the appointor's capacity. It held that the presumption of capacity had not been successfully challenged, and therefore, the appointment of the enduring guardian stood. Given that the tutor was the subject of the instrument appointing the enduring guardian, the court ruled that the existing tutor was suitable and there was no need to appoint a new one. The court's decision was based on the lack of substantial evidence to challenge the capacity of the appointor, and the need to maintain the integrity of the enduring guardian instrument.

The court ordered that the second defendant's application to remove the plaintiff's tutor be dismissed. The existing tutor was to continue in their role, ensuring that the plaintiff's interests were represented in the proceedings. This decision underscored the importance of the presumption of capacity and the need for strong evidence to challenge such presumptions, particularly in matters involving enduring guardianships.

Orders