Cohrs v Cohrs - [2022] VSC 474

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

CIVIL CIRCUIT LIST

S ECI 2019 05265

JULIE MAREE COHRS	Plaintiff
v
PAUL ANTHONY COHRS	Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 August 2022
DATE OF RULING:	19 August 2022
CASE MAY BE CITED AS:	Cohrs v Cohrs
MEDIUM NEUTRAL CITATION:	[2022] VSC 474

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PRACTICE AND PROCEDURE — Adjournment application — Evidence that the defendant has a delusional disorder — Whether defendant so incapable of managing his affairs in relation to the proceeding — Evidence that defendant’s condition will improve with treatment — Defendant currently remanded in Thomas Embling Hospital for treatment— Supreme Court (General Civil Procedure) Rules 2015 r 15 — R v Cohrs [2022] VSC 334.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	B Dooly SC with C O’Sullivan	Maloney Anderson Legal
For the Defendant	C Spitaleri	Garland Hawthorn Brahe Lawyers

HIS HONOUR:

The plaintiff was married to the late Raymond Cohrs.

The plaintiff brings this proceeding against the defendant pursuant to the provisions of the Compensation to Relatives Act 1897 (NSW) in relation to the death of Raymond Cohrs (‘Deceased’).

The plaintiff alleges the defendant shot the Deceased with a firearm causing his death.

The defendant is charged in Victoria with the murder of Bette Schulz. There is a current proceeding in the Criminal Trial Division of this Court in relation to that murder charge (‘Criminal Proceeding’).[1]
[1]Proceeding no S ECR 2019 0170.

In June this year, Taylor J ruled in the Criminal Proceeding that under s 14E of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (‘Act’) the defendant was unfit to stand trial.

The trial of this proceeding is currently listed on 22 August 2022.

The defendant has recently instructed lawyers to appear for him in the proceeding. The defendant’s lawyers have applied to adjourn the trial until the conclusion of the Criminal Proceeding and list the proceeding for directions on a date after 22 February 2023.

The defendant’s lawyers raised two issues. First, that there is a real and substantial risk that any determination of this proceeding would prejudice the defence of the criminal charges.

Second, that the defendant is suffering from a delusional disorder and is, for that reason, a person under a disability for the purposes of r 15 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).

The plaintiff opposed the defendant’s application.

Background

The defendant is the son of Bette Schulz, and the brother of the Deceased.

The Crown case against the defendant in the Criminal Proceeding is summarised in the ruling of Taylor J delivered on 17 June 2022 about whether the defendant is unfit to stand trial.[2] The Crown case includes that on 30 October 2018 at a property called Lake Victoria Station, located in south-west New South Wales, the defendant discharged a firearm at the Deceased four times, causing his death. The Crown alleges the defendant then went to the home of Bette…

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 Cohrs v Cohrs

Details

AGLC: Cohrs v Cohrs [2022] VSC 474
Case: [2022] VSC 474
Decision Date: 19 August 2022

CaseChat Overview and Summary

The case of Cohrs v Cohrs involved an application for an adjournment of a proceeding due to the defendant's mental health condition. The defendant, who was currently remanded in Thomas Embling Hospital for treatment, had a delusional disorder that impacted his ability to manage his affairs in relation to the proceeding. The plaintiff sought the adjournment on the basis that the defendant's condition was likely to improve with treatment, and that it was therefore in the interests of justice to adjourn the proceeding until the defendant was in a position to manage his affairs.

The court was required to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2015, as well as the case law on adjournments in cases involving mental health issues. In particular, the court needed to determine whether the defendant's condition was such that he was incapable of managing his affairs in relation to the proceeding, and whether an adjournment was necessary in the interests of justice.

The court found that the defendant's delusional disorder did render him incapable of managing his affairs in relation to the proceeding, but that an adjournment was not necessary in the interests of justice. The court noted that the defendant's condition was likely to improve with treatment, and that there was no evidence that his condition would not improve in time for the proceeding to proceed. The court also noted that the defendant had legal representation, and that the adjournment would cause significant delay and inconvenience to the plaintiff. The court therefore declined to grant the adjournment.

No specific orders were made by the court, as the adjournment application was dismissed. However, the court noted that the defendant's condition would be monitored, and that the proceeding would be adjourned if necessary in light of any changes in the defendant's condition.

Orders