Driver v Southern NSW Local Health District

[2018] NSWSC 257

Supreme Court

New South Wales

Medium Neutral Citation:

Driver v Southern NSW Local Health District [2018] NSWSC 257

Hearing dates:

27 February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1)   The Court finds that the Plaintiff is no longer a person under a legal incapacity, and;

 

(2) The Court exercises its power contained in Rule 7.18 of the UCPR to remove the tutor in the proceedings;

 (3)   Costs be costs in the cause.

Catchwords:

CIVIL PROCEDURE – parties – persons under legal incapacity – tutors – person under disability and for whom tutor appointed proves disability no longer operative – preferable for plaintiff to give her own instructions – orders removing the tutor issued – Amended Statement of Claim in plaintiff’s own name

Category:

Consequential orders (other than Costs)

Parties:

Monique Driver (Plaintiff)
Southern NSW Local Health District (Defendant)

Representation:

Counsel:
A Campbell (Plaintiff)
M Becker (Defendant)

  Solicitors:
Gerard Malouf & Partners (Plaintiff)
Hickson’s Lawyers (Defendant)

File Number(s):

2015/00176128

Ex Tempore Judgment

1. HIS HONOUR: Before the Court is a motion on notice that the Court remove the tutor previously appointed to act on behalf of the plaintiff on the basis that the plaintiff is no longer a person under a legal incapacity and in need of a tutor or, indeed, for whom it is appropriate to have a tutor.

2. The plaintiff relies on the affidavit of the plaintiff herself sworn 17 January 2017.

3. While I accept that affidavits are often crafted by lawyers, the terms and content of the affidavit certainly do not suggest any ongoing difficulty with the capacity to give instructions and obtain and understand advice; but most importantly, I have a medical certificate dated 11 January 2018 on the letterhead of St John of God Richmond Hospital, and signed by the consultant psychiatrist Dr Bertucen who has been treating the plaintiff.

4. The plaintiff was suffering from chronic post-traumatic stress disorder following a violent death of a sibling in November 2016 and a major depressive disorder. The doctor certifies or states in the short report that he is of the opinion that her symptoms of chronic PTSD and depression are currently in satisfactory remission, and she is in a non-depressed state.

5. He also repeats the history given by the plaintiff's mother, who reports that the plaintiff is self-directed and organised with all aspects of self-care, attire, and financial management.

6. In those circumstances, it seems to me that it is most appropriate that the plaintiff run her own case, and I make the four orders set out in the motion, notice of which was filed on 20 February 2018.

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Decision last updated: 05 March 2018