Gergis v Ware

[2010] NSWDC 17

Reported Decision: 10 DCLR (NSW)156

District Court

CITATION:	Gergis v Ware [2010] NSWDC 17
HEARING DATE(S):	5 February 2010
EX TEMPORE JUDGMENT DATE:	5 February 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005, the plaintiff’s father, Mourad Gergis be appointed as the plaintiff’s tutor in these proceedings; 2. The costs of the motion are to be costs in the cause.
CATCHWORDS:	PROCEDURE – appointment of tutor – opposed by defendant – powers to appoint – considerations – s 58 Civil Procedure Act 2002
LEGISLATION CITED:	Civil Procedure Act 2005, s 3(1); s 58 Uniform Civil Procedure Rules 2005, r 7.18
CASES CITED:	HSBC Bank Australia Limited v Chang [2007] NSWSC 1127 HSBC Bank Australia Limited v Chang [2008] NSWSC 948
PARTIES:	Stephen Gergis (Plaintiff) Sussanah Ware (Defendant)
FILE NUMBER(S):	4373 of 2008
COUNSEL:	Mr LT Grey (Plaintiff) Mr RS McIlwaine SC (Defendant)
SOLICITORS:	Carroll & O’Dea (Plaintiff) Charleston Bishop Legal (Defendant)

JUDGMENT

Nature of the motion

1. The plaintiff’s motion filed on 14 October 2009 seeks the appointment of a tutor on account of a claim that the plaintiff has a cognitive impairment due to alleged brain damage. The application is opposed by the defendant.

Evidence

2. The application arises in the context of a claim for damages for personal injury arising out of a motor vehicle collision. The plaintiff relies upon an affidavit sworn on 18 November 2009 by his solicitor Olivia Malian.

Submissions

3. Mr McIlwaine SC, of behalf of the defendant, objected to particular portions of that affidavit, namely the second sentence in para 6, the second sentence in para 7 and para 14 on the basis of commentary argument and unqualified conclusion. I read those sections of Ms Malian’s affidavit as being merely directing the attention of the reader to the issue for decision in the case and not as expression of opinion in the sense that she claimed qualification to make those statements. I therefore allowed the evidence on an interlocutory basis.

4. The basis for the defendant’s opposition to orders sought in the notice of motion is that the defendant disputed that the plaintiff is cognitively impaired to the degree claimed. It is clear from the evidence that this is an issue that will be vigorously contested at a trial. On an interlocutory application such as this the considerations of proof of such an issue are not as stringent.

5. The defendant pointed to the definition as to what constitutes legal incapacity as defined in s 3(1) of the Civil Procedure Act 2005 and argued that the plaintiff’s situation does not meet the defined criteria of a person under legal incapacity as therein set out and the defendant therefore argued that the evidence does not justify, the appointment of a tutor under Uniform Civil Procedure Rules 2005 r 7.18.

Consideration

6. I consider that s 3(1) does not provide an exclusive definition of legal incapacity. The defendant referred to two decisions in HSBC Bank Australia Limited v Chang, [2007] NSWSC 1127 per Bell J and [2008] NSWSC 948 per Fullerton J. It is clear that those decisions concerned the jurisdiction of the Supreme Court’s inherent parens patriae jurisdiction, where orders of this kind were there canvassed in those cases. This Court does not have that inherent and direct power and must act within the powers of its statutory framework. Nevertheless, having regard to the requirements of s 58 of the Civil Procedure Act 2005, which requires the Court to decide issues concerning orders or directions in the management of proceedings according to the dictates of justice, I consider that section confers a power on the Court to make orders of the kind sought by the plaintiff in this case.

7. I have had the opportunity of reviewing the medical evidence annexed to the affidavit of Ms Malian. None of the authors of the annexed reports were required for cross-examination nor would it be the practice to do so in an interlocutory application such as this.

8. Relevantly, without undertaking a full or comprehensive analysis of those medical reports, as might be undertaken at a trial, it is clear that the plaintiff has, according to the consultant rehabilitation specialist, Dr Buckley, significant behavioural impairment with a tendency to rage and a very marked level of fatigue and poor concentration. Dr Buckley thought that the plaintiff had a very severe traumatic brain injury with cognitive and behavioural deficits and was unfit to give instructions to counsel and solicitors. He also thought the plaintiff had poor social judgment, noting that the plaintiff lost his temper with his friends and had difficulty with problem solving and sorting out similarities and differences.

9. Dr Akkerman, a consultant psychiatrist, thought there was evidence of impaired judgment in the plaintiff and that there was severe brain damage with frontal lobe disorder. He added, in answer to a question on the topic, that he thought it was very unlikely that the plaintiff would be capable of providing legal instructions to his solicitors and to counsel because of his brain damage.

10. The plaintiff was assessed by a consultant neuropsychologist, Dr Langeluddecke, who noted that there was a discrepancy between the plaintiff’s highest and lowest score factors on intellectual functioning tests. Dr Langeluddecke also noted the plaintiff had problems with visual planning and deficiencies in visual spatial reasoning. She thought that on testing the plaintiff demonstrated problems that were in keeping with the patterns of testing which she had observed on prior occasions and which had resulted in her stated assessments of the plaintiff’s incapacity and impairment.

11. Dr Langeluddecke also noted that the plaintiff demonstrated an exceptionally high testing error rate on abstract task performances requiring him to utilise feedback from the examiner to problem solve and to think flexibly. She thought he had marked problems with executive functioning. She noted deficiencies in impulse control, judgment, insight and planning. She thought these may compromise the plaintiff’s ability to responsibly manage a large sum of money in a manner that best served his longer term financial needs.

12. Professor Darveniza, a consultant neurologist examined the plaintiff and expressed the view that the plaintiff had significant cognitive and executive dysfunction to the extent that he was basically unemployable and required the provision of a benevolent environment. Professor Darveniza also expressed a view that at a day to day level, although the plaintiff was capable of managing his financial affairs, at a much more complex level he should receive professional help including the intervention of a trustee in the event that compensation is received.

13. Professor Mattick, a consultant psychologist who examined the plaintiff on behalf of the defendant, noted that this was a complex case.

14. On an interlocutory basis I am not in a position to resolve any conflicts on the medical evidence, but I am satisfied that on review of the evidence that I have undertaken, that the plaintiff has made out a threshold case for obtaining the orders sought. In my view, all of these considerations satisfy me that there is a serious concern that the plaintiff should not proceed further in the litigation without the appointment of a tutor, not only in his own interests, but also in the interest of justice, not just to one party, but to both parties.

15. The defendant has argued that if an order was made appointing a tutor that would somehow subtly influence a trial judge into thinking that there was some substance to the plaintiff’s claim for incapacity on account of that factor alone. I find that argument unpersuasive. In this case there is little room for doubt that if the force behind the defendant’s submission in this regard remains a truly live issue at the trial, through able counsel, the defendant will be in a position to highlight and expose the point with due focus and vigour.

16. In balancing the respective interests of the parties at this stage of the litigation I see a great potential for the plaintiff to be significantly disadvantaged if no tutor were to be appointed, such that an injustice could arise. On the other hand, the potential disadvantage to the defendant by such a course, being some difficulty to discern elements of costs, is not apparent. In fact I consider that the defendant would be advantaged and greatly protected by the interposition of a tutor in this case in the event that there were to be settlement negotiations.

Disposition

17. I therefore make the orders sought by the plaintiff, noting that this does not preclude the defendant from agitating at the trial the issues of concern she has over the plaintiff’s alleged brain damage and brain dysfunction. The defendant remains at liberty to fully explore those issues at the trial.

Orders

18. I therefore order:

(a) Pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005, the plaintiff’s father, Mourad Gergis be appointed as the plaintiff’s tutor in these proceedings;

(b) The costs of this motion are to be costs in the cause;

(c) Exhibit 1 may be returned.