J v O

[2023] NSWDC 360

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

J v O [2023] NSWDC 360

Hearing dates:

06 September 2023

Date of orders:

06 September 2023

Decision date:

06 September 2023

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) By reason of the insufficient notice given to the defendant of the hearing of these proceedings and for service of medical reports, as well by reason of UCPR rr 7.17 and 7.18, the hearing of the assessment of damages is vacated with costs reserved.

(2)   Stand these proceedings over to 27 October 2023 before the List Judge to enable the plaintiff to bring such application for orders as may be recommended by her legal representatives.

(3)   A copy of this decision will be provided to the permanent List Judges in this Court and to the defendant.

(4)   The Court books to remain with the file.

Catchwords:

PRACTICE AND PROCEDURE – defendant suffering comprehension problems requiring the appointment of a tutor – attempt by plaintiff to have a tutor appointed by NCAT unsuccessful – plaintiff obtains default judgment and lists proceedings for assessment of damages – defendant not notified of date of hearing or served with updated medical reports until the day beforehand – hearing date vacated pursuant to UCPR r 29.7 – consideration of UCPR r 7.17 and r 7.18

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 67

Guardianship Act 1987 (NSW), s 9(1)(d)

Uniform Civil Procedure Rules 2005 (NSW), rr 7.17, 7.18, 29.7

Cases Cited:

Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200

Facer v Wolfe [2013] NSWDC 231

Iskandar v Mahbur [2011] NSWSC 1056

Michaletos v Stivactas [1992] ANZ ConvR 90

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

J (Plaintiff)
O (Defendant) (no appearance)

Representation:

Counsel:
Mr Del Monte (Plaintiff)

Solicitors:
Karp O’Neill Lawyers (Plaintiff)

File Number(s):

2021/00362928

Publication restriction:

Suppression of the parties' details

Judgment (EX TEMPORE)

1. HER HONOUR: These proceedings are listed for hearing today for assessment of damages.

2. The plaintiff, by statement of claim filed on 22 December 2021, brought proceedings against the defendant for sexual assaults which occurred in or about 1974 and which were the subject of criminal convictions at the time.

3. The defendant was served with the statement of claim. A statement of particulars was also served, and I have seen from the list of documents attached to it that certain medical evidence was also included, including a report from a psychiatrist which was current at the time.

4. Shortly after these proceedings were commenced, the defendant consulted a solicitor in Taree, where he resided, who provided him with some assistance including representation. It rapidly became apparent to all concerned that the defendant required some form of assistance in the form of a tutor, and very extensive case management of this issue took place before the Judicial Registrar. For example, the plaintiff's former solicitors allowed an extension of time for the defendant to submit an application with the New South Wales Trustee and Guardian, the Judicial Registrar noting that he had…