Luu v South Eastern Sydney Local Health District

[2020] NSWSC 666

Supreme Court

New South Wales

Medium Neutral Citation:	Luu v South Eastern Sydney Local Health District [2020] NSWSC 666
Hearing dates:	19 and 29 May 2020
Date of orders:	01 June 2020
Decision date:	01 June 2020
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	(1)    Revoke order 4 made by me on 19 May 2020.  (2)    That Richard Luu be removed as the plaintiff’s tutor.
Catchwords:	CIVIL PROCEDURE – approval – where plaintiff no longer under legal incapacity – removal of tutor – where settlement monies to be paid directly to plaintiff
Legislation Cited:	Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	Tho Duc Luu (Plaintiff) South Eastern Sydney Local Health District (Defendant)
Representation:	Counsel: D Higgs SC with H Chiu (Plaintiff)   Solicitors: Carroll & O’Dea (Plaintiff) Makinson d’Apice (Defendant)
File Number(s):	2018/316656
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By notice of motion dated 26 May 2020, the plaintiff seeks the following orders:

1. That Richard Luu is removed as tutor in the proceedings pursuant to UCPR 7.18 on the basis that the plaintiff is no longer a person under a legal incapacity.

2. Pursuant to s 77(4) of the Civil Procedure Act 2005 that the monies paid into Court by the defendant pursuant to orders made on 19 May 2020 be paid to the trust account of Carroll & O’Dea, the solicitors for the plaintiff.

Background

2. This matter came before me on 19 May 2020 for approval of a settlement in favour of the plaintiff, Tho Duc Luu. Mr Luu was under a legal incapacity by reason of injuries sustained by him in the course of his treatment by the defendant. He therefore commenced these proceedings by his tutor Richard Luu.

3. Upon the basis of evidence filed in support of that application, and with the assistance of a very helpful advice prepared by Mr Higgs SC and Mr Chiu of counsel for the plaintiff, I made orders approving the settlement. One of the orders that I made was in these relevant terms:

4. I order in accordance with s 77(2) of the Civil Procedure Act 2005 that the judgment sum referred to in paragraph 1 of the Consent Order, less any authorised deductions for which the Consent Order specifically or by necessary implication provides, be paid in Court for payment out thereafter to the NSW Trustee & Guardian or as the Court may upon application made pursuant to s 77(3) of the Act otherwise direct.

4. After I had made that order, a discussion ensued between Mr Higgs and me concerning the possibility that the plaintiff was in fact no longer under the legal incapacity that prompted the appointment of his tutor in the first place and that an application to remove the tutor might be made. In that specific context, I adjourned the proceedings to 29 May 2020 in anticipation of such an application being heard on that day.

5. In the events that occurred, the plaintiff’s notice of motion was filed seeking the orders noted above. It was supported by affidavits of the tutor and the plaintiff each dated 26 May 2020 and the further affidavit of William James Madden dated 28 May 2020. I have had particular regard to the matters deposed to in those affidavits.

6. The evidence clearly supports the fact that the plaintiff is now able to make the necessary decisions and give appropriate instructions and no longer remains under any relevant incapacity. The issues that were present and which confronted the plaintiff prior to the commencement of the proceedings and in the early stages have now dissipated and the plaintiff no longer requires the assistance of a tutor.

7. The defendant has not yet paid the approved settlement monies into Court in accordance with my earlier order. That is both fortuitous and convenient. As I have indicated, having regard to the material with which I have now been provided, I am satisfied that the plaintiff is no longer under a legal incapacity, no longer requires a tutor and that, subject to one matter, an order for the payment of the settlement monies directly to him or as he may direct would be appropriate.

8. In the circumstances, I consider that the following orders should be made.

1. I revoke order 4 made by me on 19 May 2020.

2. I order pursuant to UCPR 7.18 that Richard Luu be removed as the plaintiff’s tutor in these proceedings.

9. As foreshadowed, having regard to the fact that the plaintiff is no longer under a legal incapacity, the defendant is at liberty to pay the settlement monies directly to him or as he may direct. No order from me to that effect is required. In the circumstances there is no need for an order in the terms of that sought in paragraph (2) of the plaintiff’s notice of motion.

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Decision last updated: 01 June 2020