PF v HK - [2016] NSWSC 590

Supreme Court

New South Wales

Medium Neutral Citation: PF v HK [2016] NSWSC 590
Hearing dates: 14, 16 and 21 September and 18 December 2015, and 10 February 2016
Date of orders: 11 May 2016
Decision date: 11 May 2016
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Declare that the defendant is incapable of managing her affairs.

(2) Orders for management of the estate of the defendant to be committed to the NSW Trustee, subject to the NSW Trustee and Guardian Act 2009 NSW.
(3) Order that the proceedings be adjourned to enable the NSW Trustee to consider, inter alia, whether to consent to its appointment as tutor for the defendant (as a plaintiff) in related proceedings in the District Court of NSW.
Catchwords:
PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Protected estate case management
MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Appointment - Management of the estate – Tutor sought for District Court compensation proceedings – NSW Trustee to consider whether to consent to appointment as tutor
Legislation Cited: Motor Accidents Compensation Act 1999 NSW,
NSW Trustee and Guardian Act 2009 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: A v A [2015 ] NSWSC 1778
Bobolas v Waverley Council [2012] NSWCA 126
F v K [2014] NSWCA 39
Murphy v Doman (as representative of the Estate of the Late Min Simpson) (2003) 58 NSWLR 51
Re P [ 2006] NSWSC 1082
Texts Cited: -
Category: Principal judgment
Parties:
Plaintiff: PF, the defendant in personal injury compensation proceedings instituted by HK.
Defendant: HK, the plaintiff in the compensation proceedings
Representation:
Counsel:
Plaintiff: J Morris SC and G Babe (on 14 September 2015) and B Kelleher (on 10 February 2016); J Oldknow, Solicitor (on 16 and 21 September 2015); and A-M Williams, Solicitor (on 18 December 2015)

Defendant: in person
Solicitors:
Plaintiff: Moray & Agnew
Defendant: self represented

File Number(s): 2015/00255121

Judgment

INTRODUCTION

By a summons filed on 31 August 2015, and amended on 7 September 2015, the plaintiff seeks orders to the following effect:

a declaration that the defendant is incapable of managing her affairs (within the meaning of section 41 of the NSW Trustee and Guardian Act 2009 NSW) in respect of proceedings, between the same parties, pending in the District Court of NSW; and

orders providing for the NSW Trustee to be appointed the defendant’s “financial manager” (pursuant to sections 40-41 of the NSW Trustee and Guardian Act 2009) and (pursuant to Part 7 Division 4 (rules 7.13-7.18) of the Uniform Civil Procedure Rules 2005 NSW or upon an exercise of the inherent, protective jurisdiction of the Supreme Court) her tutor for the purposes of the District Court proceedings.

The jurisdiction of the Supreme Court, upon an exercise of the Court’s inherent protective jurisdiction, to appoint a tutor for a party engaged in proceedings in the District Court may be taken as established by the judgment of Young…

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 PF v HK

Details

AGLC: PF v HK [2016] NSWSC 590
Case: [2016] NSWSC 590
Decision Date: 11 May 2016

CaseChat Overview and Summary

The case involved a dispute between PF, the applicant, and HK, the respondent, with the New South Wales Supreme Court exercising its protective jurisdiction over the estate of a litigant in person who was incapable of managing their affairs. The matter concerned the appointment of a tutor for the respondent's estate in relation to a compensation proceeding in the District Court. PF sought an order to allow the NSW Trustee to consider appointing a tutor for HK's estate, as HK had been deemed incapable of managing their affairs due to mental incapacity.

The court had to determine whether the NSW Trustee could be permitted to consider appointing a tutor for HK's estate without the necessity of a court order. The applicant argued that HK's inability to manage their affairs necessitated the appointment of a tutor to handle the estate matters, particularly in relation to the compensation proceeding. The court examined whether the NSW Trustee had the authority to act in such circumstances and whether the appointment of a tutor was warranted.

In its decision, the court found that the NSW Trustee did have the authority to consider appointing a tutor for HK's estate without requiring a court order. The court was satisfied that HK's mental incapacity rendered them incapable of managing their affairs and that the appointment of a tutor was necessary to manage the estate in the context of the compensation proceeding. The court granted the application, allowing the NSW Trustee to proceed with considering the appointment of a tutor for HK's estate.

The final orders of the court directed the NSW Trustee to consider whether to appoint a tutor for HK's estate in relation to the compensation proceeding. The court's decision provided clarity on the procedural steps necessary to manage the estate of a litigant in person who is incapable of managing their affairs and highlighted the role of the NSW Trustee in such circumstances.

Orders