District Court
New South Wales
Medium Neutral Citation: Poole by his tutor Poole v Sivris [2020] NSWDC 251 Hearing dates: 15 May 2020 Date of orders: 15 May 2020 Decision date: 15 May 2020 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff’s notice of motion filed on 25 April 2020 granted.
(2) Pursuant to ss 14 and 16 Civil Procedure Act 2005 (NSW) and r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW), Max Poole be removed as tutor of Richard Poole in District Court proceedings 2019/236254.
(3) Grant leave to the plaintiff to amend the statement of claim to remove the tutor, such amended pleading to be filed in 7 days.
(4) Costs of this application to be costs in the cause.
(5) Confirm the hearing date of 20 July 2020.Catchwords: PRACTICE AND PROCEDURE – plaintiff seeks removal of tutor – application supported by the plaintiff’s tutor and solicitors – Rappard v Williams applied – order made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 14 and 16
Uniform Civil Procedure Rules 2005 (NSW), r 7.18Cases Cited: Malin v Sydney Local Health District (t/a Royal Prince Alfred Hospital) [2019] NSWSC 1765
Rappard v Williams [2013] NSWSC 1279Category: Procedural and other rulings Parties: Plaintiff: Richard Poole by his tutor Max Poole
Defendant: Louis SivrisRepresentation: Counsel:
Solicitors:
Plaintiff: Mr M Nesbeth
Defendant: Mr J Connell (solicitor)
Plaintiff: Stacks Goudkamp
Defendant: Hall & Wilcox
File Number(s): 2019/236254 Publication restriction: None
Judgment
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By notice of motion filed on 25 April 2020, the plaintiff through his tutor brings an application for removal of the tutor for the remainder of these proceedings, which are listed for hearing on 20 July 2020 (estimate four days). The defendant neither consents to nor opposes the application brought.
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The plaintiff’s application is supported by the tutor and his solicitors, who have put before me a series of medical reports concerning the plaintiff’s current wellbeing.
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The affidavit material filed in support of the application is as follows:
Affidavit of Thomas Goudkamp sworn 23 April 2020;
Affidavit of Thomas Goudkamp sworn on 6 May 2020;
Affidavit of the tutor sworn on 7 May 2020; and
Affidavit of the plaintiff sworn on 12 May 2020;
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The plaintiff claims damages arising from the circumstances in which he was struck by a vehicle whilst a pedestrian on 11 January 2017. The plaintiff suffered a severe traumatic brain injury with a Glasgow Coma reading of 3 out of 15. His injuries and subsequent treatment are described by Dr Alexandra J Walker in a neuropsychological report dated 25 January 2019 as follows:
“He was treated at St George Hospital (11/1/17 to 21/2/17) and CT brain scan was stated to show right subdural haematoma, right temporal contusion, right cerebral oedema and 3mm midline shift to the left, right basal ganglia and lentiform nucleus haemorrhages, left temporal haemorrhages and left frontal bone fracture. He required EVD and was managed in ICU for raised intracranial pressure. His neurological recovery was slow and he was…
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- Case
- [2020] NSWDC 251
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to determine involved whether the plaintiff had a sufficient basis to seek the removal of his tutor and whether the application complied with the statutory and procedural requirements. The court examined the circumstances under which a tutor could be removed and the appropriate process for doing so, drawing on precedents such as Rappard v Williams to guide its decision. The court considered the plaintiff's capacity to act in his own right and the necessity of the tutor's continued involvement in the proceedings.
The District Court found that the plaintiff's application met the necessary criteria and granted the motion to remove Max Poole as the plaintiff’s tutor. The court issued an order removing Max Poole from his role as tutor and granting leave to the plaintiff to amend the statement of claim accordingly. The court also directed that the costs of the application be costs in the cause and confirmed the hearing date for the case. The decision was based on the understanding that the plaintiff had a legitimate reason to seek the removal of his tutor and that such a removal would not prejudice the defendant's rights.
Orders
Orders of the court
(1) Plaintiff’s notice of motion filed on 25 April 2020 granted.
(2) Pursuant to ss 14 and 16 Civil Procedure Act 2005 (NSW) and r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW), Max Poole be removed as tutor of Richard Poole in District Court proceedings 2019/236254.
(3) Grant leave to the plaintiff to amend the statement of claim to remove the tutor, such amended pleading to be filed in 7 days.
(4) Costs of this application to be costs in the cause.
(5) Confirm the hearing date of 20 July 2020.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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