Poole by his tutor Poole v Sivris

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 7.18
Cases Cited:	Malin v Sydney Local Health District (t/a Royal Prince Alfred Hospital) [2019] NSWSC 1765 Rappard v Williams [2013] NSWSC 1279
Category:	Procedural and other rulings
Parties:	Plaintiff: Richard Poole by his tutor Max Poole Defendant: Louis Sivris
Representation:	Counsel: Plaintiff: Mr M Nesbeth Defendant: Mr J Connell (solicitor)   Solicitors: Plaintiff: Stacks Goudkamp Defendant: Hall & Wilcox
File Number(s):	2019/236254
Publication restriction:	None

Judgment

1. 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.

2. 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.

3. The affidavit material filed in support of the application is as follows:

1. Affidavit of Thomas Goudkamp sworn 23 April 2020;

2. Affidavit of Thomas Goudkamp sworn on 6 May 2020;

3. Affidavit of the tutor sworn on 7 May 2020; and

4. Affidavit of the plaintiff sworn on 12 May 2020;

4. 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…