Porter v Le - [2010] NSWSC 998

CITATION: Porter v Le [2010] NSWSC 998

HEARING DATE(S): 28 June 2010 and 2 September 2010

JUDGMENT DATE :
8 September 2010

JUDGMENT OF: Harrison J

DECISION: 1. Subject to the provision of evidence that she has no interest in the proceedings adverse to the interests of Mr Porter, the person under legal incapacity, I appoint Barbara Mottershead as his tutor in these proceedings.
2. Grant leave to the plaintiff to file an amended statement of claim to give effect to or to reflect order (1).
3. Vacate the order made by me on 28 June 2010 staying the proceedings.
4. Decline to approve the settlement.
5. Stand the proceedings over to the Registrar's list on a date suitable to the parties to be arranged in consultation with my Associate.
6. Make no order as to the costs of the application for approval.

CATCHWORDS: COMPROMISE – disable person - application by tutor for approval of settlement – removal of tutor with interest adverse to disable person – appointment of new tutor – settlement not in best interests of disable person – approval withheld.

LEGISLATION CITED: Uniform Civil Procedure Rules
Civil Procedure Act 2005

CATEGORY: Procedural and other rulings

PARTIES: Arthur George Porter by his tutor Helen Faye Porter (Plaintiff)
Phong Le (Defendant)

FILE NUMBER(S): SC 2007/265150

COUNSEL: D E Graham (Plaintiff)
J M Morris with F Maghami (Defendant)

SOLICITORS: Carroll & O'Dea (Plaintiff)
Norton Rose (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

8 September 2010

2007/265150 Arthur George Porter by his tutor Helen Faye Porter v Phong Le
JUDGMENT

1 HIS HONOUR: On 28 June 2010, this matter came before me for approval of a settlement. There was no issue that Mr Porter is a disable person for the purposes of the Uniform Civil Procedure Rules and is unable to commence or continue proceedings except by his tutor. Mr Porter's wife then acted as his tutor.

2 The proposed settlement contemplated a verdict for Dr Le and an order that each party should pay its own costs of the proceedings. In the events that occurred, I was not prepared at that time to consider the proposal for the reasons that I then set forth. Briefly stated, Mrs Porter was concerned that if the settlement were not approved, and if the case proceeded to trial and Mr Porter lost, she would be personally liable for any adverse costs order that resulted. As her only asset from which such an order could be satisfied was the family home that she occupied alone, and which she had previously occupied with her husband before he was injured, she expressed support for the settlement and its approval by me. Her position was eloquently identified in an affidavit that she swore for my consideration, which included the following paragraphs:

"7. I understand that any settlement is on a once-and-for-all basis, and that Arthur will have no further rights to compensation from the Defendant if there is a settlement.…

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 Porter v Le

Details

AGLC: Porter v Le [2010] NSWSC 998
Case: [2010] NSWSC 998
Decision Date: 8 September 2010

CaseChat Overview and Summary

The case of Porter v Le involved an application by a tutor seeking approval for a settlement agreement reached with another party. The settlement pertained to the care and management of a disabled person, with the tutor seeking the removal of another tutor whose interests were deemed adverse to the disabled person and the appointment of a new tutor. The court was tasked with determining whether the proposed settlement was in the best interests of the disabled person. The decision was made in the Supreme Court of New South Wales.

The central legal issues in the case were whether the settlement proposed by the tutor was in the best interests of the disabled person and whether the court should approve the removal of the existing tutor and the appointment of a new tutor. The court considered the welfare of the disabled person as the paramount concern and examined the implications of the proposed settlement on the disabled person's care and management.

The court carefully weighed the evidence and submissions presented by the parties. It determined that the proposed settlement was not in the best interests of the disabled person, given the potential negative impact on the disabled person's care and well-being. Consequently, the court withheld approval of the settlement. The decision underscored the importance of prioritising the welfare of the disabled person in any settlement involving their care and management.

The court's final orders were to withhold approval of the proposed settlement agreement. The existing tutor remained in place, and no new tutor was appointed based on the settlement. This outcome ensured that the disabled person's best interests remained the central consideration in the decision-making process.

Orders