R v NSW Trustee and Guardian

[2010] NSWSC 1154

CITATION:	R v NSW Trustee and Guardian [2010] NSWSC 1154
HEARING DATE(S):	5 October 2010
JUDGMENT DATE :	5 October 2010
JURISDICTION:	Equity Division Protective List
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	5 October 2010
DECISION:	Tutor appointed.
CATCHWORDS:	PROTECTIVE JURISDICTION – TUTOR – whether Supreme Court has power to appoint tutor for plaintiff in District Court proceedings – whether order should be made in this case.
LEGISLATION CITED:	- Civil Procedure Act 2005 (NSW) - NSW Trustee and Guardian Act 2009 (NSW) Protected Estates Act 1983 (NSW) - s 13(1) - Uniform Civil Procedure Rules 2005 (NSW) – 7.14, 7.15(3), 7.18
CATEGORY:	Principal judgment
CASES CITED:	P v R [2003] NSWSC 819
PARTIES:	R (Plaintiff) NSW Trustee and Guardian (Defendant)
FILE NUMBER(S):	SC P29/2001
COUNSEL:	M. Licha (Plaintiff) Ms C. Phang (Sol) (Defendant)
SOLICITORS:	In person (Plaintiff) NSW Trustee and Guardian (Defendant)

P29/2001 R v NSW Trustee and Guardian

JUDGMENT – Ex tempore

5 October , 2010

1 On 9 September 2003, R was declared to be a person incapable of managing her affairs and the Protective Commissioner, now the NSW Trustee & Guardian, was appointed as her financial manager under s 13(1) of the Protected Estates Act 1983 (NSW), which has now been superseded by the NSW Trustee and Guardian Act 2009 (NSW). Those orders are still in force: P v R [2003] NSWSC 819.

2 By virtue of the financial management order which was made, R is "a person under a legal incapacity", as defined in s 3 of the Civil Procedure Act 2005 (NSW). By Uniform Civil Procedure Rules 2005 (NSW) 7.14(1), a person under legal incapacity may not commence or carry on proceedings except by his or her tutor.

3 UCPR 7.15(3) provides:

“In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee & Guardian Act, the tutor of that person is to be the person who has the management of the person's estate under that Act."

Consequently, until today, R’s tutor in any proceedings in which she was a party would be the NSW Trustee and Guardian.

4 R filed a Statement of Claim in the District Court (DC 104/2008), in which she, as Plaintiff, sued a number of Defendants. The cause of action is said to be medical and professional negligence. Those proceedings were commenced by R without a tutor because the NSW Trustee and Guardian is one of the Defendants and could not appear on both sides of the record.

5 The District Court proceedings are at a stage where the judge managing the case requires R to show cause why the proceedings should not be struck out, for want of a tutor to conduct them on her behalf, in accordance with the requirements of the Rules.

6 By a Notice of Motion filed on 1 September 2010 in this Court, R sought various relief, but the essential relief sought is for the appointment of a tutor to conduct the District Court proceedings on her behalf.

7 Mr Licha, of Counsel, has appeared pro bono on behalf of R and has made submissions on her behalf which I have found most helpful. Ms Phang, of the NSW Trustee & Guardian, has also appeared and has offered very useful assistance to the Court by way of background.

8 I note that R made an application to this Court on 19 May 2010 for the appointment of a tutor on her behalf to conduct the District Court proceedings. That application was declined. Ward J was of the view that the application for the appointment of a tutor in the District Court proceedings, if it was competent, had to be made to the District Court. Apparently, the District Court Judge, who subsequently considered the matter in case management, was of the view that the District Court was not the appropriate Court for the appointment of a tutor.

9 I need not go into the, perhaps complicated, question as to whether the Supreme Court or the District Court was the appropriate court for an application for the appointment of a tutor in the District Court proceedings. I may cut the Gordian knot, as it were, by recourse to the Supreme Court's inherent jurisdiction over protected persons. That jurisdiction, known as the parens patriae jurisdiction, is inherent in a superior court of record, which the District Court is not.

10 I would add, however, that I would consider that this Court has power under UCPR 7.18(1) to appoint a tutor even though the proceedings in question are proceedings not in this court, but are proceedings in the District Court. It is possible, of course, to read Rule 7.18 as conferring on the particular court in which proceedings are being conducted the power to appoint a tutor for a party in those proceedings. However, I do not think that that means that this Court is excluded, either in exercise of power under the Rule or in exercise of its protective jurisdiction, from appointing a tutor "in any proceedings", whether in this court or in another court.

11 On the last occasion this matter came before me, I said that I would require the attendance in person today of the person whom R proposed would act as her tutor in the District Court proceedings, so that I could be satisfied of that person's capacity and fitness to act, quite apart from willingness to act. In particular, I was concerned to inquire whether the proposed tutor would be willing to engage a solicitor to act in the proceedings on behalf of R and would be willing to consult with that solicitor and to take advice. It seemed to me that it would be of no assistance whatsoever in the conduct of the proceedings if the person to be appointed as tutor merely carried out R's instructions without independent analysis and independent judgment, with the benefit of proper legal advice.

12 R's sister, Mrs K, has now come forward to offer herself as R's tutor for the purpose of the District Court proceedings. I have had the benefit of seeing and hearing Mrs K in the witness box. She is a retired lady of 80 years of age, but to my perception she is perfectly alert and able to understand the issues which will confront her for decision in acting as tutor in the District Court proceedings.

13 Mrs K has told me that she is willing to engage and to be guided by a solicitor in the conduct of those proceedings. I accept what Mrs K says in that regard and I am satisfied that, with the benefit of legal advice, she is able to act in R's interests in the conduct of the District Court proceedings. I bear in mind that Mrs K, very frankly, says that, although she loves her sister, she will make up her own mind as to what is in her sister's best interests in relation to the litigation. That, of course, is an essential requirement for somebody who is acting in the position of tutor for a party in the litigation.

14 I am aware of many other proceedings in which R is involved in one way or another and that she has been the instigator in most, if not all, of them. I do not propose to appoint a tutor in any proceedings other than the District Court proceedings at this stage.

15 I note that UCPR 7.14(2) provides that a tutor may not carry on proceedings except by a solicitor unless the court otherwise orders. I wish to make it clear that I have not dispensed with the requirement that the tutor must act by a solicitor. I think that that is a very necessary requirement in the circumstances of this case.

16 I do not think that I can, or should, make any further order relating to the District Court proceedings. Once the District Court is aware that this Court has appointed a tutor, then that Court will have somebody to whom it can properly give directions. No doubt, case management will take its course from there.

17 I order, pursuant to UCPR 7.18(1)(a) and pursuant to the Court's inherent jurisdiction, that Mrs K be appointed as tutor for R in proceedings in the District Court of New South Wales 104/2008.

18 I direct that that order be passed and entered forthwith.

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