Re P

Case [2006] NSWSC 1082 10 March 2006

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CITATION: Re P [2006] NSWSC 1082

HEARING DATE(S): 3/10/06

JURISDICTION: Equity Division
Protective List

JUDGMENT OF: Young CJ in Eq

EX TEMPORE JUDGMENT DATE: 10/03/2006

DECISION: Court authorises plaintiff to act as if she is the defendant's tutor in all respects concerning the relevant District Court proceedings.

CATCHWORDS: MENTAL ILLNESS [3]- Appointment of tutor- Application by wife to act as tutor for husband in District Court proceedings- Husband's mental state inhibits ability to instruct solicitors- Whether "person under legal incapacity" pursuant to Civil Procedure Act 2005, s 3- Husband does not have mental disability and can express his will- Parens patriae jurisdiction- Husband consented to wife being tutor- Wife authorised to act as husband's tutor in District Court proceedings.

LEGISLATION CITED: Civil Procedure Act 2005, s 3
Supreme Court Act 1970, s 23
Uniform Civil Procedure Rules 2005, Part 7, rule 7.18

CASES CITED: Re SK [2005] 3 All ER 421

PARTIES: The parties are not identifed in Protective List matters

FILE NUMBER(S): SC 34/2006

COUNSEL: A Radojev (P)

SOLICITORS: R E Barros & Company (P)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

YOUNG CJ in EQ

Tuesday 3 October 2006

34/2006 – RE P

JUDGMENT

1 HIS HONOUR: This is an application ostensibly made under Pt 7 r 7.18 of the Uniform Civil Procedure Rules 2005 for the appointment of a tutor. The matter concerns proceedings which are part heard in the District Court at Sydney, No 2398/05.

2 The rule to which I have referred says that if a person does not have a tutor the Court may appoint a tutor. It seems to me that the word "Court" in the rule means the Court in which the proceedings are pending so that the application to appoint a tutor under the rule should be made in the District Court. I am told, however, by Mr Radojev of counsel for the plaintiff, which I fully accept, that he made an application to the learned District Court judge for an order but the judge thought she had no jurisdiction to do so. As her Honour gave no reasons I cannot comment on her decision other than to say that it was wrong. Each Court has the power to appoint a tutor for matters within the Court where the person concerned is, within the definition of the rules, a person under legal incapacity within the meaning of s 3 of the Civil Procedure Act 2005.

3 I could send the matter back to the District Court but we have passed the stage where we make people incur expense by moving things from Court to Court and there are two good reasons in addition for not doing so in this case: First, this must be a borderline case; and, secondly, I have powers under the Court's parens patriae jurisdiction and under s 23 of the Supreme Court Act 1970 which are not available in the District Court.

4 A "person under legal incapacity" is defined in s…

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 Re P

Details

AGLC: Re P [2006] NSWSC 1082
Case: [2006] NSWSC 1082
Decision Date: 03/10/2006

CaseChat Overview and Summary

The case of Re P involved an application by the wife to act as a tutor for her husband in proceedings before the District Court. The central issue was whether the wife could be appointed as a tutor for her husband given his mental state, which inhibited his ability to instruct solicitors. The case required the court to determine if the husband was a "person under legal incapacity" within the meaning of section 3 of the Civil Procedure Act 2005. This required consideration of the husband's mental state and whether he had the capacity to express his will.

The court examined whether the husband had a mental disability that would render him a person under legal incapacity, as defined by the Act. The court concluded that, while the husband's mental state did inhibit his ability to instruct solicitors, it did not amount to a mental disability. Consequently, the husband was not a person under legal incapacity. The court also noted that the husband had consented to the wife acting as his tutor, and this consent was a critical factor in the decision. The court exercised its parens patriae jurisdiction to protect the interests of the husband and, based on the husband's consent, authorised the wife to act as his tutor in the District Court proceedings.

The court's decision was grounded in the husband's consent to the wife acting as his tutor and the absence of a mental disability. The court emphasised that the husband could still express his will despite his mental state, and this was sufficient for the wife to be appointed as his tutor. The court's ruling allowed the wife to represent her husband in the ongoing District Court proceedings, ensuring that his interests were adequately protected.

Orders