Re WS

Case [2017] NSWSC 745 27 June 2017

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Supreme Court

New South Wales

Medium Neutral Citation: Re WS [2017] NSWSC 745
Hearing dates: 21 and 28 February, 28 March and 31 May 2017
Decision date: 27 June 2017
Before: Lindsay J
Decision:
(1) A determination that the plaintiff is a person who is not capable of managing his affairs (within the meaning of both section 41 of the NSW Trustee and Guardian Act 2009 NSW and rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW) insofar as those affairs concern the conduct of these proceedings.
(2) Proceedings adjourned for consideration of what, if any, orders should be made (including orders for the appointment of a tutor) consequential upon that determination.
Catchwords:
PROTECTIVE JURISDICTION – Litigant in person – Capacity for management of affairs – Assessment of need for tutor – Functionality the key determinant – Determination task and time specific
MENTAL HEALTH – Guardians, committees, administrators, managers and receivers – Assessment of need for appointment of tutor – Litigant in person – Capacity for self-management – Functionality the key determinant – Determination task and time specific – Capacity to manage ordinary affairs, but not litigation
Legislation Cited: Civil Procedure Act 2005
Crimes Act 1900 NSW
NSW Trustee and Guardian Act 2009 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: (2007) 69 NSWLR 547
[2007] NSWCCA 185
[2007] NSWCCA 341
[2008] NSWCA 70
(2010) 201ACrimR 302
[2010] NSWCCA 91
[2016] NSWCATOD 142
CJ v AKJ [2015] NSWSC 498
IA v TA [2016] NSWCA 179
Perpetual Trustee Company Limited v Mills (2007) 71 NSWLR 1
Rappard v Williams [2013] NSWSC 1279 A v A [2015] NSWSC 1778 at [53]-[82]
Slaveski v Victoria (2009) 25 VR 160
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: WS
Defendant Solicitor: AW
Defendant State: State of NSW
Representation:
Counsel:
Plaintiff: Self represented
Defendant Solicitor AW: N Kabilafkas
Defendant State: TE O’Brien
Solicitors:
Plaintiff: Self represented
Defendant Solicitor AW: HWL Ebsworth
Defendant State: NSW Crown Solicitors

File Number(s): 2007/002659562016/00371747

Judgment

INTRODUCTION

Before the Court are two sets of proceedings in which WS (a litigant in person) is the plaintiff.
The common question for present determination, in both sets of proceedings, is whether the plaintiff is “a person incapable of managing his affairs” within the meaning of section 41 of the NSW Trustee and Guardian Act 2009 NSW and/or rule 7.13 of the Uniform Civil Procedure Rules 2005 NSW.
The defendants contend that he is incapable of managing his affairs insofar as those affairs concern the conduct of the principal proceedings, in which he has sued them.

PROCEDURAL CONTEXT

The active parties in the proceedings are the plaintiff and (as defendants) AW and the State of NSW.
Both sets of proceedings have their historical origins in the fact that, on 29 March 2005, the plaintiff was convicted at Parramatta Local Court of three offences against section 178BB of the Crimes Act 1900 NSW (for which he was fined $300 on each charge and ordered to pay costs) arising from a fraudulent alteration of Cabcharge…

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 WS

Details

AGLC: Re WS [2017] NSWSC 745
Case: [2017] NSWSC 745
Decision Date: 27 June 2017

CaseChat Overview and Summary

In the matter of Re WS, the Court was asked to determine the need for the appointment of a tutor to assist the litigant in managing their affairs, specifically litigation. WS, a litigant in person, presented the case before the court, which needed to assess WS's capacity to manage their affairs, particularly in the context of litigation. The court had to decide whether WS had the necessary capacity to manage their ordinary affairs but lacked the capacity to handle litigation, thereby necessitating the appointment of a tutor.

The primary legal issue before the court was whether WS, despite being capable of managing their ordinary affairs, lacked the specific capacity required to manage their litigation. The court had to balance the functionality of WS in managing their everyday life against their apparent inability to manage the complexities of litigation. The court needed to determine if the need for a tutor was justified based on WS's current ability to manage their personal and financial affairs, while acknowledging their struggle with the intricacies of legal proceedings.

The court concluded that WS was capable of managing their ordinary affairs but lacked the capacity to manage litigation. The court found that the functionality of WS in handling daily tasks did not translate to the ability to manage the complexities of legal matters. The court recognised that the need for a tutor was specific to the context of litigation and not reflective of WS's overall capacity. The court decided that while WS could manage their personal and financial affairs effectively, they required assistance in the context of litigation to ensure their rights were adequately represented and protected.

The final orders of the court were that WS did not require a tutor for the management of their ordinary affairs but did require a tutor for the purposes of litigation. This decision highlighted the court's focus on the specific nature of the tasks at hand and the particular capabilities of WS in different contexts.

Orders