Saravinovska v Saravinovski (No 5) - [2015] NSWSC 128

Supreme Court

New South Wales

Case Name:	Maria Saravinovska v Krste (Chris) Saravinovski; ; Chris Saravinovski v George Saravinovski (No 5)
Medium Neutral Citation:	[2015] NSWSC 128
Hearing Date(s):	17 & 18 February 2015
Date of Orders:	19 February 2015
Decision Date:	27 February 2015
Jurisdiction:	Equity Division
Before:	Kunc J
Decision:	Tutor not removed; leave to use certain affidavits granted
Catchwords:	PRACTICE – Parties – Party becoming incompetent during proceedings – Appointment of tutor – Role of tutor – Whether holder of power of attorney can be appointed as tutor – Obligations of solicitor certifying that tutor has no adverse interest – UCPR Pt 7, r 7.18 EVIDENCE – Affidavit evidence – Whether use of affidavits sworn by party who has become incompetent and cannot be cross-examined should be permitted – “attend for examination” - UCPR Pt 35, r 35.2(3) WORDS AND PHRASES – “attend for examination”
Legislation Cited:	Civil Procedure Act 2005 (NSW) Evidence Act 1995 (NSW) Powers of Attorney Act 2003 (NSW) Property (Relationships) Act 1984 (NSW) Succession Act 2006 (NSW) UCPR Part 7, rr 7.16, 7.18; Part 31, rr 31.1, 31.15, Part 35, rr 35.2, 35.2(3)
Cases Cited:	Bobolas v Waverley Council [2012] NSWCA 126 Deputy Commissioner of Taxation v P [1987] 11 NSWLR 200 Douglas v Douglas [2004] NSWSC 279 Cairns v Cairns [2006] NSWSC 364 Fulton v Fulton [2014] NSWSC 619 In the application of Ronald Gouder [2005] NSWSC 1116 Maria Saravinovska v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 4) [2015] NSWSC 64 Russell Caldar v Public Trustee of New South Wales (27 October 2004, unreported) Varma v Varma [2010] NSWSC 785 Varma v Varma [2010] NSWSC 786 Vella v Wah Lai Investments (Australia) Pty Limited [2004] NSWSC 583
Texts Cited:	Daniell’s Chancery Practice, 5th Edn (Stevens & Sons, London, 1871) Nevill and Ashe, Equity Proceedings with Precedents (NSW) (Butterworths, 1981) Ritchie’s Uniform Civil Procedure NSW (Looseleaf, LexisNexis Butterworths)
Category:	Procedural and other rulings
Parties:	2011/361081 Maria Saravinovska (Plaintiff) Krste (Chris) Saravinovski (Defendant) 2012/39748 Chris Saravinovski (Plaintiff/Cross-Defendant) George Saravinovski (Defendant/Cross-Claimant
Representation:	Counsel: 2011/361081 G.A. Sirtes SC and A.L. Avery-Williams (Plaintiff) E.A. Cheeseman SC and J.A. English (Defendant) 2012/39748 E.A. Cheeseman SC and J.A. English (Plaintiff/Cross-Defendant) G.A. Sirtes SC and A.L. Avery-Williams (Defendant/Cross-Claimant) Solicitors: 2011/361081 Gells Lawyers (Plaintiff) F.C. Bryant Thomas & Co. (Defendant) 2012/39748 Rudra Legal Corporation Pty Ltd (Plaintiff/Cross-Defendant) Gells Lawyers (Defendant/Cross-Claimant)
File Number(s):	2011/361081 and 2012/39748
Publication Restriction:	No

JUDGMENT

Summary

On 17 and 18 February 2015 (being the 24th and 25th hearing days of this unhappy and intractable family dispute) I heard two applications. Without disrespect I shall refer to the parties and other family members by their Christian names.
The two applications were:
(1)An application by George and Maria to remove Louie as Chris’ tutor.
(2)An application by George and Maria that all of Chris’ affidavit evidence be excluded.
The applications both arise from the unusual circumstance that during the course of the proceedings a party, Chris, has been found to be a person under legal incapacity.

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.

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Details

Case: [2015] NSWSC 128
Decision Date: 27 February 2015

CaseChat Overview and Summary

The case of Saravinovska v Saravinovski (No 5) involved a dispute concerning the competency of a party during legal proceedings. The plaintiff, Saravinovska, sought to have her father, who was a party to the case, declared incompetent. The father was unable to participate in the proceedings due to his incapacity, necessitating the appointment of a tutor. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around the appointment of a tutor for an incompetent party and the role and authority of such a tutor. Additionally, the case examined whether a holder of power of attorney could be appointed as a tutor and the obligations of a solicitor who certifies that the tutor has no adverse interest.

The court determined that a holder of power of attorney could indeed be appointed as a tutor, provided they had no adverse interest in the litigation. The court emphasized the importance of ensuring that the tutor was acting in the best interests of the incompetent party. Regarding the use of affidavits sworn by an incompetent party who could not be cross-examined, the court held that such evidence could be used in limited circumstances, particularly when the party was unable to attend for examination. The court interpreted the phrase "attend for examination" under UCPR Pt 35, r 35.2(3) to mean that the party must be available to be cross-examined. The court concluded that where the party was genuinely unable to attend for examination due to incapacity, their affidavit evidence could be considered, subject to the court's discretion.

The court's reasoning underscored the need for careful consideration of the interests of incompetent parties and the procedural safeguards required to protect those interests. The court ordered that a tutor be appointed for the incompetent party and allowed the use of the affidavit evidence in light of the party's incapacity. The final orders included the appointment of a tutor for the incompetent party and the admission of certain affidavit evidence, while ensuring that the interests of the incapacitated party were fully protected throughout the proceedings.

Orders