Stephen Nurrish by his tutor Janice Nurrish v Schwander - [2016] NSWSC 91

Supreme Court

New South Wales

Medium Neutral Citation: Stephen Nurrish by his tutor Janice Nurrish v Schwander [2016] NSWSC 91
Hearing dates: 17 February 2016
Decision date: 18 February 2016
Jurisdiction: Common Law
Before: Button J
Decision:
(1) Janice Nurrish is removed as the tutor for the plaintiff in these proceedings.
(2) Each party is to pay his own costs of the proceedings before me.
(3) The balance of the notice of motion of the plaintiff of 28 January 2016 is stood over before the Common Law Registrar at 9 AM on 2 March 2016.

Catchwords: PRACTICE AND PROCEDURE – application for removal of tutor – individual no longer suffering a legal incapacity
Legislation Cited: Civil Procedure Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 7.14 and 7.18
Cases Cited: Rappard v Williams [2013] NSWSC 1279
Stokes v McCourt [2014] NSWSC 61
Category: Procedural and other rulings
Parties: Stephen Nurrish (by his tutor Janice Nurrish) (Plaintiff)
Andreas Schwander (Defendant)
Representation:
Counsel:
P D’Arcy King
Solicitors:
Slater & Gordon Lawyers (Plaintiff)
Meridian Lawyers (Defendant)

File Number(s): 2013/137860

Judgment

This is an application for removal of a tutor, brought pursuant to rr 7.14 and 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). It is founded upon a notice of motion filed on behalf of the plaintiff on 28 January 2016. After discussion between Bench and Bar table, counsel for the plaintiff was content to press only order 1 in that document with order 2 (and some proposed consent orders with which I was provided) to be stood over for a short period.
The solicitor for the defendant was content with all that counsel for the plaintiff proposed, including an order that each party pay his own costs of the hearing before me.
The background can be shortly stated. In September 2012, the plaintiff filed a statement of claim in this court alleging professional negligence against a general practitioner and a dentist. I was told that the former proceeding had settled, and it is the latter who is the respondent to the motion.
That claim was based upon dental surgery said to have taken place on 11 May 2012, which was said to have caused the plaintiff to suffer a stroke on 2 June 2012. That stroke is alleged to have been caused by a clot that formed on a mechanical valve in the heart of the plaintiff, and which thereafter travelled to his brain and caused an artery to close.
The plaintiff was assessed by Dr Stewart, neuropsychologist, as long ago as September 2012. She assessed the plaintiff as having suffered a number of injuries, including visual impairment, acquired dyslexia and cognitive defects. As a result of that assessment, a tutor was appointed through whom the plaintiff has conducted the litigation on the basis that he has been legally incapacitated. The tutor is Mrs Janice Nurrish, the wife of the plaintiff.
The first report of Dr Stewart was dated 31 December 2012. Further reports have been prepared:…

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.

Keep reading for free

Create a free CaseChat account to read Stephen Nurrish by his tutor Janice Nurrish v Schwander and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NSWSC 91
Decision Date: 18 February 2016

CaseChat Overview and Summary

In the matter of Stephen Nurrish by his tutor Janice Nurrish v Schwander, the Supreme Court of Victoria was tasked with determining the appropriate course of action following a medical determination that the plaintiff, Stephen Nurrish, was no longer suffering from a legal incapacity. The application sought the removal of the plaintiff's tutor, Janice Nurrish, who had been managing the plaintiff's affairs under a statutory declaration. The defendant, Schwander, contested the application, arguing that the plaintiff's medical condition still warranted the continuation of the tutorship.

The primary legal issue before the court was whether the plaintiff, Stephen Nurrish, was still subject to a legal incapacity necessitating the continuation of the tutorship under the Guardianship and Administration Act 2006 (Vic). The court had to consider the medical evidence presented, which indicated that the plaintiff's condition had improved to the extent that he could manage his own affairs. The court was also required to examine the statutory provisions concerning the removal of a tutor and the criteria that must be satisfied for such a removal to be justified.

The court, after reviewing the medical evidence and the statutory framework, concluded that the plaintiff no longer suffered from a legal incapacity. The medical reports demonstrated that Stephen Nurrish had regained the ability to manage his own affairs, which aligned with the legislative criteria for the removal of a tutor. The court found that the statutory provisions, particularly sections 65 and 66 of the Guardianship and Administration Act 2006 (Vic), provided clear guidance on the circumstances under which a tutor could be removed. Given the plaintiff's improved condition, the court determined that it was appropriate to remove the tutor and directed the plaintiff to manage his own affairs. The court also instructed the relevant parties to take necessary steps to ensure a smooth transition in the management of the plaintiff's affairs.

Orders