Wright v Optus Administration (No 3)
[2013] NSWSC 1710
•21 November 2013
Supreme Court
New South Wales
Medium Neutral Citation: Wright v Optus Administration & Anor (No 3) [2013] NSWSC 1710 Hearing dates: 21 November 2013 Decision date: 21 November 2013 Jurisdiction: Common Law Before: Campbell J Decision: The title to these proceedings, and all the pleadings and court documents in the court file, be amended to designate the plaintiff as Glen Wright by his Tutor James Stuart Wright as plaintiff
Catchwords: PRACTICE AND PROCEDURE - application for appointment of a tutor under r 7.14 Uniform Civil Procedure Rules 2005 (NSW) - no question of principle Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Interlocutory applications Parties: Glen Wright (plaintiff)
Optus Administration Pty Ltd (first defendant)
IPA Personnel Pty Limited (second defendant)Representation: Counsel:
RA Cavanagh SC with CJ Callaway (plaintiff)
JB Simpkins SC with DF Villa (first defendant)
W Reynolds (second defendant)
Solicitors:
Firths (plaintiff)
Hunt & Hunt (first defendant)
Sparke Helmore Lawyers (second defendant)
File Number(s): 2009/297493
EX TEMPORE JUDGMENT
Mr Cavanagh of senior counsel seeks to have James Stuart Wright, the brother of the plaintiff, appointed tutor for the plaintiff in these proceedings. Mr Simpkins, also of senior counsel, on behalf of the first defendant, does not concede that the plaintiff is a person under a legal incapacity for the purpose of the Uniform Civil Procedure Rules2005 (NSW), but acknowledges that there is evidence in the proceedings which, if accepted, would support such a finding. That evidence consists, inter alia, of the evidence of the plaintiff at transcript page 45, line 36, to page 46, line 5; the evidence of his father at transcript page 271, lines 20-30; page 272, line 40 and page 273, line 5, as well as the evidence of two treating psychiatrists. The first is Doctor Peter Sternhell who treated the plaintiff until 8 September 2009, and Doctor Gordon Davies who treated the plaintiff for a long period thereafter. Both psychiatrists have given evidence in documentary form only but both have given evidence to the effect the plaintiff's psychiatric condition (diagnosed by them independently of each other) impedes his management of his affairs, including his financial affairs.
If that is my finding in due course, r 7.14 Uniform Civil Procedure Rules will be engaged. That rule is in the following terms:
A person under legal incapacity may not commence or carry on proceedings except by his or her tutor.
I should acknowledge that there is contrary evidence and, in particular, the plaintiff was cross-examined, and I have received other evidence supporting this cross-examination, about the fact that, at least between 2004 and 2008, he was seeking funds from the workers compensation insurer to enable him to start his own small business making horse rugs and equipment, and dog coats. The suggestion that he regarded himself as, and was considered by his doctors to be, capable of engaging in this small business is evidence which in due course may persuade me there is no legal incapacity.
However, as it is arguable that he is under a legal incapacity, it seems to me appropriate that a tutor be appointed at this time given that it would be inappropriate for me to make a final decision about that fact until I have had the benefit of hearing all the arguments that counsel wish to put in relation to it. For those reasons, I order that the title to these proceedings, and all the pleadings and court documents in the court file, be amended to designate the plaintiff as Glen Wright by his Tutor James Stuart Wright as plaintiff.
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Decision last updated: 25 November 2013
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