4 The defence to the cross-claim substantially refutes the allegations made by the defendant in the original Statement of Claim and seeks that the cross-claim be dismissed.
5 The Notice of Motion is supported by a Form of Consent of Tutor on Appointment on behalf of Godfrey Douglas and an affidavit on behalf of Godfrey Douglas. It is also supported by an affidavit from Anthony Justin Hamer of 16 July 2003 which evidences a certificate given by a Dr Gregory Bennett of an examination carried out by him in the presence of Mr Hamer for part of the interview, and otherwise gives evidence as to the plaintiff's competence to continue with these proceedings. The application is also supported by a certificate by Mr Hamer as to the witnessing of certain documents, and evidencing that a curator under the Protected Estates Act 1983 has not been appointed.
6 The application is opposed by the defendant, it being submitted that there is a conflict of interest such as substantially to make the appointment of Godfrey Douglas inappropriate.
7 The plaintiff has three children resident in Sydney: the defendant, Godfrey Douglas, a medical practitioner, and their brother, Warren Douglas.
8 A will has been executed appointing Mr Hamer and his daughter as executors. That will leaves the estate to be divided between the two sons.
9 A general Power of Attorney under s163B of the Conveyancing Act 1919 has been executed by the plaintiff, appointing her two sons and the wife of Godfrey Douglas as Attorneys. The form of Power of Attorney is in general terms without conditions but unfortunately has not been adequately completed and uses the words "where more than one joint and/or severally…" which is less than clear in its terms, it being desirable to make it clear as to the intention as to operating jointly or otherwise. On the face of it however the document appears to permit any one of the three to operate as Attorney, a situation which I would have thought is less than satisfactory.
10 Mr Friedlander, for the defendant, opposes the appointment of Godfrey Douglas and, having raised the issue on Monday, has now applied under s13 of the Protected Estates Act 1983 ("the Act") for an order that the estate of Thora Douglas be subject to management under the Act. That application was made orally and Mr Friedlander sought dispensing with the Rules to permit that application to proceed. The application is opposed.
11 The question of whether a person is capable or otherwise of continuing court proceedings, which is the application before the Court, is a very discreet issue relating to specific proceedings. The declaration under the Act that is sought on behalf of the defendant in fact would result in all of the plaintiff's property being managed under the Act. It is a general power to deal with the property of the applicant, not a power dealing with specific proceedings before the Court.
12 It seems to me that an application under s13 of the Act ought not be made in relation to this specific application for the appointment of a tutor, as the issues to be determined in that are much wider and would involve the management of the whole of the plaintiff's property, and although that may incidentally cover these proceedings, it would in fact have much wider application. As I have indicated, there is a Power of Attorney enabling the plaintiff's property to be managed. The Power of Attorney provides for the event of the plaintiff becoming disabled and I consider that the question of whether an order should be made under the Act are separate proceedings and should be dealt with as such. I would propose therefore to dismiss the application made under s13 of the Act.
13 Mr Friedlander, for the defendant, has relied on evidence in an affidavit of Godfrey Douglas of 1 July 2003 which, although in form is a reply to a longer affidavit, makes clear that there has not been a close relationship between Godfrey Douglas and the defendant. It also refers to the fact that the plaintiff had proposed changing her will to increase the legacy to the defendant.
14 It is put on behalf of the defendant that because there is a conflict of interest on the part of the proposed tutor with the defendant, it would be inappropriate to appoint him, and further put that he has an interest inconsistent with that of the defendant and is therefore not fit to occupy that position. He is a beneficiary under the will and it is clear that if the will operates, he will obtain one half of the estate anyway. On the evidence before me, the defendant may have some claim on the estate and, as has been shown to the Court, there was a clear intention at some stage on the part of the plaintiff that adequate provision be made for the defendant.
15 Mr Friedlander seeks to rely on a decision of the NSW Court of Appeal of Holt v Protective Commissioner (1993) 31 NSWLR 227 and, in particular, the judgment of Kirby J at p 242 which deals with the competing advantages of appointing a family member or the Protective Commissioner to manage the estate of a protected person. It sets out a series of factors to be taken into account.
16 This application is not an application under the Protected Estates Act 1983. No curator has been appointed. The issue is simply the question of whether the tutor should be appointed.
17 The medical evidence before me of Dr Bennett clearly establishes that the plaintiff is disabled and within the definition in Pt 1 r 8 SCR in that she is an incompetent person who is not a minor but incapable of managing her affairs. It is clear that she is confused in relation to the proceedings and I am satisfied on the evidence before me that the proceedings cannot continue without the appointment of a tutor.
18 Tutors are appointed in all manner of proceedings before this Court and very often have an interest which is inconsistent with that of a defendant or other parties to proceedings. However, the Rules provide that clearly a tutor to a disabled person must not have an interest adverse to the interests of the disabled person and the Rules do not provide that constraint concerning other parties. Clearly, within this family there are going to be difficult matters to resolve, not only in relation to the occupation of the subject premises but matters of management of the estate, and very difficult matters to resolve between the parties in the event of the death of the plaintiff.
19 The purpose of the provisions for the appointment of a tutor is to enable the proceedings to be continued. It is clear on the evidence that there is no interest inconsistent with the interests of the disabled person on the part of Godfrey Douglas, who is a medical practitioner and who is prepared to take on the task of bringing the proceedings. The fact that he may have an interest inimical to that of the defendant is not a factor that I consider ought to be taken into account.