This matter came before me in the Duty List of 11 September 2015 to determine an application by Ryan Klewer, the plaintiff's younger brother, to allow him to be released from his role as tutor for the plaintiff. Mr Klewer had been acting in that capacity since December 2012, but felt unable to continue.
Having heard from both parties, I made orders discharging Mr Klewer from further acting as tutor and, in the absence of any person or agency able to act as tutor, and having regard to the extended history of the matter, staying the proceedings pending the appointment of a tutor.
These are my reasons for making those orders.
[2]
Brief History of the Matter
The matter has a lengthy and, in some respects, unfortunate history. It is of some utility to set out the history of the proceedings, at least in brief.
The plaintiff was born on 2 February 1988 and is now aged 27 years.
In February 1992, at the age of four years, the plaintiff was admitted to the Royal Alexandria Hospital for Children where he underwent a left pterional craniotomy and subtotal excision of a brain tumour. A further craniotomy was performed in March 1992. The plaintiff was discharged on 13 March 1992.
He was re-admitted on 4 April 1992 due to an infection and osteomyelitis, and underwent further surgery on 6 April 1992 to remove an infected section of bone.
A Statement of Claim was filed on the plaintiff's behalf on 22 January 2009. It alleges negligence by staff of the Royal Alexandria Hospital, as it was in 1992, in failing to properly treat the plaintiff's tumour, and the subsequent infection and osteomyelitis. The negligence was particularised as follows in the Statement of Claim filed on 22 January 2009, at [14]:
"i. They failed properly to treat the Plaintiff and in particular his tumour, infection and osteomyelitis;
ii. They failed adequately to heed and/or disregarded the Plaintiff's symptoms;
iii. They caused or permitted the Plaintiff to suffer the injuries hereinafter set out;
iv. They failed to give the Plaintiff any or any adequate warning of the danger to which he was exposed;
v. In the premises they failed to take all reasonable care for the health of the Plaintiff."
The plaintiff's originating Statement of Claim was filed without an expert report contrary to the requirements of r 31.36 of the Uniform Civil Procedure Rules 2005 ("UCPR").
Despite orders from the Court, the plaintiff failed subsequently to file or serve an expert report supportive of the claims of negligence. That failure prompted the defendant to file a motion on 26 August 2009 seeking summary dismissal for want of due despatch.
The motion was before Rothman J on 29 October 2009 and 14 December 2009, with judgment handed down on 3 February 2010: Klewer v The Royal Alexandria Hospital for Children [2010] NSWSC 18.
His Honour referred to the plaintiff's failure to serve expert medical evidence on the defendant, noting that a medical report that had been obtained had not been served or filed and (inferentially) did not assist the plaintiff. The lawyers then acting for the plaintiff had withdrawn from the matter after obtaining the unserved medical evidence.
Rothman J was prepared to allow the plaintiff some short further time to obtain evidence in support of his claim, but warned that at [17],
"Further delays, either unexplained or as a result of a failure to identify liability in the Hospital, may occasion a different result."
On 12 March 2010 two reports from Dr Elizabeth Lewis, neurosurgeon, were filed and served by the plaintiff.
An Amended Statement of Claim was filed on 20 April 2010. The amended claim provided further particulars of the alleged negligence, being that, at [5],
"The Defendant:
(a) Placed the Plaintiff into a head down position.
(b) Did the matter referred to in paragraph (a) above in the circumstances where:
i. The nursing staff inappropriately decided to place the Plaintiff in that position;
ii. The nursing staff inappropriately did not raise the matter with a doctor before acting;
iii. The nursing staff inappropriately decided to place the Plaintiff in that position in response to the Plaintiff's drop in blood pressure;
iv. The nursing staff inappropriately did not raise the drop in blood pressure with a doctor before acting;
v. The nursing staff were not appropriately qualified to decide whether to not to place the plaintiff in that position;
vi. That position was not appropriate for the Plaintiff by reason of the Plaintiff not normally being of low blood pressure;
vii. That position was not appropriate for the Plaintiff by reason of the Plaintiff's recent neurosurgical procedure;
viii. The cause of the Plaintiff's drop in blood pressure was not determined; and
ix. That position was dangerous for the Plaintiff because swelling caused by that position caused ischemia and cell death resulting in damage to the fibre tracks taking the motor supply down to the arm and leg.
(c) Failed to have in place a post-operative treatment plan that prevented the Plaintiff being positioned head down."
On 29 July 2010 a defence to the Amended Statement of Claim was filed. The defendant denied that any of its servants or agents had acted in the manner alleged by the plaintiff. Liability was denied.
Particulars of the injuries said to have been received by the plaintiff were filed on 23 August 2010. The injuries particularised include swelling in the brain, impaired motor control of the right arm and leg, right sided weakness, and secondary injuries to the spine, hip, and left leg. A number of disabilities were noted.
There was then a lengthy delay in the claim being advanced. Although the reasons for the many adjournments are not always clear from the Court file, it appears that there were issues connected with the plaintiff assembling evidence, with his capacity to conduct the litigation himself, and with his legal representation.
On 21 March 2012 a joint expert conference was held and a Joint Expert Report was finalised. A copy of that report is in evidence (as annexure A to the affidavit of Victoria Hoeben of 10 March 2015). It records the opinions of Dr Elizabeth Lewis (for the plaintiff) and Dr Warwick Stening (for the defendant), both neurosurgeons. Amongst the doctors' conclusions was the following, at [13],
"There is no evidence to show that the alleged events caused the disability. Theoretically it may have contributed to an adverse outcome. In practice, having had three subsequent surgeries, it is difficult to quantify… Any increase in the disability would be small and difficult to measure."
The "alleged events" asserted to have caused injury to the plaintiff is the asserted actions of nursing staff in placing the plaintiff in a "head down" position for a period of four or five hours on 20 February 1992. The only evidence for such a thing occurring comes from the plaintiff's mother, Lucy Klewer. Nothing in the hospital or nursing notes confirms that such treatment was applied, and neither has any nurse involved in the plaintiff's care in 1992 acknowledged having taken this action.
An Amended Statement of Particulars was filed on 23 April 2012. The amendment was to delete any reference to the previously particularised loss of function in the plaintiff's right shoulder, arm, or hand.
Due to the plaintiff's incapacity, his brother, Ryan Klewer, was appointed as his tutor in December 2012. His mother, Lucy Klewer, was not able to fill that role, as she was declared a vexatious litigant on 5 February 2010 (Attorney General in and for the State of New South Wales v Klewer (No. 3) [2010] NSWSC 9).
On 14 May 2013 a mediation was held but the claim was not resolved.
Following that mediation, the solicitors who had previously acted for the plaintiff filed a Notice of Intention of Ceasing to Act, on 13 June 2013. The plaintiff and his tutor were thereafter left without legal representation, and were without the means to fund either the litigation, or legal representation.
On 16 August 2013 Adamson J granted a request from the plaintiff's tutor to refer the matter to the Pro Bono Panel for legal assistance. Mr Scotting of Counsel subsequently agreed to act for the plaintiff on a pro bono basis. Having reviewed the evidence relevant to the plaintiff's claim it is clear that counsel gave Mr Klewer advice as to the prospects of the matter and, importantly, as to the issue of costs.
On 24 September 2014 a Notice of Motion was filed by Ryan Klewer seeking an order that he be removed from acting as the plaintiff's tutor. His affidavit of 3 June 2014 was relied upon in support of the motion.
Mr Klewer has experienced some considerable difficulty in acting as his brother's tutor. He deposed in his affidavit that he found it difficult to relay the advice of counsel to his mother and brother, and his efforts to do so had led to disputes and tension in the family. He concluded (at [9] of his affidavit of 3 June 2014),
"I do not believe that I can exercise the role of tutor objectively as I am very concerned for Robert's welfare and do not want to act inconsistently with his wishes."
Inferentially, Mr Klewer wished to act in accordance with counsel's advice, and the plaintiff and his mother did not.
On 22 October 2014 the plaintiff's mother, Lucy Klewer, filed a summons in the Registry of this Court seeking leave to act as the plaintiff's tutor, in lieu of Ryan Klewer. Ms Klewer required the Court's leave to so act because of her status as a vexatious litigant. Her application was made pursuant to s 14 of the Vexatious Proceedings Act 2008. The summons was heard by Garling J, and dismissed, on 7 November 2014.
On 14 November 2014 the tutor's Motion came before Button J. His Honour declined to make the order sought by Ryan Klewer for his removal as tutor in the absence of some better information as to the availability of an alternative tutor: Klewer v Sydney Children's Hospital Specialty Network, formerly the Royal Alexandria Hospital for Children [2014] NSWSC 1639.
Ryan Klewer had understood that the New South Wales Trustee and Guardian could act as his replacement, but that proved not to be the case, at least at that stage.
His Honour noted in his ex tempore judgment at [6] that the New South Wales Trustee and Guardian ("NSW Trustee and Guardian") appeared at the proceedings, and informed the Court that, whilst it might be able to act as tutor at some future stage, there was an essential precondition that was required to be complied with before it could adopt that role. As that essential pre-condition had not been met, the organisation could not be appointed at that time.
The plaintiff advised his Honour through counsel then acting for him that he wished to act for himself in the proceedings, without the assistance of a tutor. He specifically did not wish to have the NSW Trustee and Guardian appointed as tutor (something firmly confirmed by the plaintiff's mother when the matter was before me).
In considering whether it would be appropriate for Robert Klewer to act for himself, his Honour observed, at [9] - [11],
"I think that there are some considerations that give one pause with regard to that.
The first is that in the past, at least, it was felt that it was appropriate that a tutor be appointed.
Secondly, at [3] of the affidavit of Ryan Klewer that was read this morning, it was said that "in or about 1992 Robert suffered brain damage following removal of a tumour on his brain." It was also said, without quoting directly from the affidavit, that a physical injury arose, namely right foot drop and also a right side weakness to his body, which to my mind is suggestive of at least some sort of neurological deficit."
His Honour also observed that there should be some evidence available to the Court as to the plaintiff's capacity to conduct the litigation on his own part.
The matter was adjourned for directions in relation to the hearing of the motion.
There followed numerous listings of the Motion before the Registrar, in which orders were made in an attempt to get the matter ready to be dealt with.
Despite that, the matter has not progressed in any meaningful way since it was before Button J almost a year ago.
In accordance with his Honour's directions, the Registrar set the matter over for directions before the Protective List Judge on 3 December 2014. The plaintiff was required to appear via telephone conference but was unable to be contacted.
On 10 December 2014, the plaintiff appeared via telephone before the Equity Registrar. The Registrar made orders that the plaintiff was to file and serve an affidavit as to his wish to act for himself by 27 February 2015.
Since then, the matter has been before the Common Law Registrar at least four times. Each time the Registrar has made orders that the plaintiff file and serve any further affidavit material in support of his brother's removal and an order permitting the plaintiff to act for himself.
Affidavits of Robert Klewer were filed on 4 March 2015 and 23 April 2015, however it appears that further affidavit material was not forthcoming as a result of delays with medical practitioners.
On the Court's file are a number of reports by Bruce Peterson, a clinical psychologist, dated 24 February 2015, 7 April 2015 and 23 June 2015. In the letters, Dr Peterson recommends that the plaintiff be permitted to handle his own finances and affairs.
An affidavit of Victoria Hoeben was filed for the defendant on 10 March 2015.
There are also a number of letters and e-mail communications from Mr Scotting, who previously assisted the plaintiff on a pro bono basis. His letter of 14 February 2015 to the Registrar sets out the detail of advice given by him to Ryan Klewer as to the prospects of the litigation.
Mr Scotting withdrew from the matter at around that date. The plaintiff is again without legal representation.
[3]
Current Proceedings
On 11 September 2015, the plaintiff appeared before me with his mother, Ms Klewer, via telephone at his request.
Ms Klewer took the Court's telephone call.
Although the plaintiff contends that he can conduct his claim himself without need for a tutor, it was his mother who spoke on his behalf for the majority of the time spent on the telephone. Ms Klewer claimed not to have a speaker or hands free option on her mobile telephone that would permit the plaintiff to hear the proceedings, but assured the Court that "…I can explain everything to him" (at T2:04).
Ms Klewer informed me that her son relied on the report of Mr Peterson of June 2015 in support of his application to act for himself.
That report (in common with others from Mr Peterson) has a number of deficiencies, which I endeavoured to raise with Ms Klewer.
The report dated 24 February 2015, which takes the form of a letter, is directed "To Whom it May Concern". Mr Peterson noted that,
"I am of the opinion that Mr Robert Klewer does not require a tutor as his communication skills fall within normal limits and his comprehension of his circumstances also falls within normal limits."
Mr Peterson's opinion is said to be based on having known the plaintiff for twenty years, and observations of him conducting transactions at a market stall. He concludes by recommending that the plaintiff "be allowed to manage his own affairs and finances".
In his very brief letter, Mr Peterson did not address any real issue connected with the plaintiff's capacity to conduct litigation. He did not refer to or deal with issues previously raised as to the plaintiff's lack of capacity.
In evidence before the Court as part of the Court's file is a report from Dr Brian Parsonage of 28 May 2012. Dr Parsonage, a Consultant Psychiatrist, examined the plaintiff in 2012. He noted that the plaintiff has difficulty remembering things that he reads. The plaintiff told Dr Parsonage that his mother manages all of his finances, including relatively straightforward matters such as credit for his mobile telephone. He found it difficult to make decisions or to express himself to others. He emphasised his reliance upon his mother, telling the doctor "without her I am nothing".
In what he told Dr Parsonage, the plaintiff appeared to have a limited and largely erroneous understanding of costs in civil cases, and of the process necessary for the Court to determine his claim. His interest in pursuing it was, he said, because his mother had always intended to take legal action against the hospital, and because the money received at the end of the litigation would help him move closer to Coffs Harbour. He told the doctor that he was confident of winning his case because his mother had seen what the nurses had done to him and she had told him there was a good chance of success.
Contrary to other evidence before the Court, the plaintiff told Dr Parsonage that his lawyers had expressed confidence in the outcome of the litigation.
Dr Parsonage opined that the plaintiff had significant cognitive impairment and is heavily reliant upon his mother to make decisions for him in most aspects of his life. The doctor concluded that the plaintiff's views about the case were a repetition of those of his mother. Dr Parsonage had considerable reservations about the plaintiff's legal capacity.
The letter relied upon by the plaintiff from Mr Peterson did not refer to or counter any of these matters.
When I raised that with Ms Klewer she asserted that Dr Parsonage's report had been "withdrawn". I infer that she was referring to the fact that the paragraphs of the tutor's affidavit of 3 June 2014 which produced the report had not been read (before Button J). Whilst that is so, the report was separately provided to the Court by Mr Scotting for the tutor and forms part of the evidence before the Court.
Mr Peterson's letter does not, of itself, displace the Court's earlier conclusion that the plaintiff cannot act without the assistance of a tutor.
During the telephone hearing I was able to speak to the plaintiff for only a brief period before his mother again took control of the telephone and spoke for her son.
During the short conversation between the Court and the plaintiff, a number of questions were asked of him in an attempt to determine his understanding of his responsibilities and obligations should he be permitted to manage the litigation personally.
The following exchange was recorded (at T4:38 -T5:11),
"HER HONOUR: …Do you know what it means if your brother is released from acting as your tutor?
PLAINTIFF: Yes, I know what it means. It means he is out of the picture and I am taking over his position.
HER HONOUR: What do you understand that you would then have to do if you took over your brother's position?
PLAINTIFF: I have to defend the matter.
HER HONOUR: Yes.
PLAINTIFF: Yes and--
HER HONOUR: So what--
PLAINTIFF: Sorry?
HER HONOUR: What would be the next thing that you would have to do, do you think, if Ryan is no longer helping you?
PLAINTIFF: I am not a lawyer so I have, I have to have help from my mum, like partly. I can't do it all by myself. I have to have help off somebody."
Soon after, the following was recorded (at T7:14-46),
"HER HONOUR: I know it is really hard for you. If I said you could act for yourself without Ryan to help you what do you think you would do as the next step in getting your case to move ahead?
PLAINTIFF: Well, we have not got enough money for a lawyer and nobody else except me and my mum to proceed in this case.
HER HONOUR: So given that that is a problem what do you think you could do? How do you think you would get your case to go forward?
PLAINTIFF: To proceed?
HER HONOUR: Yes.
PLAINTIFF: Yes, I need the matter to proceed. My mum knows a lot more about the situation than I do to proceed.
HER HONOUR: All right. So you would really need to rely on your mum to get things moving and to know what to do?
PLAINTIFF: Yes and it shouldn't be like that. My mum is not vexatious.
HER HONOUR: Well she has actually been declared a vexatious litigant by the court, Robert.
PLAINTIFF: Yes but that is - that should be overturned because that was a very very old - yes, a lawyer said that, like a judge said that a very, like a long time ago and it should be overturned.
HER HONOUR: That is not something that I can--
PLAINTIFF: Okay, I am going to hand you over to my mum now because she knows."
Ms Klewer thereafter took the telephone, complaining that the Court had raised "issues" about her "character" that were not material to the matter to be determined. She accepted that she had taken the telephone from her son, preventing the Court from further hearing from him directly, but asserted that it was necessary that she do so because "…you are attacking his mother…" (at T8:13).
As is apparent from the transcript, the issue of Ms Klewer's status as a declared vexatious litigant was not raised by the Court, and there was no attack upon her or her character.
Ms Klewer went on to (quite forcefully) assert that her son was "of sound mind" and was capable of acting for himself. She regarded any order refusing to allow the plaintiff to act without the assistance of a tutor as insulting to him, and treating him as a person of "sub-intelligence" (at T11:15). Ms Klewer's current view is in contrast to her apparent views in October and November 2014, when she must have regarded her son as requiring the assistance of a tutor, since she made application to act in that role herself.
[4]
Consideration
Despite the lapse of 10 or so months since the refusal of Button J to determine the tutor's motion (in the absence of considered evidence as to the plaintiff's capacity) the matter has not advanced.
That seems to be emblematic of the overall conduct and history of the matter.
Liability is asserted to have arisen in 1992 but a claim was not filed until 2009. Once filed, there was a lengthy delay in the plaintiff obtaining and serving the sort of medical evidence that should have been available when the claim was initiated. The force of such medical evidence as the plaintiff had obtained was significantly diluted in conclave. Six years have now passed since the statement of claim was filed and the matter is at an effective standstill. Throughout, the defendant has incurred legal costs.
Although the Court is only marginally better informed than was Button J to determine the motion, I do not propose to further delay the proceedings in the hope of some better evidence being obtained. The history of the matter and the dilatory way in which the plaintiff's claim has been prosecuted militates against such an approach.
Whilst such evidence as is available is unsatisfactory to a degree, the matter cannot be allowed to simply languish, with all the attendant costs to the Court and the parties.
Mr Klewer's affidavit sets out his reasons for wishing to be discharged from further acting as his brother's tutor. Neither the plaintiff nor the defendant required Mr Klewer for cross-examination, and neither party sought to contradict Mr Klewer's evidence. In those circumstances, I accept it.
Mr Klewer is now working, studying, and living in Melbourne. That makes for practical difficulties for him in managing the litigation, and in consulting his brother, who lives out of Coffs Harbour.
His role as tutor has additionally led to a degree of disharmony between Mr Klewer, the plaintiff, and the plaintiff's mother, and placed Mr Klewer in the difficult position of believing he should take steps relevant to the litigation which the plaintiff and Ms Klewer object to. This has caused Mr Klewer some distress.
In those circumstances I consider that Mr Klewer should be released from further acting as the plaintiff's tutor. Neither party objected to the Court making orders to that effect, and it would be unconscionable in my view to compel Mr Klewer to continue.
The more difficult question is what to do in the absence of a tutor to assist the plaintiff.
The plaintiff asks that he be permitted to manage the litigation himself and that would be the preferable course if it were possible. It would only be possible if the plaintiff has the capacity to so act.
The weight of the evidence on that aspect of the matter does not support a conclusion that he does.
Dr Parsonage referred in his report to a degree of cognitive impairment that has left the plaintiff unable to manage many ordinary life activities, and highly dependent on his mother. The letter from Mr Peterson did not address the concerns raised by that evidence. Indeed, as the defendant pointed out (in the affidavit of Ms Hoeben) the letter from Mr Peterson was most unsatisfactory, and did not deal with matters relevant to the plaintiff's legal capacity.
My own observations during both my brief discussion with the plaintiff on 11 September 2015, and in the lengthier discussion with his mother, did not displace concerns about the plaintiff's capacity.
It seemed clear from my brief exchange with the plaintiff that he would be considerably disadvantaged in the conduct of his case by his inability to satisfactorily comprehend legal proceedings. It is most unlikely in my view that he could navigate the legal system without considerable assistance.
Whilst I note Mr Peterson's opinion, I am not satisfied that his "report" answers important questions which have been raised by medical professionals. The report of Dr Parsonage dated 28 May 2012 advises, for example,
"In my opinion Mr Klewer is not capable of providing considered instructions for the following reasons. Mr Klewer himself believes that he has difficulty understanding things because while he can initially take them in, his ability to retain information is reduced and his ability to then express his understanding of the relevant issues is reduced. Although Mr Klewer does not have gross cognitive impairment as one would find in someone with moderate to severe Alzheimer's Disease, his presentation at interview and the level of care and guidance which he has received throughout his life are all consistent with him having significant difficulty understanding his situation in sufficient detail to give him appropriate instructions.
In addition, Mr Klewer has almost no experience in handling any financial matters which also suggests a significant disability. This is relevant to his capacity to understand, and make decisions in relation to, reasonable settlement amounts and cost implications of proceeding with legal action."
An example of that incapacity may be found in the plaintiff's disregard of the advice received from Mr Scotting. When that advice was raised with the plaintiff during the hearing of the matter, it was quickly dismissed (at T5:13 - T5:49),
"HER HONOUR: All right. Did Ryan talk to you about the advice that he got from Mr Scotting, the barrister who was helping you?
PLAINTIFF: As far as I know he wants out and he is out of the picture now so - could you explain that again, sorry?
HER HONOUR: Yes, of course. I am just wondering whether Ryan spoke to you about the legal advice that he got from Mr Scotting, who is a barrister.
PLAINTIFF: Yes.
HER HONOUR: Did he talk to you about that?
PLAINTIFF: He talked to me and my mum about Ryan's situation.
HER HONOUR: So you spoke to Mr Scotting?
PLAINTIFF: Yes, me and my mum.
HER HONOUR: Okay. Did Mr Scotting talk to you about what he thought should happen with your case?
PLAINTIFF: Yes, he wanted - I think he wanted out as well and I am not - yes, I think he wanted out and he is out as well I think.
HER HONOUR: He is out?
PLAINTIFF: Yes.
HER HONOUR: But what I am wondering is whether he talked to you about what he thought you should do with your case.
PLAINTIFF: Yes, well we know what we want to do is proceed to the hearing.
HER HONOUR: And when you say "we", who is "we"?
PLAINTIFF: Mainly me but my mum also."
The plaintiff's opinion of counsel's advice was a mirror of that of his mother (see T10:9-16).
Whilst a litigant may accept or reject advice from a legal representative, I am concerned that the plaintiff's rejection of Mr Scotting's advice demonstrated not so much a considered position as a lack of understanding of the complexities and costs of the legal system, and an unthinking acceptance of his mother's opinion.
It was apparent during our conversation that the plaintiff deferred to and relied upon his mother in all matters connected with the litigation (and more generally). Ms Klewer having assured her son that he will receive 1.5 million dollars from his suit, the plaintiff has adopted that assurance as an incontestable truth.
The Court's conclusion in that regard is consistent with the opinion of Dr Parsonage.
Considering the medical evidence, and in light of the telephone discussion with the plaintiff, I am not satisfied that he has the capacity to act for himself, and to make difficult legal or financial decisions without disinterested assistance.
It seems inevitable that the assistance the plaintiff would seek would be that of his mother, and Ms Klewer would act on a de facto basis as manager and director of her son's litigation, a role this Court refused to permit her to take on a formal basis.
The plaintiff himself conceded that he would need his mother's assistance if he was to manage the conduct of his case (at T6:15 - 24),
"HER HONOUR: But what I am trying to work out, it is really hard to navigate the court system. It is hard to make your way in the court system.
PLAINTIFF: Yes. That is why, that is why I need my mum's help.
HER HONOUR: I guess that is my concern, Robert, because another judge of this court, not me, but another judge who looked at your case would not allow your mother to help you as your tutor.
PLAINTIFF: Well that's wrong, that's wrong."
The pervasive influence of the plaintiff's mother was evident throughout the telephone conference, and was separately noted by Dr Parsonage.
I have concluded on the (limited) evidence available to the Court that the plaintiff lacks the capacity to act in this matter on his own behalf. Allowing him to do so would do no more than hand the management of the litigation to the plaintiff's mother, and in my view that would be contrary to the interests of the plaintiff.
Having determined that Mr Klewer may be released from his role as tutor, and having found that the plaintiff lacks the capacity to act for himself, the question remains as to the appointment of a tutor to assist the plaintiff.
The NSW Trustee and Guardian advised Button J that it was not in a position to act as tutor as the matter stands. The plaintiff in any event refuses to consider the appointment of the public authority. There appears to be no other real alternative currently available.
Rule 7.18 of the UCPR contemplates a situation where a tutor will be removed but no other person or agency appointed to that role. In such a situation the UCPR provide for litigation to be stayed pending the appointment of a tutor.
Although I am conscious that removing Mr Klewer as tutor in the absence of any other person or agency to take on that role effectively prevents the plaintiff from pursuing his claim at present, it also prevents him from accruing potentially ruinous legal costs in circumstances where there is a very real prospect that an order for costs adverse to him will ultimately be made.
I have also taken the interests of the defendant, a publically funded health authority, into account in determining the matter. The defendant has appeared represented by solicitors or counsel at the many mentions and motions associated with this matter over the last six years. It has prepared its case and retained expert witnesses. Its costs must be considerable, and still there is no reasonable prospect of the case being finalised in the near future.
Resolution of the case at hearing is barely any closer than it was in 2009. The substantial delay in bringing the matter to trial cannot be attributed to the defendant.
There must be some resolution of, at least, the current motion.
Whether the matter can ultimately proceed will depend upon the plaintiff's willingness to permit the NSW Trustee and Guardian to act as tutor. That in turn would necessitate his acceptance of that agency's conduct of the litigation, even if the agency chose to withdraw the plaintiff's claim.
[5]
Orders
I make the following orders:
1. On the application of the plaintiff's tutor, Ryan Klewer, Ryan Klewer is removed as tutor pursuant to r 7.18(1)(b) of the UCPR.
2. In the absence of any person or agency capable of acting in that capacity for the plaintiff, the proceedings are stayed pending the appointment of a new tutor, pursuant to r 7.18(3) of the UCPR.
3. Liberty to the parties to restore the matter to the list within 28 days.
[6]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 12 October 2015