This matter comes before the Court by way of an amended notice of motion filed on 28 November 2019 on behalf of the plaintiff seeking orders that:
1. pursuant to r 7.18(1)(b) of the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR"), the Court grant leave to remove Jeani Malin as the plaintiff's tutor in these proceedings;
2. the plaintiff be granted leave to file the amended statement of claim annexed and marked "A"; and
3. a declaration be made pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the plaintiff is capable of managing his own affairs.
The plaintiff's motion was originally listed on 3 December 2019 before me. At that time I raised a concern as to whether the application to remove Jeani Malin as tutor could be made at this time if the parties had already reached agreement as to a settlement. I questioned whether the appropriate application might have been an application for approval of the settlement.
The matter was adjourned until today, 5 December 2019, so that the parties could consider the issue that I raised. Ms Welsh, who appears for the plaintiff, informed me today that if I made the orders sought in the amended notice of motion, the plaintiff would be accepting the defendant's offer of settlement. This means that I need not be concerned that the plaintiff is seeking removal of the tutor after settlement, although that could occur if the court is satisfied that the plaintiff was not under a legal incapacity at the time.
Mr Bridges-Webb, who appears on behalf of the defendant, has added his consent or support to the course proposed by the plaintiff.
Although the plaintiff is over eighteen, the nature of the disabilities from which he suffers led to Ms Welsh adopting an appropriately cautious approach to the application, that is, rather than just filing a notice of ceasing to act as tutor because the plaintiff is over the age of eighteen, she sought to ensure that the Court is satisfied that the plaintiff is capable of managing his own affairs.
Hence, Ms Welsh seeks a declaration in the terms sought in the amended motion, and if that declaration is made, she seeks to file a notice of ceasing to act as tutor.
The effect of the filing of the notice of ceasing to act as tutor will of course be that the plaintiff may enter into a settlement if he wishes to, and he will not require the approval of the Court to do so.
The plaintiff, who is currently nineteen years of age, was born on 2 February 2000. He alleges that he sustained injury during his birth as a result of the negligence of the defendant, the Sydney Local Health District trading as Royal Prince Alfred Hospital. The particulars of his claim are set out in the amended statement of claim.
There are a number of particulars of negligence relating to the alleged excessive administration of oxytocin during delivery, and the process by which there was an alleged delay or failure to deliver despite the condition and the symptoms of the plaintiff's mother. It is not necessary that I detail further the nature of the claim against the defendant as this application relates to the removal of the tutor and the capacity of the plaintiff rather than whether I should approve any compromise settlement.
The plaintiff has been proceeding by way of a tutor, being his mother, because when he commenced the proceedings he was under the age of eighteen.
He is currently undertaking a TAFE course in landscape design. He is living with his mother. He is operating his own lawn-mowing business.
He does suffer from some ongoing disabilities which include a tremor and abnormal movement of fingers in his left hand; a degree of incoordination; anxiety; and a reduction in cognitive skills which suggest that he is of low to average intelligence. Having said that, he received an ATAR of 85 in the HSC.
The application to remove Jeani Malin as the tutor is brought under r 7.18(1) of the UCPR which is in the following terms:
7.18 Court may appoint and remove tutors
(1) In any proceedings in which a party is or becomes a person under legal incapacity -
(a) if the person does not have a tutor, the court may appoint a tutor, or
(b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor.
A tutor may be removed where the person concerned has ceased to be under a legal incapacity. A person under legal incapacity is defined in s 3 of the Civil Procedure Act 2005 (NSW). It includes a child under the age of eighteen years and an incommunicate person, being any person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs.
As observed by Hallen J in Rappard v Williams [2013] NSWSC 1279 at [76], consideration of whether a person is under a legal incapacity is always a task and time-specific matter depending upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time.
In Stokes v McCourt [2014] NSWSC 61 at [31], McDougall J stated that it is necessary to ask whether the relevant party, in this case the plaintiff, can deal with the issues in the proceedings with the assistance of appropriate explanation from his or her lawyers and experts retained. This must extend to seeking advice on prospects or on evidence, considering and evaluating risks, costs and reward, dealing with the lawyers in the preparation of the case, and being able to give informed instructions as to settlement.
The Court's powers in respect of tutors including the appointment and removal of a tutor are necessarily protective. The question as to whether the plaintiff is capable of managing his own affairs is one which is related to a consideration of the need for a tutor, as was considered in Gibbons v Wright (1954) 91 CLR 423 at 434-8; [1954] HCA 17.
In CJ v AJK [2015] NSWSC 498 at [27]-[34], Lindsay J summarised the authorities relating to the question of the capacity for self-management albeit in a different context.
It is not necessary for me to repeat that summary. I adopt the principles.
The question must be informed by the evidence. As I have already noted, the plaintiff did well in the HSC and is now running his own business. He gained entry into the Bachelor of Design (Product Design) at the University of South Australia. As he says in his affidavit sworn 26 November 2019 he is saving money, having already saved enough money to purchase a motor vehicle for the purposes of his business.
He manages the financial accounts of his business and is developing his business. He says he is very conscious of the need to manage his money carefully in order that he can have accommodation and pay for his everyday expenses. He says that he cares about his financial security and plans to purchase a house with any settlement funds that might be received. He says that he plans to invest the balance of the funds in a mixture of accounts and other products following consultation with a financial adviser.
His mother, the tutor, has sworn an affidavit dated 12 November 2019. She wishes to be removed as the tutor and supports the proposal that the plaintiff is capable of managing his own affairs. As she says, whilst the plaintiff struggles with interpersonal relationships, he is very smart and extremely capable in many other areas of life and excels at those things he is interested in.
She observes that he is keenly interested in being independent, and manages money in a very strict way. She does not consider that he will be prone to exploitation because he loves his independence and understands keenly the need to have money to finance his independence.
She goes on to make further comments about the way he runs a business, and that he is likely to be adversely affected by the imposition of a financial manager upon him. She thus requests that she be removed as the tutor in these proceedings.
The plaintiff also relies on affidavits of his solicitor, Lewis Atkinson, dated 30 October 2019 and 28 November 2019. Annexed to those affidavits are a number of medical reports which have been obtained for the purposes of these proceedings. Annexed to the affidavit of 28 November 2019 are reports from Dr Chris Rikard-Bell dated 12 November 2019 and 27 November 2019.
In his report of 12 November 2019, Dr Rikard-Bell questioned whether the plaintiff would be able to manage a large amount of money, and formed the view that assistance would be required in the nature of a more formal type of assistance, possibly a trustee, although he observed that the plaintiff is quite clearly able to manage his money generally. However, in his further report of 27 November 2019, he reviewed further evidence including the evidence of the plaintiff's mother and of the plaintiff himself. He noted that since his last review of the plaintiff which was back on 1 April 2019, the plaintiff had commenced his business and had been progressing well in the ways upon which I have already commented.
He referred to the incident of 2017 (when the plaintiff was temporarily using marijuana and struggling to cope with a stressful environment at school), which had not been repeated. He had not used any drugs for the last two and a half years. That incident had given rise to the suggestion of schizophrenia but that suggestion was only that. It was a suggestion that was not borne out subsequently and appears to have been related to an episode referable to the plaintiff taking marijuana.
In any event, Dr Rikard-Bell said that having regard to his subsequent analysis in the further information provided to him, he was happy to revise his opinion and would support the proposition that the plaintiff would be able to appropriately manage a large sum of money, and that supervision is not necessary.
In his earlier report of 17 April 2019, Dr Rikard-Bell referred to the plaintiff being of normal intellectual ability. That is, that the plaintiff understands how to give legal advice and how to give legal instruction. He understands the function of the Court. He understands that a lawyer represents him. Doctor Rikard-Bell says he does have the capacity to understand legal advice and give instructions.
For the purposes of this application, I have had regard to the extensive medical material provided to me. Much of the earlier concerns relate to the plaintiff's psychiatric state while still at school. The Plaintiff's own evidence and that of his mother is compelling and he is demonstrating his capacity in running a successful business.
In all the circumstances, I consider that the plaintiff is capable of managing his own affairs. In my view, he is no longer a person under a legal incapacity within the meaning of that term in the Civil Procedure Act and UCPR.
[2]
Orders
Accordingly, I make the declaration sought pursuant to s 75 of the Supreme Court Act 1970 (NSW) that the plaintiff is capable of managing his affairs.
In the circumstances, I also grant leave to remove Jeani Malin as the plaintiff's tutor in these proceedings pursuant to r 7.18(1) of the UCPR.
I also grant leave to the plaintiff to file the amended statement of claim which is annexed and marked "A".
The plaintiff seeks an order that the defendant pay the costs of the application. That order is not opposed by the defendant, and in the circumstances, I order that the defendant pay the plaintiff's costs of the motion.
[3]
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Decision last updated: 10 December 2019
Parties
Applicant/Plaintiff:
Malin
Respondent/Defendant:
Sydney Local Health District t/as Royal Prince Alfred Hospital