The Appointment of a Tutor - The Statutory Basis and the legal Principles
95An application made by a defendant to have a tutor appointed for a plaintiff is a little unusual, although, as Slattery J has noted in Iskandar v Mahbur [2011] NSWSC 1056, at [10], is "not unprecedented" and is "within the scope of Uniform Civil Procedure Rules, rr 7.17 and 7.18".
96Sackar J made the same point in Bowering v Knox & Bowering [2014] NSWSC 1107, at [12] and at [59].
97The form of orders made by Young AJ, relating to the responsibility of the Defendants to locate a suitable tutor, is also not unprecedented. In Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200, Hodgson J was required to deal with an application by a plaintiff for directions concerning the appointment of a tutor for a defendant who, as an infant, was a disable
person within the meaning of the Supreme Court Rules 1970 (NSW). Having had some difficulty finding a tutor, the primary contention of the plaintiff, in that case, was that the court should appoint one of its officers to act as tutor.
98His Honour, at 204, stated that "such an appointment involves significant responsibilities and duties, and unless the acceptance of such appointments falls within the duties of a particular office, I do not think any court official should be so appointed, at least unless that court official freely consented". (Now, UCPR rule 7.15(2)(b) prohibits the appointment of a judicial officer, a registrar or any other person involved in the administration of the court, as a tutor in proceedings.)
99His Honour then added:
"It would appear that the usual practice in the past has been to appoint a solicitor of this Court who has no interest in the proceedings adverse to that of the infant defendant. Rule 62 of the Consolidated Equity Rules of 1902 expressly contemplated this: see also Lawrence v Moyes (1900) 16 WN (NSW) 229 and Sanguinetti v Weaver (1910) 27 WN (NSW) 142. It was, in these circumstances, up to the plaintiff to locate a solicitor, presumably having no association with the plaintiff, who was willing to undertake this task, again presumably on the basis that the plaintiff would indemnify him for his expenses and costs. The application to appoint such a person had to be supported by an affidavit by the solicitor that he had no interest in the subject matter of the proceedings adverse to that of the infant, and that there was no reason so far as he knew why he should not undertake the responsibility of safeguarding the interest of the infant. The application also had to be supported by an affidavit as to the fitness of the solicitor proposed to be appointed."
100His Honour concluded:
"It follows from the above that the Court is not at present in a position to appoint a tutor for the defendant. It will be necessary for the plaintiff to find an appropriate person to act. As I have indicated, a solicitor with no connection with the plaintiff and no interest in the case may well be such an appropriate person. The plaintiff will need to bring an application complying with the requirements of Pt 63, r 7, naming the proposed appointee. If the person is a solicitor, the application may also seek dispensing with compliance with Pt 63, r 3(2)."
101(The plaintiff in that case was the applicant for the appointment of the tutor as the Defendants are in the present case.)
102In Rappard v Williams, one of the cases I drew to the attention of the Plaintiff, at [62] - [83], I dealt with the appointment of a tutor. I wrote:
"A tutor is a person appointed to represent a person under legal incapacity, whether by the Court or otherwise, in accordance with Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 ('the UCPR') (UCPR Dictionary).
The UCPR, Part 7, Division 4 (which includes rules 7.13 to 7.18) describes the way in which persons under legal incapacity may participate in litigation.
Section 3 of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition:
''person under legal incapacity' means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:
(a) a child under the age of 18 years, and
(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007, and
(c) a person under guardianship within the meaning of the Guardianship Act 1987, and
(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009, and
(e) an incommunicate person, being a 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.'
Pursuant to s 11 of the Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR.
UCPR rule 7.13, which has been described as 'a supplementary definition' by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a 'person under legal incapacity' as including 'a person who is incapable of managing his or her affairs'. Otherwise, there is no definition in the UCPR.
Rule 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.
The approval of the Court for the appointment of a tutor is not required. A Court order is only required where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). The fact that a tutor has been appointed after the commencement of the proceedings (and before a mediation) is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: see, for example, Chong v Mo [2010] NSWSC 251, at [70].
A person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. The tutor represents the person and does not pursue a personal interest in the proceedings. These requirements are procedural.
UCPR rule 7.15(6) confers authority on a tutor to bind the person under legal incapacity. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person's estate, or the donee of an enduring power of attorney. However the authority that UCPR rule 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR 'authorise or require a party to do in relation to the conduct of proceedings'. One of the things that the UCPR authorises a party to do is to compromise proceedings.
Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of 'person under legal incapacity' in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' who does not fit within any of paragraphs (a) - (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13.
There is no definition of the meaning of 'managing ... her affairs' in the Civil Procedure Act or in the UCPR. However, there has been discussion, in many cases, as to the meaning of that phrase under the Protected Estates Act 1983 (which has been repealed by s 4 of the NSW Trustee and Guardian Act 2009 with effect from 1 July 2009).
In Application of SJ [2011] NSWSC 372, I wrote, at [17] - [19]:
'A person's capability to manage her, or his, own affairs, was discussed, by Campbell J (as his Honour then was), in Re GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 581. His Honour affirmed the approach stated by Powell J in PY v RJS [1982] 2 NSWLR 70. Powell J had said:
'It is my view that a person is not shown to be incapable of managing his or her own financial affairs unless, at the least, it appears
(a) that she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and
(b) that by reason of that lack of competence there is shown to be a real risk that either
(i) she may be disadvantaged in the conduct of such affairs; or
(ii) that such moneys or property that she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner.'
Young J (as his Honour then was) in H v H (Supreme Court, 20 March 2000, unreported) in dealing with the capacity test, said that dealing with the 'ordinary affairs of man' does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs:
'are more complicated than that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills.'
The reference to 'affairs' is a reference to the whole of the person's affairs or his, or her, affairs generally: P v R [2003] NSWSC 819 at [7]. The cause of the incapacity is irrelevant, although the ability to recognise and protect one's own interests plays a central part in the inquiry (P v R at [9]).'
Thus, without trying to be exhaustive, the management of a person's affairs can include the management of the whole range of practical matters in which that person is involved.
Whether the notion of not being capable of managing one's own affairs that is appropriate for the Protected Estates Act, applies to the definition of 'person under legal incapacity' in the Civil Procedure Act and in the UCPR has been questioned. In Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627, at [156] - [157], Campbell JA wrote:
'There is a question of construction about whether the notion of being not capable of managing one's own affairs that is appropriate for the Protected Estates Act also applies to the definition of 'person under legal incapacity' in the Civil Procedure Act and Uniform Civil Procedure Rules. One reason why it might be argued that there is a difference is that the effect of a person being found to be not capable of managing their own affairs under the Protected Estates Act is that someone else takes over the conduct of all their affairs, while the practical effect of being not capable of managing their own affairs under the Civil Procedure Act and Uniform Civil Procedure Rules is that someone else takes over the conduct of only a specific piece of litigation. Another reason why it might be argued that there is a difference is that, pursuant to section 13 Protected Estates Act, the estate of a person becomes subject to management only after the court has become satisfied that a person is incapable of managing his or her affairs, while the appointment of a tutor is effective without any formal instrument of appointment or any order or decision of a court (UCPR 7.15(1)), subject only to the filing of the tutor's consent to act as tutor, and a certificate signed by the tutor's solicitor to the effect that that tutor does not have any interest in proceedings adverse to the interests of the 'person under legal incapacity' (UCPR 7.16). In relation to somewhat, but not totally, analogous rules of court in England, Chadwick LJ has said, in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [66]:
'... there was no requirement, as such, in the rules for the filing or consideration of medical evidence. If the rule is to work in practice, the test of mental capacity should be such that, in the ordinary case, the need for a next friend or guardian ad litem should be readily recognized by an experienced solicitor.'
Whatever may be the outcome of that particular question of construction, there is another question of construction concerning whether being 'under a legal incapacity in relation to the conduct of legal proceedings' requires the incapacity to exist concerning legal proceedings generally, or concerning the particular legal proceedings in relation to which the appointment of tutor is made. And whatever may be the outcome of that enquiry, there is a question of what is involved in being 'under legal incapacity' in relation to whatever legal proceedings, or type of legal proceedings, is the relevant one. (Chadwick LJ suggests one answer in Masterman-Lister at [58].) None of those questions of construction was argued at the hearing. Nor were they argued on the appeal, so I express no opinion now concerning the correct answer to any of them.'
Whether a person is under a legal incapacity is always a task, and time, specific matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a 'person who is under a legal incapacity in relation to the conduct of legal proceedings' must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of 'person under legal incapacity'.
Chadwick LJ in Masterman-Lister v Brutton & Co (referred to in the passage quoted above) also said, at [75]:
'... the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law - whether substantive or procedural - should require the interposition of a next friend or guardian ad litem ...'.
The 'conduct of legal proceedings' refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24].
In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J observed, at [23], that the question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is 'issue-specific' and 'relates to the facts and subject-matter of the particular case'.
In Re P [2006] NSWSC 1082, Young CJ in Eq considered the evidence pointed to the defendant as a person with 'a mental problem in continuing with the litigation'. He found that the defendant had 'a problem which stops him from giving proper instructions to his lawyers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was proceeding his mouth'.
Finally, I should also refer to Bobolas v Waverley Council [2012] NSWCA 126, in which McColl JA (with whom Macfarlan JA and Tobias AJA agreed) wrote:
'60 In addition to its powers under UCPR r 7.18, the Court has inherent power to appoint a tutor for the purposes of particular litigation under its parens patriae jurisdiction in circumstances where there may be doubt as to whether a person's mental state falls within the statutory definition of 'person under legal incapacity': Re P [2006] NSWSC 1082 per Young CJ in Eq at [8].'
Whether the Plaintiff requires a tutor
Lest it be thought that it has been forgotten, I accept that it is a long standing principle that the law presumes every person to be sane and, in modern times, the principle has been expressed as a presumption that a person of full age is capable of managing his or her affairs: Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, at [36], per Handley JA.
I have also not forgotten that it is a drastic step to interfere with a party's legal right to participate personally, and directly in the proceedings. Where the party resists the proposition that she, or he, is a person under a legal incapacity, it is necessary to scrutinize the evidence relied upon to establish that status carefully."
103Rappard v Williams was followed by McDougall J in Stokes v McCourt (another case drawn to the attention of the Plaintiff). His Honour stated, at [31]:
"If one approaches the question according to the test propounded by Chadwick LJ, then 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. As Hallen J said in Rappard at [78], this must extend to all the aspects of conducting a case at law or in equity. It would thus comprehend 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 generally being in a position, at any given time, to give appropriate and informed instructions on issues that arise to be dealt with. But, as I have said, that task is not to be seen as one undertaken in a vacuum. It is a task to be undertaken with such advice from the lawyers (and where relevant, from experts) as may be required."
104In Rappard v Williams, whilst I referred to a number of passages in the decision of Kennedy LJ in Masterman-Lister v Brutton [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162, I did not refer to a passage, at [18], in which his Lordship quoted, with approval, the test described by Boreham J in White v Fell (England and Wales Court of Appeal (Civil Division), 12 November 1987, unrep) (recently referred to in Dunhill v Burgin [2014] UKSC 18; [2014] 1 WLR 933, by Lady Hale, with whom Lord Kerr, Lord Dyson, Lord Wilson and Lord Reed agreed), at [16]:
"To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice ... Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately ... Finally, she needs sufficient mental capacity to understand and make decisions based upon, or otherwise give effect to, such advice as she may receive".
105I should reiterate, also, that the person must have the capacity to exercise reasonable judgment on a possible settlement: Kirby v Leather [1965] 2 QB 367, at 384.
106There is a dual purpose in the appointment of a tutor - the protection of the person under a legal incapacity and of the processes of the court as these apply to the parties generally: Goddard Elliott v Fritsch [2012] VSC 87, at [552].
107It seems to me that the necessary capacity required will be greater in the case of a litigant who is self-represented. In Murphy v Doman [2003] NSWCA 249, Handley and Tobias JJA, at [2], wrote:
"The cases do not consider the level of mental capacity required for a 'competent' litigant in person, but it cannot be less than that required to instruct a solicitor. It should be greater, because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation."
108In Slaveski v Victoria [2009] VSC 596; (2009) 25 VR 160, Kyrou J (as his Honour then was), at [31]-[32], wrote:
"Where a person is a self-represented party to a proceeding, the level of mental capacity required to be a 'capable' litigant will be greater than that required to instruct a lawyer because a litigant in person has to manage court proceedings in an unfamiliar and stressful situation.
In my opinion, where a plaintiff is self-represented, the following issues are potentially relevant in determining whether he or she is a person under disability for the purposes of r 15.01 of the Rules:
(a) Does the plaintiff understand the factual framework for his or her claims and the type of evidence required to succeed in his or her claims?
(b) Is the plaintiff capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her?
(c) Is the plaintiff capable of assessing the impact of particular evidence on his or her case?
(d) Is the plaintiff able to understand the court processes and the basic rules for conducting his or her case when these matters are explained to him or her?
(e) Is the plaintiff able to understand court rulings made during the trial when they are explained to him or her?
(f) Assuming the plaintiff is able to understand court processes, the basic rules of conducting his or her case and court rulings, is he or she capable of complying with them and directions given by the judge?
(g) Does the plaintiff understand the roles of counsel for the defendant, witnesses and the judge and is he or she capable of respecting those roles and allowing the relevant individuals to discharge their duties without inappropriate interference or abuse?
(h) Is the plaintiff able to control his or her emotions and behave in a non-abusive and non-threatening manner when events do not go his or her way during the trial (such as when adverse rulings are made by the judge, questions are asked in cross-examination on sensitive issues or unfavourable answers are given by witnesses)?
(i) Does the plaintiff have an insight into the possible adverse consequences of his or her behaviour in court, including delay in the resolution of the claims, the defendant incurring additional costs that the plaintiff might have to pay if the claims are unsuccessful and the tying up of scarce judicial resources when these matters are explained to him or her?
(j) Does the plaintiff understand that he or she could possibly lose the case in whole or in part when this matter is explained to him or her?
(k) If the cumulative effect of the evidence is such that a lay person of reasonable intelligence and common sense would form the view that a particular claim will fail, would the plaintiff be capable of forming such a view?
(l) Is the plaintiff capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties' submissions and other developments in the proceeding as at the time the proposal is made?
(m) If the trial is long and complex, is there a risk that the stress and pressure of the litigation might harm the plaintiff's physical or mental health?"
109I shall return to provide answers to each of the questions posed later in these reasons.
110In Iskandar v Mahbur, Slattery J discussed, at [14] - [25], various matters which would be relevant to the present case, so far as these relate to the identity of the tutor to be appointed and associated matters. His Honour wrote:
"Looking at these circumstances, the following issues will arise before and at the hearing for the appointment of a tutor:
1. How is a tutor to be found?
2. How is the tutor to be paid?
3. If a tutor is appointed, could that tutor act as a solicitor for the third defendant as well?
The third defendant has indicated, that he may not oppose the appointment of a tutor, provided those three issues can satisfactorily be addressed. On those three issues the law provides some guidance.
(1) Finding a Tutor
As for finding a tutor, the first of those three issues, four possibilities come to mind.
1. Appointing as a tutor, a solicitor employed by the Legal Aid Commission of New South Wales.
2. Appointing a person nominated by the President of the Law Society of New South Wales as tutor but arranging for that person to be paid under a grant of Legal Aid, if one is available.
3. Appointing a solicitor who is employed or arranged in association with a charity, such as for example the Salvation Army, being a charity that does provide some limited legal expertise to disadvantaged people, or
4. Appointing the New South Wales Trustee and Guardian as a tutor.
The second of these options is the preferred option. The other three options are inappropriate for reasons that I will briefly explain.
The third defendant does not wish to have an employed solicitor with the Legal Aid Commission of New South Wales to act as his tutor. He would prefer an independent solicitor to act and to be funded by the Legal Aid Commission of New South Wales. That is not a preference which may be ultimately persuasive even if the President of the Law Society is unable to nominate someone who can be appropriately funded. But it is a preference which the court takes into account.
Enquiries have been made of the New South Wales Trustee and Guardian. In response it says that it would be prepared to act as a tutor if a tutor were appointed as the financial manager of the third defendant's estate. But the third defendant says he has no estate and there is no immediate plan for anyone such as the New South Wales Trustee and Guardian to be formally appointed to manage his affairs.
An application to appoint the New South Wales Trustee and Guardian as financial manager and then as tutor would be considerably wider than is necessary to accommodate the more limited purpose of having someone to act as the third defendant's tutor to assist in the conduct of these proceedings in his interests.
Finally, with respect to the Salvation Army (or some similar charity), the difficulty is that although the Salvation Army has recently commenced a legal department, 'Salvos Legal', it is presently unclear whether its services might extend to providing a person to act as tutor.
(2) Paying the Tutor
The second, and potentially the most difficult, question is how the tutor will be paid. In Deputy Commission of Taxation v P (1987) 11 NSWLR 200, the court suggested that where one party seeks the appointment of a tutor for another party, that the appointment should ordinarily occur on the basis that the applicant for appointment would indemnify the tutor for his or her expenses and costs in acting as a tutor for the other party.
Although this may at first seem surprising, that is to have a tutor for one party paid for by the opposing party, the independence of the tutor is assured by the tutor declaring, in accordance with the UCPR, 7.18(5)(b) his or her independence from the party paying his fees.
I will also direct though in the first instance that any person nominated to be a tutor for the third defendant, and who is prepared to accept that office, will make an application to the Legal Aid Commission of New South Wales for that person to be funded to act as the tutor and possibly the solicitor for the third defendant. That application may be able to be determined before this matter comes back for hearing on 7 November 2011.
If that Legal Aid application is unsuccessful, the only other source of funding for the tutor would be either the plaintiff's indemnity, or the funds that are in court. Subject to hearing further argument, I see no reason why the plaintiff's indemnity would not be an appropriate way of funding the appointment of a tutor. The ultimate burden of costs so incurred may have to be adjusted depending on the outcome of the proceedings. The funds in court however present difficulty as a possible source of funding. At least one claimant to that fund, the second defendant, is not represented in court today."
111His Honour then, relevantly, ordered:
"(1) Direct that within 7 days the plaintiff provide a copy of these reasons to the President of the Law Society of New South Wales ("the President") and request the President to nominate within a further 7 days a solicitor who:
(a) is prepared to act as the tutor for the third defendant in these proceedings;
(b) has appropriate expertise to act not only as tutor, but, if the court were later to permit that solicitor to act as the solicitor for the third defendant in these proceedings, as well as the third defendant's tutor, that such solicitor has appropriate expertise to so act in the proceedings;
(c) is prepared to act in the capacity of the third defendant's tutor at rates of professional remuneration set by the New South Wales Legal Aid Commission; and
(d) has no interest in the proceedings adverse to the third defendant and no connection with the plaintiff or the plaintiff's legal representatives in the proceedings.
(e) In the event that the President is unable to nominate a solicitor within the time allowed under Order 1 then I direct the plaintiff to inquire of:
(i) the Salvation Army;
(ii) ...
(iii) the Legal Aid Commission of New South Wales."
112In Iskandar v Mahbur (No 6) (Supreme Court (NSW), Slattery J, 15 February 2012, unrep), his Honour referred to two other alternatives, at [7] - [8], and returned to the possibility of appointing the NSW Trustee and Guardian, in [9], as follows:
"The second option was the possibility of the plaintiff arranging and funding the appointment of the tutor. That course has been considered in previous proceedings: Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200. But it is undesirable in this case for many reasons. The plaintiff is unwilling to fund the costs of a tutor for the third defendant. And the third defendant himself has a clear but unfounded concern about potential conspiracies against him among the plaintiff, the Court and other persons. Having a tutor acting for him in the proceedings funded by the plaintiff would have a tendency to compound the third defendant's conspiracy theories about this litigation. Such a solution is quite undesirable.
The third option is appointing a panel member from the Guardian ad Litem Panel, conducted by the Department of Justice and Attorney-General. That option is not without practical difficulties. It is not something which is within the normal operation of that Panel, which I am told was primarily set up to appoint tutors in care proceedings involving children and young persons. Also, a member of the Guardian ad Litem Panel would not ordinarily be made available for this purpose unless the plaintiff was prepared to provide an indemnity to the State of New South Wales in respect of any possible suit which the third defendant might bring against the panel member for maladministration in his role as tutor. The plaintiff is not willing to provide this indemnity. Finally, meeting the costs of a Guardian ad Litem panel members, acting as tutor, would require a separate Legal Aid application. Then a second Legal Aid application must be made for the tutor to engage and fund a solicitor to act for the third defendant. The complications in taking this course produce a high risk of delay and possible failure.
The fourth and final option is that the Court make an order under NSW Trustee and Guardian Act, s 41. This has advantages over the other options. The relevant estate of the third defendant will be managed by the NSW Trustee who will then take responsibility for the appointment of a tutor. It is expected that the costs of the tutor may be met from funds available to the NSW Trustee or, in the alternative from the Legal Aid Commission, which increase the probability that the tutor's expenses will be successfully covered. The plaintiff will not have to meet those expenses. The tutor will still have to apply for Legal Aid for a solicitor, as a tutor may only act by a solicitor unless the Court otherwise orders: UCPR r 7.14(2)."
113His Honour, in the circumstances of that case, then made a declaration that the third Defendant was incapable of managing his affairs; ordered that part of his estate, as constituted by actual contingent assets or liabilities in, or arising out of, the proceedings, be subject to management under the NSW Trustee and Guardian Act; and that the management of the estate, so defined, of the third Defendant be committed to the NSW Trustee.
114His Honour noted, pursuant to UCPR rule 7.15(3), that, in the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee and Guardian Act, the tutor of that person is to be the person who has the management of the person's estate under that Act, with the result that the NSW Trustee would become the third Defendant's tutor.