Before the Court is a notice of motion filed on 10 April 2018 by the first and second defendants in these proceedings seeking orders that:
1. Chantelle Bridges be removed as the plaintiff's tutor.
2. The proceedings be stayed pending the appointment of a new tutor.
3. Chantelle Bridges pay the first and second defendants' costs of the motion.
The motion is supported by an affidavit of Caroline Brady, solicitor, of 10 April 2018, which was read without objection. The orders are opposed by the plaintiff who relied upon an affidavit of Chantelle Bridges of 16 April 2018 which was read without objection.
A summary of the background to the notice of motion can be drawn from the affidavit filed in support of it.
Mia-Angel Bridges-Cole ("the plaintiff") has commenced proceedings for damages she has suffered due to the alleged negligence of the first and second defendants ("the defendants") both of whom are medical practitioners. The plaintiff was born on 21 January 2011, and is presently seven years of age. Her mother, Chantelle Bridges, is her tutor ("the tutor").
On 21 October 2017, the tutor commenced proceedings against the first and second defendants in her own right claiming damages for nervous shock. That claim arises from the very same matters which are the subject of the plaintiff's proceedings. Orders were made by this Court on 7 February 2018, the effect of which is that the two proceedings will run concurrently.
On 18 December 2017 the plaintiff filed an amended statement of claim in her proceedings. On 1 February 2018, the tutor also filed an amended statement of claim in her proceedings. An issue was then raised by those acting for the defendants as to whether or not the tutor had a conflict of interest in prosecuting her own claim, and simultaneously acting as the plaintiff's tutor. On 7 March 2018 the plaintiff's solicitor was ordered to file a certificate in accordance with r 7.16 of the Uniform Civil Procedure Rules 2005 ("the Rules"). On 7 March 2018 a form of consent was filed naming the tutor, and certifying that she did not have an interest which was adverse to that of the plaintiff.
On 9 April 2018 the defendants each filed defences to the plaintiff's amended statement of claim. Those defences are annexures D and E to the affidavit which was read in support of the motion. It is not necessary for me to detail them, other than to observe that each pleads a claim for contribution on the basis that the tutor is a joint tortfeasor, and is liable to contribute, pursuant to s 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW), to any verdict which the plaintiff might recover against either defendant. Those particular passages of the amended defence in each case are entirely consistent with the terms of [18] of the affidavit which was read in support of the notice of motion, which stated the following:
"In Mia-Angel's Claim, the First and Second Defendants seek contribution from Chantelle for any verdict which Mia-Angel recovers against the Defendants pursuant to s5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW)."
Consistent with that paragraph, I was told, in terms, by the defendants' solicitor during the hearing of the motion that contribution would be sought from the tutor in the plaintiff's proceedings.
However, I was also informed by counsel for the plaintiff that at a previous directions hearing, the Registrar had been told that no cross-claim was to be filed by the defendants joining the tutor. Quite appropriately, counsel queried why, if contribution was to be sought, no cross-claim was to be filed. When I enquired of the defendants' solicitor as to why this was so, she responded by saying:
"We're instructed not to do so."
I accept that even in the absence of a cross-claim being filed, the Court would have power pursuant to (inter alia) s 90 of the Civil Procedure Act 2005 and r 36.1 of the Rules to give any judgment that the nature of the case required. Accordingly, the Court would retain a power to make an order for contribution if it was sought, whether a cross-claim had been filed or not: see for example Graham H Roberts Pty Ltd v Maurbeth Investments Pty Ltd [1974] 1 NSWLR 93; Farrell v Mulroney [1978] 1 NSWLR 221. However the clearly preferable course, where an order for contribution is sought, is for a cross-claim to be filed so as to ensure that all of the pleadings properly reflect the entirety of the questions that the Court is being asked to determine. Moreover, as I pointed out in the course of the hearing, r 9.11 of the Rules seems to contemplate the filing of a cross-claim where contribution or indemnity is sought.
Because of what had transpired, and because of what I regarded as the somewhat anomalous position taken by the defendants, I stood the proceedings down to allow the solicitor for the defendants to clarify whether or not contribution was in fact to be sought from the tutor as had been asserted in the affidavit. It goes without saying that that was an issue which, although not determinative, was certainly relevant to the question of whether or not the orders sought should be granted.
When the hearing of the motion resumed I was informed, contrary to both paragraph [18] of the affidavit in support of the motion and an express statement previously made by the defendants' solicitor, that no contribution would be sought, and that the defendants would in fact seek leave to file a further amended defence in each case removing that pleading.
I find it curious that the defendant's solicitor would inform the Court that in circumstances where the filing of a cross-claim was appropriate, such a document had not been filed because that solicitor had been instructed not to do so. More significantly, I find it most disconcerting that in an affidavit placed before this Court in support of a notice of motion, as well as in oral submissions, a positive assertion was made that contribution would be sought, only for the Court to then be told that this was not the case. How and why such assertions were ever made, in circumstances where they obviously did not represent the true position, is to say the least disturbing.
The submissions advanced on behalf of the defendant were essentially based upon the proposition that the tutor had been placed in a position where her interests conflicted with those of the plaintiff. It was submitted that the tutor could not act solely in the interests of the plaintiff in circumstances where she was required to consider her own interests in both proceedings. In support of those submissions the solicitor for the defendant referred me to the decisions of Deputy Commissioner of Taxation v P (1987) 11 NSWLR 200 and South v Northern Sydney Area Health Services & Anor [2003] NSWSC 479. The factual circumstances of those cases are quite different from those which are the subject of this application, although such cases confirm (if any confirmation were necessary) the power of this Court to make the orders which have been sought.
Counsel for the plaintiff submitted that in circumstances where contribution was no longer sought, any asserted conflict of interest on the part of the tutor was non-existent. Counsel also pointed out that Ms Bridges was the plaintiff's primary carer, and that had there was no other person who was available to assume the position of tutor.
In bringing the present application the defendant relies on r 7.18 of the Rules 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.
(2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings.
(3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor.
(4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor.
(5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include:
(a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and
(b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity.
(6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor.
In the present case there are a number of matters which bear upon the exercise of the discretion conferred by r 7.18.
Firstly, the fact that neither defendant will seek any contribution from the tutor changes the landscape of the present application in a material way. It is not difficult to envisage that the conflict asserted by the defendants might arise if contribution were sought. However, the possibility of such conflict is substantially lessened given that this is no longer the case, to the point where the risk of such conflict arising is slight.
Secondly, the tutor's case necessarily depends upon the successful outcome of the plaintiff's case. To a large extent, both the tutor and the plaintiff are prosecuting the same case. There may well be, as I commented in the course of the hearing, a risk of a conflict arising in the event of certain settlement negotiations. For example, if the defendants were to make an offer of settlement to the plaintiff in her proceedings on the basis of entering a verdict for the defendants with each party to bear his or her own costs, that would be a situation in which one could perceive a conflict arising in light of the proceedings brought by the tutor in her own right. However that situation has not yet arisen. It may not arise at all.
Thirdly, much of the affidavit of the tutor is directed to the fact that for all practical purposes, she is the only person who can presently fulfil that role. An explanation has been given as to why the plaintiff's father is unable to be appointed to act in that respect. The fact that no other person has been identified as being available to act in that role is a relevant factor, although it is not determinative because the Court retains a power under the Rules to appoint a tutor if no other tutor is available. That said, I recognise that there may well be some difficulty in a case such as this in finding a person who is prepared accept an appointment by the Court to act as a tutor, having regard the obligations and responsibilities which attach to that role.
Fourthly, accepting (as I do) that there is no other person who is available to act as the plaintiff's tutor, I have some considerable concern that if I were to grant the orders sought by the defendant they could have the effect of stultifying the plaintiff's case. Given that the plaintiff is a young child that outcome would be most undesirable and is one which tends very much against the making of the orders sought. However on the evidence before me, it would be a likely outcome, at least in the short term.
For all of those reasons I have come to the view that the orders sought should not be made.
Given that the defendants have failed in their motion, costs should prima facie follow the event. However, the parties have agreed that an order should be made that the costs of the motion being the plaintiff's costs in the cause.
I make the following orders:
1. The notice of motion filed on 10 April 2018 by the defendants is dismissed.
2. The defendants are to file any amended defences in the proceedings by 5pm on Friday 20 April 2018.
3. The directions hearing before the Registrar on 26 April 2018 is vacated.
4. The matter is listed before me for directions at 10am on Friday 20 April 2018.
5. The costs of the motion shall be the plaintiff's costs in the cause.
[2]
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Decision last updated: 24 April 2018
Parties
Applicant/Plaintiff:
Mia-Angel Bridges-Cole by her litigation guardian Chantelle Bridges