NSWNSWSC
Robert Carl Klewer v Sydney Children's Hospital Specialty Network
[2017] NSWSC 88
Supreme Court of NSW|2017-02-07|Before: Campbell J, Gleeson JA
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Source factsCourt
Supreme Court of NSW
Decision date
2017-02-07
Before
Campbell J, Gleeson JA
Source
Original judgment source is linked above.
Judgment (2 paragraphs)
[1]
- On 29 August 2016, an application by the defendant to dismiss these proceedings for want of prosecution came before me for hearing. Since then the matter has come before me again on 26 September and 15 November 2016. The purpose of those adjournments was to give the plaintiff and his mother every opportunity to find a person, including a practising lawyer, who would be prepared to act as a tutor for the plaintiff who is a person under a legal incapacity. Unfortunately, the best endeavours of the plaintiff and his mother to find such a person have not borne fruit.
- I am conscious of the consideration that in appropriate circumstances the Court has power to appoint a suitable tutor, as Mr Weinstein SC put it, "who would be immune from costs": Smith v NRMA Insurance Ltd [2016] NSWSC 250 per Gleeson JA. However, in that case, a solicitor had been identified who was prepared to act as tutor on that basis. The Court could not impose by conscription the status of tutor on a lawyer or anyone else who was unwilling to act in that capacity.
- The Court does maintain a list of lawyers who are prepare to act as lawyers on a pro bono basis and referrals are sometimes made under R 7.36 of the Uniform Civil procedure Rules 2005. However, that is a different category of case from assuming the responsibilities of a tutor, even one who is immune from costs. A tutor has the onerous responsibility of making decisions about the progress of the litigation including decisions about whether the case should continue or should be discontinued, and it would be unfair to impose that obligation, which is not a usual incident of legal practice, on a lawyer who was not prepared willingly to assume it. I do not think it is appropriate for me to refer the matter out on that basis.
- Included in the efforts made by Mrs Klewer on her son's behalf to find a tutor are approaches to the Law Society of New South Wales. Mrs Klewer has provided a copy of a letter from the Law Society's pro bono unit about the matter. It seems that there was initially some confusion. The Law Society seemed to have assumed that Mrs Klewer and Robert were seeking pro bono assistance but from what Mrs Klewer has told me today and from her written submission, the employed solicitor at the Law Society handling the application has spoken to Mrs Klewer and Mrs Klewer has informed her of the nature of the application.