M v Mental Health Review Tribunal and Others (No 2) [2016] NSWSC 572

M v Mental Health Review Tribunal and Others (No 2) [2016] NSWSC 572

Because the plaintiff was already subject to subsisting financial management orders committing management of substantially the whole of his estate to the NSW Trustee, any cause of action asserted in the proceedings was subject to protected estate management and his power to conduct the proceedings was suspended. He was a protected person and a person under legal incapacity who could not commence or carry on the proceedings except by a tutor represented by a solicitor, unless the rules were dispensed with. The appropriate course was to stay the plaintiff's summons and the defendants' motions for a reasonable time so the NSW Trustee, as financial manager and prima facie appropriate tutor,...

Jurisdiction
Australia
Judgment Date
06 May 2016
Procedural Posture
Equity Protective List; Civil Proceedings Including Compensation Claims and an Appeal Under Section 163 of the Mental Health Act 2007 NSW / Interlocutory Procedural Ruling on Stays and Directions After Discovery That the Plaintiff's Estate Was Subject to Protected Estate Management
Outcome
The plaintiff's summons and the defendants' motions were stayed, subject to further order, and directions were given to enable assessment by the NSW Trustee and consideration of ongoing management of the protected estate.
Legal Topics
['proceedings by a Protected Person' 'litigant in Person' 'appointment of Tutor' 'stay of Proceedings' 'summary Disposal' 'abuse of Process' 'financial Management Orders']
['mental Health Law' 'civil Procedure' 'protective Jurisdiction' 'protected Estates'] ['proceedings by a Protected Person' 'litigant in Person' 'appointment of Tutor' 'stay of Proceedings' 'summary Disposal' 'abuse of Process' 'financial Management Orders']

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Procedural Posture

Equity Protective List; Civil Proceedings Including Compensation Claims and an Appeal Under Section 163 of the Mental Health Act 2007 NSW / Interlocutory Procedural Ruling on Stays and Directions After Discovery That the Plaintiff's Estate Was Subject to Protected Estate Management

Legal Issues

  1. 1 ['What procedural consequences followed from the plaintiff being a protected person whose estate was subject to management under the NSW Trustee and Guardian Act 2009 NSW.' 'Whether the plaintiff could commence or carry on the proceedings without a tutor represented by a solicitor.' "Whether the plaintiff's summons and defendants' motions should be stayed to allow the NSW Trustee to assess the proceedings and management of the protected estate." 'Whether the Court could dismiss, stay or strike out proceedings as an abuse of process where the party maintaining them is under a legal incapacity.']

Ratio Decidendi

Because the plaintiff was already subject to subsisting financial management orders committing management of substantially the whole of his estate to the NSW Trustee, any cause of action asserted in the proceedings was subject to protected estate management and his power to conduct the proceedings was suspended. He was a protected person and a person under legal incapacity who could not commence or carry on the proceedings except by a tutor represented by a solicitor, unless the rules were dispensed with. The appropriate course was to stay the plaintiff's summons and the defendants' motions for a reasonable time so the NSW Trustee, as financial manager and prima facie appropriate tutor,...

Court Disposition

The plaintiff's summons and the defendants' motions were stayed, subject to further order, and directions were given to enable assessment by the NSW Trustee and consideration of ongoing management of the protected estate.

Orders

  • ["Subject to further order, the plaintiff's summons was stayed for a reasonable time to permit the NSW Trustee to consider whether it should consent to appointment as the plaintiff's tutor and/or apply for orders affecting the proceedings or ongoing management of the plaintiff's protected estate." "The defendants'...