Angius v Salier (No 4) [2019] NSWSC 1698

Angius v Salier (No 4) [2019] NSWSC 1698

Although the evidence did not clearly establish that the plaintiff was a person under legal incapacity for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1), it did establish sufficient doubt about his capacity to provide proper instructions to justify appointment of a tutor under the Court's parens patriae jurisdiction. Given the solicitor's inability to obtain meaningful instructions, the risk of placing him in an impossible position, and the additional though not independently compelling medical evidence, the Court appointed the NSW Trustee and Guardian as tutor and vacated the hearing.

Jurisdiction
Australia
Judgment Date
25 November 2019
Procedural Posture
Civil Procedure Application in Equity Proceedings / Urgent Pre Trial Application for Appointment of a Tutor and Adjournment; Hearing Date Vacated
Outcome
Application granted in part; NSW Trustee and Guardian appointed as the plaintiff's tutor and the hearing vacated.
Legal Topics
['appointment of Tutor' 'person Under Legal Incapacity' 'parens Patriae Jurisdiction' 'adjournment' 'withdrawal of Appearance' 'capacity to Give Instructions']
['civil Procedure' 'equity'] ['appointment of Tutor' 'person Under Legal Incapacity' 'parens Patriae Jurisdiction' 'adjournment' 'withdrawal of Appearance' 'capacity to Give Instructions']

Case Brief

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Procedural Posture

Civil Procedure Application in Equity Proceedings / Urgent Pre Trial Application for Appointment of a Tutor and Adjournment; Hearing Date Vacated

Legal Issues

  1. 1 ["Whether the Court should appoint a tutor for the plaintiff where the plaintiff's solicitor could not obtain meaningful instructions and had concerns about capacity." 'Whether the plaintiff was a person under legal incapacity for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1).' "Whether the Court could appoint a tutor under its parens patriae jurisdiction where there may be doubt as to the plaintiff's capacity." "Whether the hearing should be adjourned or vacated in light of the plaintiff's capacity issues and medical evidence."]

Ratio Decidendi

Although the evidence did not clearly establish that the plaintiff was a person under legal incapacity for the purposes of Uniform Civil Procedure Rules 2005 (NSW), r 7.18(1), it did establish sufficient doubt about his capacity to provide proper instructions to justify appointment of a tutor under the Court's parens patriae jurisdiction. Given the solicitor's inability to obtain meaningful instructions, the risk of placing him in an impossible position, and the additional though not independently compelling medical evidence, the Court appointed the NSW Trustee and Guardian as tutor and vacated the hearing.

Court Disposition

Application granted in part; NSW Trustee and Guardian appointed as the plaintiff's tutor and the hearing vacated.

Orders

  • ["Order the NSW Trustee and Guardian be appointed as the plaintiff's tutor for the conduct of these proceedings." "Grant liberty to the plaintiff's solicitor to apply on short notice, either to discharge the appointment of a tutor to the plaintiff, or to appoint someone else as his tutor for the conduct of the...