Farr v State of Queensland [2009] NSWSC 906

Farr v State of Queensland [2009] NSWSC 906

The plaintiff was not under a legal incapacity because she had capacity to understand what was necessary to pursue the claim against the first defendant, the details and consequences of the proposed settlement, counsel's advice, and to make decisions and give instructions based on that advice. The evidence also did not establish that she was incapable of managing her own affairs: lack of experience in major financial decisions and some lack of insight about treatment did not show inability to deal competently with ordinary routine affairs or a real risk that her funds would be dissipated or lost.

Jurisdiction
Australia
Judgment Date
20 August 2009
Procedural Posture
Common Law Negligence Damages Proceedings; Procedural Application for Declarations Concerning Legal Incapacity and Management of Affairs / Ex Tempore Judgment on the Plaintiff's Amended Notice of Motion Following Mediation and a Proposed Settlement With the Second and Third Defendants
Outcome
The Court declared that the plaintiff was not under a legal incapacity for the purposes of UCPR rule 7.14. The Court did not make the sought declaration that she was incapable of managing her own affairs under s 41 of the NSW Trustee and Guardian Act 2009.
Legal Topics
['legal Incapacity to Conduct Proceedings' 'capacity to Settle Proceedings' 'appointment of Tutor' 'approval of Settlement' 'capacity to Manage Own Affairs']
['common Law' 'civil Procedure' 'guardianship and Management of Affairs'] ['legal Incapacity to Conduct Proceedings' 'capacity to Settle Proceedings' 'appointment of Tutor' 'approval of Settlement' 'capacity to Manage Own Affairs']

Case Brief

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Procedural Posture

Common Law Negligence Damages Proceedings; Procedural Application for Declarations Concerning Legal Incapacity and Management of Affairs / Ex Tempore Judgment on the Plaintiff's Amended Notice of Motion Following Mediation and a Proposed Settlement With the Second and Third Defendants

Legal Issues

  1. 1 ['Whether the plaintiff was under a legal incapacity for the purposes of UCPR rule 7.14 in settling the proceedings with the second and third defendants and carrying on the proceedings against the first defendant.' 'Whether the plaintiff was incapable of managing her own affairs within the meaning of s 41 of the NSW Trustee and Guardian Act 2009.' 'Whether any lack of insight into her condition or lack of experience with major financial decisions justified protective management of her estate.']

Ratio Decidendi

The plaintiff was not under a legal incapacity because she had capacity to understand what was necessary to pursue the claim against the first defendant, the details and consequences of the proposed settlement, counsel's advice, and to make decisions and give instructions based on that advice. The evidence also did not establish that she was incapable of managing her own affairs: lack of experience in major financial decisions and some lack of insight about treatment did not show inability to deal competently with ordinary routine affairs or a real risk that her funds would be dissipated or lost.

Court Disposition

The Court declared that the plaintiff was not under a legal incapacity for the purposes of UCPR rule 7.14. The Court did not make the sought declaration that she was incapable of managing her own affairs under s 41 of the NSW Trustee and Guardian Act 2009.

Orders

  • ['I declare that the plaintiff is not under a legal incapacity for the purposes of UCPR rule 7.14 and in particular for the purposes of: (a) settling the proceedings with the second and third defendants, and (b) carrying on the proceedings against the first defendant.']