Gergis v Ware [2010] NSWDC 17

Gergis v Ware [2010] NSWDC 17

The plaintiff established, on an interlocutory threshold, a serious concern arising from medical evidence of cognitive and behavioural impairment that he should not proceed further without a tutor. Section 58 of the Civil Procedure Act 2005, together with r 7.18 of the Uniform Civil Procedure Rules 2005, empowered the Court to appoint the plaintiff's father as tutor according to the dictates of justice, and the potential prejudice to the plaintiff if no tutor were appointed outweighed any asserted disadvantage to the defendant.

Jurisdiction
Australia
Judgment Date
05 February 2010
Procedural Posture
Civil Claim for Damages for Personal Injury Arising Out of a Motor Vehicle Collision / Interlocutory Motion for Appointment of a Tutor
Outcome
Motion granted; the plaintiff's father was appointed as the plaintiff's tutor, with costs of the motion to be costs in the cause.
Legal Topics
['appointment of Tutor' 'legal Incapacity' 'case Management' 'cognitive Impairment' 'traumatic Brain Injury']
['civil Procedure' 'personal Injury'] ['appointment of Tutor' 'legal Incapacity' 'case Management' 'cognitive Impairment' 'traumatic Brain Injury']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Civil Claim for Damages for Personal Injury Arising Out of a Motor Vehicle Collision / Interlocutory Motion for Appointment of a Tutor

Legal Issues

  1. 1 ["Whether the plaintiff's father should be appointed as the plaintiff's tutor in the proceedings under Uniform Civil Procedure Rules 2005, r 7.18." "Whether the plaintiff's alleged cognitive impairment and medical evidence justified appointment of a tutor on an interlocutory basis." 'Whether s 3(1) of the Civil Procedure Act 2005 provided an exclusive definition of legal incapacity.' 'Whether s 58 of the Civil Procedure Act 2005 empowered the District Court to make the order according to the dictates of justice.']

Ratio Decidendi

The plaintiff established, on an interlocutory threshold, a serious concern arising from medical evidence of cognitive and behavioural impairment that he should not proceed further without a tutor. Section 58 of the Civil Procedure Act 2005, together with r 7.18 of the Uniform Civil Procedure Rules 2005, empowered the Court to appoint the plaintiff's father as tutor according to the dictates of justice, and the potential prejudice to the plaintiff if no tutor were appointed outweighed any asserted disadvantage to the defendant.

Court Disposition

Motion granted; the plaintiff's father was appointed as the plaintiff's tutor, with costs of the motion to be costs in the cause.

Orders

  • ["Pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005, the plaintiff's father, Mourad Gergis be appointed as the plaintiff's tutor in these proceedings." 'The costs of this motion are to be costs in the cause.' 'Exhibit 1 may be returned.']