TA v IA [2016] NSWSC 1912

TA v IA [2016] NSWSC 1912

Given the issue in the retrial as to the defendant’s capacity, and the anticipated reliance on affirmative medical evidence by the defendant, it is appropriate and necessary for the interests of justice that the defendant attend a medical examination at the request of the plaintiff to ensure a full and fair contest of expert opinion on capacity.

Parties
Plaintiff: TA; Defendant: IA
Jurisdiction
Australia
Judgment Date
20 December 2016
Procedural Posture
Interlocutory Application / Application for Medical Examination Prior to Retrial of Capacity Issue
Outcome
Application granted; orders made for medical examination and dealing with payment of medico-legal expenses.
Legal Topics
Medical Examination, Legal Capacity, Appointment of Tutor, Management of Estate
Equity Protective Jurisdiction Medical Examination Legal Capacity Appointment of Tutor Management of Estate

Case Brief

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Parties

TA

Plaintiff

IA

Defendant

Procedural Posture

Interlocutory Application / Application for Medical Examination Prior to Retrial of Capacity Issue

Legal Issues

  1. 1 Whether the defendant should be compelled to attend a medical examination to test medical evidence on capacity
  2. 2 Whether the defendant currently lacks legal capacity and requires a tutor

Ratio Decidendi

Given the issue in the retrial as to the defendant’s capacity, and the anticipated reliance on affirmative medical evidence by the defendant, it is appropriate and necessary for the interests of justice that the defendant attend a medical examination at the request of the plaintiff to ensure a full and fair contest of expert opinion on capacity.

Court Disposition

Application granted; orders made for medical examination and dealing with payment of medico-legal expenses.

Orders

  • The defendant is ordered to attend a medical examination by Dr Bruce Westmore on 5 January 2017.
  • The defendant is directed to provide by 30 January 2017 all invoices from retained medico-legal experts claimed unpaid, together with supporting material, to the plaintiff’s legal representatives.