HF [ANON] v THE STATE OF NEW SOUTH WALES [1997] NSWCA 1

"HF" v THE STATE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P and COLE JA 8 December 1997

[1997] NSWCA 1

Mason P. This is a sad matter in which a father seeks leave to appeal from the refusal of an adjournment and the consequential making of an order removing the father as the tutor of his son.

The father was appointed tutor in a complex and difficult case. It is part-heard and is to resume early in the new year.

Sperling J, who was not the trial judge, was presented with three affidavits by the lawyers who are representing the plaintiff. In great detail those affidavits deposed to a total breakdown of an effective working relationship between solicitors and counsel and the tutor.

His Honour rejected an application for an adjournment notwithstanding that the affidavits had only been served the night before.

Had I been shown material of substance which would have been relied upon by the claimant that would have shown some miscarriage flowing from this refused adjournment, then I might have had sympathy for the application for leave so far as it is based upon the refusal of the adjournment. His Honour did offer the claimant the opportunity to give oral evidence but that opportunity was declined. On the substantive point we were taken to the passage in Dey v Victorian Railway Commissioners 78 CLR 62 at 113 which emphasises the prima facie strong claim of a father to be appointed the tutor of his child for litigation. The passage also indicates that the court's power to remove that tutor may be exercised if for any reason the court considers that the infant's interests will not be properly protected by the tutor. This is a very broad discretionary judgment. It emphasises the primacy of the litigant's interests over the tutor's and, having regard to that principle and the material that was before Sperling J, I do not consider that the application for leave has any prospect of success.