South v Northern Sydney Area Health Service & Anor [2003] NSWSC 479

New South Wales Supreme Court

CITATION : South v Northern Sydney Area Health Service & Anor [2003] NSWSC 479 HEARING DATE(S) : 30 May 2003 JUDGMENT DATE : 4 June 2003 JURISDICTION: Common Law JUDGMENT OF : Burchett AJ at 1 DECISION : 1. The tutor should be removed on condition she remains liable in respect of everything done and all costs incurred up to the date of her removal to such orders as the Court may make; 2. Consequential order made under rule 8(1)(b) staying the proceedings until appointment of a tutor in place of the tutor removed, save that the motion for dismissal, or any similar motion, may be brought on for hearing not earlier than next November or after the appointment of a tutor; 3. Refuse to dispense with compliance with the Rules; 4. The Protective Commissioner to pay the costs of the motion.

CATCHWORDS : Practice - where plaintiff a "disable person" represented by her mother as tutor - where tutor liable for plaintiff's costs - where Protective Commissioner applies to remove plaintiff's mother as tutor because of an interest adverse to plaintiff - where Protective Commissioner declines to accept position of tutor on account of tutor's liability for costs - whether Court may authorise Protective Commissioner to issue instructions on the planitiff's behalf without the appointment of a tutor - Court's discretion - tutor removed conditionally on her remaining liable for costs to date - order dispensing with tutor refused LEGISLATION CITED : Protected Estates Act 1983, s24 Supreme Court Rules 1970: Pt 1 r8, r12; Pt 63 r2, r4, r5, r8 CASES CITED : Crockett v Roberts [2000] TASSC 148 Re an Incapable Person D [1983] 2 NSWLR 590 Karra Joy South by her tutor Joy Irene South PARTIES : Northern Sydney Area Health Service Dr R G Rushworth FILE NUMBER(S) : SC 20334/96 COUNSEL : Mr G Laughton for the Plaintiff Mr M Kearney for the Defendants Peninsula Law Solicitors for the Plaintiff SOLICITORS : Ebsworth & Ebsworth Solicitors for the First Defendant Blake Dawson Waldron for the Second Defendant