Re P [2006] NSWSC 1082

New South Wales Supreme Court

CITATION : Re P [2006] NSWSC 1082

HEARING DATE(S) : 3/10/06 JURISDICTION : Equity Division Protective List

JUDGMENT OF : Young CJ in Eq

EX TEMPORE JUDGMENT DATE : 10/03/2006

DECISION : Court authorises plaintiff to act as if she is the defendant's tutor in all respects concerning the relevant District Court proceedings.

CATCHWORDS : MENTAL ILLNESS [3]- Appointment of tutor- Application by wife to act as tutor for husband in District Court proceedings- Husband's mental state inhibits ability to instruct solicitors- Whether "person under legal incapacity" pursuant to Civil Procedure Act 2005, s 3- Husband does not have mental disability and can express his will- Parens patriae jurisdiction- Husband consented to wife being tutor- Wife authorised to act as husband's tutor in District Court proceedings.

Civil Procedure Act 2005, s 3 LEGISLATION CITED : Supreme Court Act 1970, s 23 Uniform Civil Procedure Rules 2005, Part 7, rule 7.18

CASES CITED : Re SK [2005] 3 All ER 421

PARTIES : The parties are not identifed in Protective List matters

FILE NUMBER(S) : SC 34/2006

COUNSEL : A Radojev (P)

SOLICITORS : R E Barros & Company (P)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

YOUNG CJ in EQ

Tuesday 3 October 2006

34/2006 – RE P JUDGMENT 1 HIS HONOUR: This is an application ostensibly made under Pt 7 r 7.18 of the Uniform Civil Procedure Rules 2005 for the appointment of a tutor. The matter concerns proceedings which are part heard in the District Court at Sydney, No 2398/05. 2 The rule to which I have referred says that if a person does not have a tutor the Court may appoint a tutor. It seems to me that the word "Court" in the rule means the Court in which the proceedings are pending so that the application to appoint a tutor under the rule should be made in the District Court. I am told, however, by Mr Radojev of counsel for the plaintiff, which I fully accept, that he made an application to the learned District Court judge for an order but the judge thought she had no jurisdiction to do so. As her Honour gave no reasons I cannot comment on her decision other than to say that it was wrong. Each Court has the power to appoint a tutor for matters within the Court where the person concerned is, within the definition of the rules, a person under legal incapacity within the meaning of s 3 of the Civil Procedure Act 2005. 3 I could send the matter back to the District Court but we have passed the stage where we make people incur expense by moving things from Court to Court and there are two good reasons in addition for not doing so in this case: First, this must be a borderline case; and, secondly, I have powers under the Court's parens patriae jurisdiction and under s 23 of the Supreme Court Act 1970 which are not available in the District Court. 4 A "person under legal incapacity" is defined in s 3 of the Civil Procedure Act 2005, the only relevant paragraph being: "(e) an incommunicate person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs." 5 The report of Dr Dunn really does not go as far as to say that the defendant has a mental disability, that he is unable to express his will with respect to his property or affairs. The evidence suggests that the defendant may have some mental illness of probably a temporary type and may be depressed but he now has a mental problem in continuing with the litigation that is pending in the District Court. He has not got a disability that he is unable to express his will with respect to his property or affairs, but he has got a problem which stops him from giving proper instructions to his lawyers and the lawyers would have difficulty in doing what they were instructed by the client because they could not be assured that his mind was preceding his mouth. 6 It is, accordingly, a situation where I do not think the rule applies. However, there is a very real problem here. It is not the first time the Court has met this sort of problem in various guises. I remember once in the Barristers Admission Board course, a gentleman, I think, had failed his taxation law examination a number of times and had a mental block about sitting again. He was not mentally ill, but it was quite obvious that there was a mental problem which stopped him from proceeding further. We granted him exemption from taxation law and all was well. 7 What can the Court do in the situation where a litigant has got himself into a mental state where he cannot give meaningful instructions? 8 Once upon a time the Court's protective power under the parens patriae jurisdiction was thought to be confined to minors and to mentally ill people. Recent English decisions involving "Asians" who are kidnapped to have arranged marriages in India or Pakistan have attracted the parens patriae jurisdiction of English Courts even though they are adults, see Re SK [2005] 3 All ER 421. It seems to me that there is inherent power in this Court under its parens patriae jurisdiction to deal with situations such as the present. 9 In the present case the defendant has told his wife, the proposed tutor that he agrees that she be appointed his tutor. I have no reason to suspect that that consent is other than free and voluntary. 10 Accordingly, the Court authorises the plaintiff to act in all respects concerning litigation No 2398/05 in the District Court as if she had been appointed the defendant's tutor under the Uniform Civil Procedure Rules 2005 with liberty to apply.