R v NSW Trustee and Guardian [2010] NSWSC 1154

New South Wales Supreme Court

CITATION : R v NSW Trustee and Guardian [2010] NSWSC 1154

HEARING DATE(S) : 5 October 2010

JUDGMENT DATE : 5 October 2010

JURISDICTION : Equity Division Protective List

JUDGMENT OF : Palmer J

EX TEMPORE JUDGMENT DATE : 5 October 2010

DECISION : Tutor appointed.

CATCHWORDS : PROTECTIVE JURISDICTION – TUTOR – whether Supreme Court has power to appoint tutor for plaintiff in District Court proceedings – whether order should be made in this case.

- Civil Procedure Act 2005 (NSW) LEGISLATION CITED : - NSW Trustee and Guardian Act 2009 (NSW) Protected Estates Act 1983 (NSW) - s 13(1) - Uniform Civil Procedure Rules 2005 (NSW) – 7.14, 7.15(3), 7.18

CATEGORY : Principal judgment

CASES CITED : P v R [2003] NSWSC 819

PARTIES : R (Plaintiff) NSW Trustee and Guardian (Defendant)

FILE NUMBER(S) : SC P29/2001

COUNSEL : M. Licha (Plaintiff) Ms C. Phang (Sol) (Defendant)

SOLICITORS : In person (Plaintiff) NSW Trustee and Guardian (Defendant)

P29/2001 R v NSW Trustee and Guardian

JUDGMENT – Ex tempore

5 October , 2010

1 On 9 September 2003, R was declared to be a person incapable of managing her affairs and the Protective Commissioner, now the NSW Trustee & Guardian, was appointed as her financial manager under s 13(1) of the Protected Estates Act 1983 (NSW), which has now been superseded by the NSW Trustee and Guardian Act 2009 (NSW). Those orders are still in force: P v R [2003] NSWSC 819. 2 By virtue of the financial management order which was made, R is "a person under a legal incapacity", as defined in s 3 of the Civil Procedure Act 2005 (NSW). By Uniform Civil Procedure Rules 2005 (NSW) 7.14(1), a person under legal incapacity may not commence or carry on proceedings except by his or her tutor. 3 UCPR 7.15(3) provides: "In the case of proceedings with respect to the estate of a person whose estate is subject to management under the NSW Trustee & Guardian Act, the tutor of that person is to be the person who has the management of the person's estate under that Act."