"R" v Manly Hospital & 7 Others [2011] NSWDC 6

District Court New South Wales

Medium Neutral Citation: "R" v Manly Hospital & 7 Others [2011] NSWDC 6 Hearing dates: 28 February, 1 and 2 March 2011 Decision date: 04 March 2011 Before: Levy SC DCJ Decision: 1. The motion filed by the first six defendants seeking to strike out and to dismiss the plaintiff's proceedings is dismissed; 2. Order that the proceedings brought by the plaintiff be stayed until the further order of this Court, or orders of the Supreme Court in its Protective Division; 3. The defendants are to pay the plaintiff's costs of each motion on the ordinary basis unless otherwise ordered; 4. The exhibits may be returned; 5. Liberty to apply on 7 days notice if further orders are required; 6. The court registry and the sixth defendant are to provide the plaintiff with a copy of this judgment. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - litigant in person affected by legal incapacity - proceedings commenced and carried on by plaintiff without a tutor or a solicitor - application by defendants to strike out and dismiss the plaintiff's proceedings - counter-application by plaintiff for a stay pending regularisation - whether the plaintiff's proceedings are futile - consequences of irregularity - whether strike out or stay indicated - whether incorrect joinder or naming of parties and the absence of particulars is fatal to the proceedings - whether statement of claim discloses a reasonable basis for action Legislation Cited: Civil Procedure Act 2005, ss 3(1), 56, 57, 58, 63, 72 Crown Proceedings Act 1988, s 5 Mental Health Act 1990, s191 Mental Health (Forensic Provisions) Act 2007 NSW Trustee and Guardian Act 2009 Protected Estates Act 1983, s 13(1) Trustee Act 1925, ss 5, 63 Uniform Civil Procedure Rules 2005, rr 7.14, 7.16, 12.7, 14.28, 15.5, 15.12, 31.36 Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 Gunns Ltd v Marr [2005] VSC 251 P v R [2003] NSWSC 819 R v NSW Trustee and Guardian [2010] NSWDC 1154 R v P (2001) 53 NSWLR 664 Republic of Peru v Peruvian Guano Co (1887) 36 Ch D 489 at 496 Strinic v Singh [2009] NSWCA 15 Sullivan v Moody [2001] HCA 59; 207 CLR 562 Tame v New South Wales [2002] HCA 35; 211 CLR 317 Category: Interlocutory applications Parties: "R" (Plaintiff in person) "Manly Hospital" (First defendant) "Health Department NSW"(Second defendant) "Premier, NSW Government" (Third defendant) "Police Commissioner, NSW" (Fourth defendant) "Manly/Northern Beaches Command" (Fifth defendant) "OPC" (Sixth defendant) "Eli Lilly" (Seventh defendant) "Lunbeck Australia Pty Ltd" (Eighth defendant) Representation: Counsel: Plaintiff in person Mr E Chrysostomou (First, second, third, fourth, fifth and sixth defendants) Ms R Francois (Seventh defendant) Mr P Miller (Eighth defendant) Solicitors: Plaintiff in person IV Knight, Crown Solicitor (First, second, third, fourth, fifth and sixth defendants) Clayton Utz (Seventh defendant) Lee & Lyons (Eighth defendant) File Number(s): 2008/314155 Publication restriction: Order prohibiting the publication or disclosure of the name of the plaintiff, or any detail from within the court file, or from the evidence in the proceedings, that either identifies, or tends to identify, the plaintiff.