District Court New South Wales Medium Neutral Citation: Dows v New South Wales Land and Housing Corporation [2013] NSWDC 136 Hearing dates: 18 and 19 June 2013 Decision date: 19 June 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Plaintiff's further application to file a second further amended statement of claim refused. 2. If the plaintiff has any application to make in respect of a tutor, documents relevant to that application should be served by 4pm on 2 July 2013. 3. By 4pm on 2 July 2013, defendants should notify the plaintiff whether there is any opposition to the filing of the plaintiff's amended particulars. 4. Stand over the substantive matter, the second defendant's notice of motion (filed 13 June 2013) and the plaintiff's application to amend particulars for directions on Wednesday, 3 July 2013 at 9.30am before the list judge. 5. Plaintiff bear the costs of the applications for leave to file a second further amended statement of claim. Catchwords: PROCEDURE - amendment - appointment of tutor - evidence of disability - costs Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1965 Uniform Civil Procedure Rules 2005, r 7.13, r 7.15, r 7.16, r 7.18, r 42.1 Category: Procedural and other rulings Parties: Charlie Dows (plaintiff) New South Wales Land and Housing Corporation (first defendant) Ausrroli Pty Ltd (ACN 061 586 981) (second defendant) Guo Hua Zhong (third defendant) Representation: Mr J Malouf (plaintiff) Mr W Reynolds (first defendant) Mr A Scotting (second defendant) Mr N Hogan (third defendant) Gerard Malouf & Partners (plaintiff) Norton Rose Fulbright Australia (first defendant) A J & Associates Lawyers (second defendant) Sparke Helmore (third defendant) File Number(s): 2010/402910 Publication restriction: No Ex tempore Judgment 1Mr Charlie Dows alleges that he slipped and fell and suffered injuries on 31 December 2009 as a result of a leaky tap that caused the kitchen floor to be wet. Until yesterday, the first day of the trial, Mr Dows was alleged to be the subtenant of the State of New South Wales who leased the premises from the owner, Guo Hua Zhong. The State and Ms Zhong, as well as the real estate agent, are the defendants in the proceedings. 2Mr Dows now alleges that the subtenant is one Mr Shane Bell, and that Mr Dows was part of Mr Bell's household. 3Mr Dows made an application yesterday to amend the further amended statement of claim in a number of respects, some of which were new and were likely to cause a vacation of the hearing, were they to be granted. I indicated that I was proposing to grant some of the amendments and refuse others, and I indicated which they were. I stood over the application to today to allow Mr Dows to make a further application with a new amended statement of claim including the favoured amendments if he so chose. Mr Dows did so. 4Late yesterday Mr Dows also sought leave to file in court a form, being a "consent to act as tutor". The defendants objected. The application was not pursued. I was informed today that the document has now been filed in the registry. The form records the consent of Shane Bell to act as tutor, and includes a signature of the plaintiff's solicitor certifying that Mr Bell has no interest in these proceedings adverse to Mr Dows. 5This morning Mr Dows, through his counsel, sought leave to file a second further amended statement of claim. No further opposition exists to the matters raised in that document, save for an amendment that would change the name of the plaintiff to "Charlie Dows by his tutor Shane Bell". 6The procedural rules concerning persons under a legal disability are contained in Div 4 of the Uniform Civil Procedure Rules 2005, and I set out the following relevant provisions of those rules: "7.13 Definition In this Division, person under legal incapacity includes a person who is incapable of managing his or her affairs." "7.15 Tutors generally (cf SCR Part 63, rules 4 and 5; DCR Part 45, rules 4 and 5; LCR Part 34, rules 5 and 6) (1) Subject to this Division, a person may become the tutor of a person under legal incapacity without the need for any formal instrument of appointment or any order of a court. (2) Any person (other than a corporation) is eligible to be the tutor of a person under legal incapacity, in respect of any proceedings, unless the person is: (a) a person under legal incapacity, or ... (c) a person who has an interest in the proceedings adverse to the interests of the person under legal incapacity. ... (6) Anything that these rules authorise or require a party to do in relation to the conduct of proceedings may, if the party is a person under legal incapacity, be done on his or her behalf by his or her tutor." "7.16 Tutor to file certain documents (cf SCR Part 63, rule 4; DCR Part 45, rule 4; LCR Part 34, rule 5) A tutor may not commence or carry on proceedings on behalf of a person under legal incapacity unless there have been filed: (a) the tutor's consent to act as tutor, and (b) a certificate, signed by the tutor's solicitor in the proceedings, to the effect that the tutor does not have any interest in the proceedings adverse to the interests of the person under legal incapacity." "7.18 Court may appoint and remove tutors (cf SCR Part 63, rules 5, 7 and 8; DCR Part 45, rules 7 and 8; LCR Part 34, rules 8 and 9) (1) In any proceedings in which a party is or becomes a person under legal incapacity: (a) if the person does not have a tutor, the court may appoint a tutor, or (b) if the person has a tutor, the court may remove the party's tutor and appoint another tutor. (2) In any proceedings concerning a person under legal incapacity who is not a party, the court may appoint a tutor of the person and join the person as a party to the proceedings. (3) If the court removes a party's tutor, it may also stay the proceedings pending the appointment of a new tutor. (4) Subject to any order of the court, notice of any motion under this rule is to be served on the person under legal incapacity and, if it proposes removal of the person's tutor, on the tutor. (5) In proceedings on a motion for the appointment of a tutor, evidence in support of the motion must include: (a) evidence that the party for whom a tutor is to be appointed is a person under legal incapacity, and (b) evidence that the proposed tutor consents to being appointed and does not have any interest in the proceedings adverse to the interests of the person under legal incapacity. (6) An application for appointment as tutor under this rule may be made by the court of its own motion or on the motion of any other person, including the proposed tutor." 7In this application two issues arise: (1) whether there is sufficient evidence that Mr Dows is under legal incapacity, in this case by being a person who is incapable of managing his affairs; and (2) whether Mr Bell has an interest in the proceedings adverse to the interest of the person under the legal incapacity, under r 7.15(2)(c). 8As to the legal incapacity, counsel for Mr Dows relies upon three matters. 9First, an affidavit by the plaintiff's solicitor dated today deposing to a belief that Mr Dows is under a legal disability as he was "not capable of understanding the issues" in the litigation. The affidavit was the subject of objection. The basis of the solicitor's belief was not otherwise identified. In my view, the lack of psychological expertise of the solicitor, and the absence of any circumstances that related to the capacity of Mr Dows to understand legal issues meant that I could not accept this affidavit as evidence of Mr Dows' condition. 10Secondly, there was a reference in a hospital record concerning Mr Dows' admission in June and July 2012 to that hospital where the single word "dementia" appears as part of the past history of Mr Dows. The hospital record gave no details of the impact of any dementia on Mr Dows currently, nor of its significance in the past. 11Thirdly, Mr Dows tendered an expert report of Dr Peter Giblin, orthopaedic surgeon, dated 10 August 2010 that stated, "[t]he question of dementia may be addressed by the appropriate investigations". And, "[a]ssessment of his cognitive skills would be an essential part of the treatment program". 12The defendants say that this is not enough to establish legal incapacity. The first defendant tendered the last 10 years of notes of Mr Dows' treating doctor. The notes record a substantial number of visits by Mr Dows, but make no reference to dementia or give any indication of a legal incapacity. I accept the submission that if it existed some reference to dementia might have been expected in the notes. 13In these circumstances, I am not persuaded that Mr Dows has a legal incapacity. I take into account the fact that this matter has been raised very late and the issue has not been fully explored by any party. The plaintiff offered no explanation as to why this matter has been raised so late. There was no evidence to suggest a reason why this matter could not have been properly addressed earlier by a report on behalf of the plaintiff. 14The plaintiff submitted that it was sufficient that the consent to act as tutor form has been filed. Even if I am not actually appointing a tutor but am considering a grant of leave to amend the statement of claim to include the reference to the tutor, the matters in r 7.18(5) are at least by analogy relevant to whether I should grant the leave sought. That sub rule requires evidence of legal incapacity. 15The second matter concerns the position of Mr Bell. Mr Bell is a relevant potential witness in the litigation. He also has a potentially adverse interest to Mr Dows for two reasons. Mr Dows now alleges that Mr Bell is a tenant presumably under a lease or residential tenancy agreement. That document is not in evidence. But there was at least a possibility either pursuant to that lease or by virtue of the contribution provisions in the Law Reform (Miscellaneous Provisions) Act 1965 that a defendant who is found liable could take proceedings against Mr Bell for contribution or indemnity. He was the legal occupier of the premises, and the proceedings are based upon an allegation that the kitchen tap manifested problems prior to any incident involving Mr Dows. 16The second reason is that Mr Dows may potentially have a claim against Mr Bell as a joint tortfeasor. That claim is not maintained in these proceedings. 17Counsel for Mr Dows submits that these matters do not establish that Mr Bell has an "interest in these proceedings adverse to Mr Dows". 18I do not think it matters that Mr Bell is not presently a defendant. His first appearance in a draft pleading occurred yesterday with the proposed amendments. He is a significant potential witness with a potential exposure and his interest in the proceedings is not completely aligned with Mr Dows. 19In my view, the fact that a potential claim exists against Mr Bell by any of the parties to the proceedings is sufficient to render his interest adverse to Mr Dows, at least on the evidence before me. For these reasons, I do not propose to grant leave to file a further amended statement of claim to include Mr Bell as the plaintiff as tutor of Mr Dows. 20This decision is not intended to preclude appointment of a tutor, or amendment of the statement of claim to include reference to a tutor, for Mr Dows should a subsequent application on different evidence be made. 21The plaintiff has failed in its application and the defendants are entitled to their costs under the general rule expressed in Uniform Civil Procedure Rule 42.1. 22The orders of the Court are: 1. Plaintiff's further application to file a second further amended statement of claim refused. 2. If the plaintiff has any application to make in respect of a tutor, documents relevant to that application should be served by 4pm on 2 July 2013. 3. By 4pm on 2 July 2013, defendants should notify the plaintiff whether there is any opposition to the filing of the plaintiff's amended particulars. 4. Stand over the substantive matter, the second defendant's notice of motion (filed 13 June 2013) and the plaintiff's application to amend particulars for directions on Wednesday, 3 July 2013 at 9.30am before the list judge. 5. Plaintiff bear the costs of the applications for leave to file a second further amended statement of claim. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 August 2013