Supreme Court New South Wales Medium Neutral Citation: Stephen Nurrish by his tutor Janice Nurrish v Schwander [2016] NSWSC 91 Hearing dates: 17 February 2016 Decision date: 18 February 2016 Jurisdiction: Common Law Before: Button J Decision: (1) Janice Nurrish is removed as the tutor for the plaintiff in these proceedings. (2) Each party is to pay his own costs of the proceedings before me. (3) The balance of the notice of motion of the plaintiff of 28 January 2016 is stood over before the Common Law Registrar at 9 AM on 2 March 2016. Catchwords: PRACTICE AND PROCEDURE – application for removal of tutor – individual no longer suffering a legal incapacity Legislation Cited: Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 7.14 and 7.18 Cases Cited: Rappard v Williams [2013] NSWSC 1279 Stokes v McCourt [2014] NSWSC 61 Category: Procedural and other rulings Parties: Stephen Nurrish (by his tutor Janice Nurrish) (Plaintiff) Andreas Schwander (Defendant) Representation: Counsel: P D'Arcy King Solicitors: Slater & Gordon Lawyers (Plaintiff) Meridian Lawyers (Defendant) File Number(s): 2013/137860 Judgment 1. This is an application for removal of a tutor, brought pursuant to rr 7.14 and 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules). It is founded upon a notice of motion filed on behalf of the plaintiff on 28 January 2016. After discussion between Bench and Bar table, counsel for the plaintiff was content to press only order 1 in that document with order 2 (and some proposed consent orders with which I was provided) to be stood over for a short period. 2. The solicitor for the defendant was content with all that counsel for the plaintiff proposed, including an order that each party pay his own costs of the hearing before me. 3. The background can be shortly stated. In September 2012, the plaintiff filed a statement of claim in this court alleging professional negligence against a general practitioner and a dentist. I was told that the former proceeding had settled, and it is the latter who is the respondent to the motion. 4. That claim was based upon dental surgery said to have taken place on 11 May 2012, which was said to have caused the plaintiff to suffer a stroke on 2 June 2012. That stroke is alleged to have been caused by a clot that formed on a mechanical valve in the heart of the plaintiff, and which thereafter travelled to his brain and caused an artery to close. 5. The plaintiff was assessed by Dr Stewart, neuropsychologist, as long ago as September 2012. She assessed the plaintiff as having suffered a number of injuries, including visual impairment, acquired dyslexia and cognitive defects. As a result of that assessment, a tutor was appointed through whom the plaintiff has conducted the litigation on the basis that he has been legally incapacitated. The tutor is Mrs Janice Nurrish, the wife of the plaintiff. 6. The first report of Dr Stewart was dated 31 December 2012. Further reports have been prepared: they are dated 23 November 2013, 27 January 2016, and 6 February 2016. I shall not traverse them in detail; suffice to say they show a steady improvement in the impairments suffered by the plaintiff, but by no means a complete recovery. In particular, he remains rather visually impaired. 7. The submission of counsel for the plaintiff is that, in the final report, the well-qualified neuropsychologist, who has been seeing the plaintiff for over three years, has expressed the opinion that he is no longer incapable of conducting his own litigation (with the assistance, of course, of solicitor and counsel). 8. In short it was said that the medical evidence placed before me is all one way; emanates from a medical professional who has had longstanding contact with the plaintiff; emanates from a highly qualified and experienced medical professional; and is not equivocal with regard to the question. 9. Separately, there is an affidavit from the plaintiff expressing his own belief that he is capable of pursuing the litigation without his tutor (although one reflects on the possibility that a person suffering from a cognitive deficit may not be fully aware of the extent of that deficit). 10. There is also an affidavit from his wife, to the effect that she has seen the steady improvement of which Dr Stewart speaks, and in which she expresses her own opinion that the plaintiff no longer requires her formal assistance. 11. Finally, I was told from the Bar table that the solicitor for the plaintiff possesses 21 years' experience in litigation; is an accredited specialist in this area; and that she firmly believes that the plaintiff is quite capable of fulfilling all of the functions that would be required of him as a litigant represented by solicitor and counsel in proceedings such as these. 12. Counsel for the plaintiff helpfully took me to the recent decision of Stokes v McCourt [2014] NSWSC 61. He invited me to [23] to [33] of that judgment of McDougall J, themselves expressed to be based upon the judgment of Hallen J in Rappard v Williams [2013] NSWSC 1279. In particular, I was taken to the following at [29]-[31]: [29] Hallen J adopted as appropriate an explanation of the task given, in relation to different but not materially inconsistent English rules, by Chadwick LJ in Masterman-Lister v Brutton and Co [2003] 1 WLR 1511 at [75]. His Lordship there said that, for the purposes of the relevant rules of court in England: 75 For the purposes of Order 80 and now CPR Pt 21 the test to be applied, as it seems to me, is whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers and experts in other disciplines as the case may require, the issues on which his consent or decision is likely to be necessary in the course of those proceedings. If he has capacity to understand that which he needs to understand in order to pursue or defend a claim, I can see no reason why the law whether substantive or procedural should require the interposition of a next friend or guardian ad litem (or, as such a person is now described in the CPR, a litigation friend). [30] The approach taken by Chadwick LJ received the approbation of Hallen J in Rappard (in particular, at [77], [78]). Further, although on a somewhat different point, his Lordship's reasons attracted the approval of Campbell JA in Doulaveras v Daher [2009] NSWCA 58 at [155], [156]. [31] If one approaches the question according to the test propounded by Chadwick LJ, then it is necessary to ask whether the relevant party (in this case the plaintiff) can deal with the issues in the proceedings with the assistance of appropriate explanation from his or her lawyers and experts retained. As Hallen J said in Rappard at [78], this must extend to all the aspects of conducting a case at law or in equity. It would thus comprehend seeking advice on prospects or on evidence; considering and evaluating risks, costs and reward; dealing with the lawyers in the preparation of the case; and generally being in a position, at any given time, to give appropriate and informed instructions on issues that arise to be dealt with. But, as I have said, that task is not to be seen as one undertaken in a vacuum. It is a task to be undertaken with such advice from the lawyers (and where relevant, from experts) as may be required. 1. I respectfully adopt that analysis. 2. Turning to my determination, I have approached the question with a degree of circumspection. After all, it is only a little over three years ago that the tutor needed to be appointed. As well as that, the report of Dr Stewart of 27 January 2016, based as it is on an evaluation made as recently as 22 January 2016, sounds some notes of caution. They are as follows. 3. Although the plaintiff and his wife have operated a bottle shop for some years, it remains the case that the plaintiff is incapable of operating a credit card machine expeditiously during busy times (par 6.2). 4. He also reported (at par 6.5) that "cognition had improved", but also said that "some problems remain. He felt that he had adapted to these and was better able to manage them". 5. Furthermore, it is reported at par 8.3 that he is incapable of purchasing items over the internet, and requires the assistance of his daughter to do so. 6. Having drawn attention to those passages, I think there is force in the submission of counsel for the plaintiff that some at least of those issues could relate to visual impairment, as opposed to cognitive impairment. 7. There is also force in the submission that the plaintiff will enjoy the ongoing assistance of his wife, quite apart from his solicitor and barrister, in the proceedings; it is certainly not as if he is attempting to prosecute his claim on his own. 8. The point was also made that it seems that the plaintiff and his wife run a successful business together, and it was said that that fact hardly suggests that he is suffering from substantial cognitive impairments. 9. As I have said, I have now had the benefit of an opinion from an expert who has had contact with the plaintiff over some years; the opinion of the wife of the plaintiff (on whose part there is nothing to suggest any motivation other than love for her husband); the opinion of the plaintiff himself; and, finally, the assurance of a highly experienced litigation solicitor. They are all to a single effect: although his deficits may not have completely resolved, the plaintiff is no longer a legally incapacitated person in the way the Civil Procedure Act 2005 (NSW) and the Rules use that term. 10. In short, I consider that the test with regard to the plaintiff no longer requiring a tutor has been made out, and I am content to make the orders sought. 11. I make the following orders: 1. Janice Nurrish is removed as the tutor for the plaintiff in these proceedings. 2. Each party is to pay his own costs of the proceedings before me. 3. The balance of the notice of motion of the plaintiff of 28 January 2016 is stood over before the Common Law Registrar at 9 AM on 2 March 2016. ********** 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: 22 February 2016