Supreme Court
New South Wales

Medium Neutral Citation:

Rappard v Williams [2013] NSWSC 1279

Hearing dates:

15 August 2013

Decision date:

10 September 2013

Jurisdiction:

Equity Division

Before:

Hallen J

Decision:

(a) Orders that the Plaintiff's oral application to remove the tutor and to not approve the settlement of the proceedings be dismissed with no order as to costs.

(b) Orders pursuant to s 76(4) of the Civil Procedure Act 2005 that the agreement for the settlement of the proceedings by, or on behalf of, the Plaintiff, a person under legal incapacity in relation to the conduct of legal proceedings, be approved.

(c) Orders in accordance with Paragraphs 1, 2, 3, and 4 of Short Minutes of Order dated 3 June 2013 signed by the tutor for the Plaintiff, the Plaintiff's legal representative, by each of the Defendants and by the Defendants' legal representative.

(d) Orders, pursuant to s 77(3) of the Civil Procedure Act 2005, that the lump sum payable to the Plaintiff, be paid to, and the land devised to the Plaintiff be transmitted into the name of, Dominic Hans Peter Lorenz, the son of the Plaintiff, to be held, in each case, upon trust for the Plaintiff.

(e) Notes the agreement of the parties of the matters in Paragraph 7 of the Short Minutes of Order.

Catchwords:

PRACTICE AND PROCEDURE - Application for approval of compromise by tutor of the Plaintiff - Plaintiff appears in person and opposes need for tutor and approval of terms of compromise - Whether Plaintiff a person under a legal incapacity - Whether tutor otherwise necessary - Whether to approve terms of compromise

Legislation Cited:

Civil Procedure Act 2005
Family Provision Act 1982
Interpretation Act 1987
NSW Trustee and Guardian Act 2009
Protected Estates Act 1983
Succession Act 2006
Trustee Act 1925
Uniform Civil Procedure Rules 2005

Cases Cited:

A v City of Swan [No 5] [2010] WASC 204
Azar v Kathirgamalingan [2012] NSWCA 429
Bobolas v Waverley Council [2012] NSWCA 126
Chong v Mo [2010] NSWSC 251
Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193
Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627
Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388
Goddard Elliott v Fritsch [2012] VSC 87
Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225
Iskandar v Mahbur [2011] NSWSC 1056
Institoris v Falconer [2012] NSWCA 298
Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 3 All ER 162
Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51
P, Re [2006] NSWSC 1082
Pistorino v Connell [2012] VSC 438
R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270
Rowell, Gordon Leslie, As Trustee of the Estate of Burnett Leslie Carlisle (dec'd) v Michael Declan Heffernan [2013] NSWSC 404
Slaveski v State of Victoria [2009] VSC 423
SJ, Application of [2011] NSWSC 372
Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266

Category:

Principal judgment

Parties:

Skye Rosemary Rappard (Plaintiff)
Craig Leonard Williams (first Defendant)
Jamie Manson Williams (second Defendant)

Representation:

Mrs M Bridger (Tutor)
Ms T Catanzariti (Defendants)
Skye Rosemary Rappard (Plaintiff)
KP Lawyers & Barristers (Defendants)

File Number(s):

2011/202301

Judgment

The History of the Present Proceedings

1HIS HONOUR: This matter has been before me a number of times, principally for the approval of a compromise of the substantive proceedings, which involves an application by the Plaintiff, Skye Rosemary Rappard, the daughter of the deceased, June Dawn Williams, for a family provision order under the Succession Act 2006 ("the Act"). (There were associated proceedings, involving two other children of the deceased, each of whom is a person under a legal incapacity, for a similar order, but those proceedings were resolved by orders made on 7 June 2013.)

2The Plaintiff's proceedings were commenced by Summons filed on 21 June 2011. No tutor for the Plaintiff was named in the Summons. During the course of the proceedings, she swore an affidavit on 22 July 2011 and one on 7 November 2012 both of which I have read.

3On 26 April 2013, the Plaintiff's solicitors filed a Consent to Act as Tutor by Dominic Hans Peter Lorenz, one of the sons of the Plaintiff. His appointment was evidenced by that Consent to Act and the Plaintiff's solicitor's certification that the proposed tutor did not have an interest in the proceedings adverse to the interests of the Plaintiff. Mr Lorenz also swore an affidavit on 17 May 2013 in support of his appointment as tutor and the need for a tutor for the Plaintiff.

4The Defendants named in the Summons are the Plaintiff's brothers, Craig Leonard Williams and Jamie Manson Williams, who are the executors named in the Will of the deceased to whom Probate was granted. They did not oppose, and, in fact supported, the appointment of a tutor for the Plaintiff, and the appointment of Mr Lorenz as the Plaintiff's tutor.

5Mr Lorenz attended, with the Plaintiff and her solicitors, and counsel, Mrs M Bridger, at a mediation held before Mediator, Mr G Berecry, on 10 May 2013, at which the substantive proceedings by the Plaintiff (and the associated proceedings) were all resolved subject to the approval of the Court.

6At the mediation, the Plaintiff also had a Disability Support organization worker, Ms Sue Barnes, who provided information as to the facilities that would be available for the Plaintiff at no, or little, cost to her if the matter were able to be resolved.

7Normally, an approval of a compromise of proceedings under the Act would not require published reasons, but, in this case, it seems that questions have arisen regarding the need for the appointment of the tutor for the Plaintiff and in relation to the compromise itself. The Plaintiff has appeared in person, on a number of occasions the matter has been listed, and, so far as I have been able to understand her statements to the Court, she has opposed the need for a tutor and the approval of the compromise of the proceedings upon the terms that her tutor and the Defendants have agreed.

8The Plaintiff has also sent to the Court, marked for my attention, various documents, some apparently written by her, a copy of which documents were not served upon the Defendants. To overcome that problem, prior to 15 August 2013, when the matter was last before me, I permitted the Defendants' solicitor, Mr K Papanicolaou, to inspect all of the documents that had been received from the Plaintiff. Until that was done (on or about 13 August 2013), I did not read any of the documents.

9The Plaintiff also wrote a letter, which was addressed to her own solicitor, counsel, her son, the tutor, and the Defendants' solicitor, a copy of which was forwarded to the Court. I shall not set out the terms of the letter, other than to identify it as commencing with "What God would have his Honour know now". (Apparently, she has written many such letters to her solicitor and counsel, but apart from the tutor referring to these having been written by her, and received, none were the subject of any evidence.)

10In the circumstances, I propose to treat what the Plaintiff has said to the Court (and told others) as an oral application to remove the tutor and for the Court not to approve the compromise that has been reached. Since there are aspects of the case that are somewhat out of the usual, it is desirable that I should deliver a formal judgment recording the reasons that lead me to make the orders that I shall make at the conclusion of these reasons.

11(Following the conclusion of the hearing to which I shall refer, the Plaintiff sent further correspondence to the Court marked to my attention. As recently as this morning, she sent some 24 pages by facsimile transmission to my Associate for my attention. I have not read any of this correspondence.)

A Brief Background to the Substantive Proceedings

12The following facts are uncontroversial and provide a useful, albeit brief, background.

13The deceased died on 2 April 2011.

14The deceased was married to Leonard Edward Rutledge in January 1950. He was the father of the Plaintiff, of Timothy Charles Williams and Nicholas Williams, the Plaintiffs in the associated proceedings, as well as of the Defendants, Leonard and Jamie. Mr Rutledge died in October 1988.

15The deceased left a Will that she made on 23 July 2004. The Will provided for certain bequests to the Plaintiff, of certain chattels (Clause 3.1). There were some other bequests to one, or other, of the deceased's children (Clauses 3.2, 3.3, 3.4, 3.6, and 3.7) and then the creation of a discretionary Trust (the Williams Family Trust), the trustee of which was also a beneficiary (Clause 3.5). The rest and residue of the deceased's estate was left to the Defendants and another son of the deceased, Andrew.

16The Will also provided, in Clause 3.16:

"It is my express wish that my daughter, Skye Rosemary Rappard, make no further claim upon my estate for anything other than what I have bequeathed to her under this my Will"

17This Court granted Probate in common form of the deceased's Will to the Defendants on 9 June 2011.

18There were some inaccuracies in the Inventory of Property that was attached to, and placed inside, the Probate document. In an affidavit sworn 7 May 2013, the Defendants set out the nature and value of the property ($1,041,229) of the deceased at the date of death. They then stated that the gross value of the estate at the date of the affidavit was $1,089,136 and that there were testamentary and other expenses and liabilities of the estate of $75,518. They stated that they did not intend to make any claim for commission.

19It follows that the net value of the estate, subject to the costs of the proceedings, at the date of death was about $1,013,618. (I have omitted any reference to cents.)

20It was agreed that the only eligible persons were the six children of the deceased, all of whom, other than Andrew, were parties in one, or both, of the proceedings. There was evidence that Andrew had been notified of the proceedings, and of the proposed settlements, but he has not commenced his own proceedings, or otherwise participated in these proceedings (although he did send an email dated 8 May 2013 complaining about one Defendant's conduct prior to the death of the deceased).

21I am satisfied that Andrew was well aware of both proceedings and the resolution that had been agreed to, subject to the approval of the Court in each.

The Mediation

22I have referred to the mediation held on 10 May 2013 at which the Plaintiff, and others, attended.

23The Plaintiffs in the associated proceedings, by a representative of their tutor, the State Trustees Limited, Victoria, were also to attend the mediation. Their proceedings were settled, at, or shortly before, the mediation, upon the basis that each Plaintiff would receive $100,000, and costs of $25,000. Costs of the estate of those proceedings were estimated to be $15,000. As stated, I approved the compromise of their proceedings and made orders giving affect to the settlement in June 2013.

24At the mediation, the remaining parties proceeded upon the basis that the amount available to satisfy the Plaintiff's claim would be $773,618. (In Short Minutes of Order filed in each of the proceedings, it is noted that the net value of the assets of the Williams Family Trust was $672,472.)

25(I should mention that the Plaintiff and her tutor were present in Court in June 2013 when the orders were made in the associated proceedings. I noted, as part of the orders and notations, that "the Plaintiff, Skye Rosemary Rappard ... has consented to the orders being made in accordance with the Short Minutes of Order filed in these proceedings, as has her tutor, in the event that she is a person under a legal incapacity".)

26At the mediation, subject to the approval of the Court, the Plaintiff's proceedings were agreed to be resolved upon the basis that the Plaintiff was to receive an absolute interest in real property, where she has been living, at Cootamundra ($180,000 - $200,000), a lump sum of $185,000, such of the deceased's furniture as she wished to receive, and an amount ($50,000) on account of her costs of the proceedings. Thus, the value of the Plaintiff's entitlement out of the balance of the estate of the deceased, inclusive of costs, is between $415,000 and $435,000 (excluding the value, if any, of the furniture that she wishes to retain out of the estate).

27The costs of the transfer of the real property, as well as any associated liabilities (e.g. capital gains tax and stamp duty), are to be borne by the Defendants.

28For her part, the Plaintiff was required to give up any interest, as a discretionary object in the Trust, as well as to release the estate and the Defendants from any claims relating to the administration of the deceased's estate. (This did not include a release of rights to make a further claim under the Act, which release of rights the Court was asked to approve.)

The Evidence going to the need for a Tutor for the Plaintiff

29In the Plaintiff's first affidavit sworn 22 July 2011, she discloses that she suffers from "retinias (sic) pigmentosa" (which is "retinitis pigmentosa"), an hereditary degenerative eye disorder that causes severe vision impairment. She also stated that she suffered depression, insomnia and stress.

30To her second affidavit, there was annexed a copy of a "Home Assessment Summary" from a rehabilitation company obtained to "assess [the Plaintiff's] reasonable needs for home aids bearing in mind her medical condition and prognosis". Under the heading "Current Medical Status", the following appears:

"...

Ms Rappard is reported to be legally blind which was explained by her as totally blind in her left eye and 25% remaining sight in her right. She reported routine use of a magnifier. She was observed to utilise her remaining eyesight with cues from other senses.

In addition, Ms Rappard reported a history of Anaemia and "Psychological somatic syndrome". Ms Rappard's presentation upon assessment was characterised by constant descriptions of a traumatic life from childhood, to a previous marriage, to child rearing and her now living alone. This trauma included descriptions of physical and verbal abuse which clearly distressed her. Facing the current state of the home resulted in her expressing distress of her being unable to care for her mother in the home prior to her death last year. This emotional distress resulted in Ms Rappard being initially unwilling to allow access to the home until she had "cleaned it up" in the next two weeks. The state of the home upon assessment though, revealed that to "clean it up" in this timeline would require significant assistance particularly when consideration is made of Ms Rappard's reduced eyesight. Whether the current state of the home is due to her mental state or impaired vision or both cannot be clearly established however it is fair to conclude that her mental state is a significantly contributing factor. In addition, the nature of conversation with Ms Rappard indicated that she interprets the outcome of conversations at times different to the other person. She was also keen to state when and who would conduct quoting on her home and reluctant to rely on her solicitor handling this, requesting the assessor to follow up recommendations independently.

Ms Rappard's home was significantly cluttered which indicated that she has hoarding tendencies. Whilst this is not uncommon, in conjunction with a visual impairment it does present potential risks associated with falling due to lack of clear pathways.

Ms Rappard spoke of her home as having been a haven, now a prison however remaining extremely important to her. Her words were that she "loved" the home.

Ms Rappard report that she is receiving psychological counselling from a counsellor from Relationships Australia who travels from Wagga Wagga for this service."

31The Plaintiff's solicitor, Peter Wayne Smith, gave evidence that "during the course of the matter, I became increasingly concerned about the Plaintiff's ability to give rational and proper instructions". As a result of his concerns, in October 2012, Mr Smith organised for the Plaintiff to be assessed by Ms Sue Connor, a Psychologist.

32Annexed to Mr Smith's affidavit sworn 17 May 2013, is a copy of the Psychologist's report dated 22 November 2012, which includes the following passages:

"...

2.6 ... Ms Rappard went on to give more details in a rambling, disjointed manner about what happened to her mother in the final years before her death...

...

2.8 Regarding the dispute over her mother's will, Ms Rappard explained her brothers in Melbourne had a solicitor and were also fighting for a share of their mother's will. Ms Rappard alleged her older brothers took advantage of their mother's dementia and had unduly influenced her to change her will. Ms Rappard was also concerned that her children had also been cut out of her mother's will and that she had not been given a fair share or guaranteed ownership of her house.

...

3.1 In my opinion, Ms Rappard's presentation with a range of signs and symptoms characteristic of schizophrenia and meets the diagnostic criteria for this illness (American Psychiatric Association, 1994) (DSM-IV 295.90). This illness has in my view been present for a significant period and is associated with social and occupational dysfunction. In the absence of any mental health history and on the basis of one interview only I have not differentiated between Ms Rappard having paranoid or disorganised schizophrenia given there are features of both. I have rather given her a diagnosis of Undifferentiated Schizophrenia at the present time.

3.2 Ms Rappard's delusions are organised around a consistent theme that her older brother Craig is persecuting her. These appeared to reflect a paranoid belief symptom and were unlikely to be factual. She described Craig as "the dominator and the terminator" and made many allegations about his behaviour. She alleged "now that he's cleaned Mum out he's going for his next victim". Ms Rappard alleged she was her brother's first victim before he targeted her mother. Regarding Craig, Ms Rappard told me "In March a local came up to me and said your brother has paid me $10,000 to shoot you". She said she wanted Craig to go to prison for this. Ms Rappard went on to tell me a very complicated story about her nephew visiting her at 3:40 a.m. on the morning of her interview and discussing writing a statement about Craig's intentions.

3.3 During her interview, Ms Rappard expressed other delusions such as her mother trying to drown her when she was a baby and claimed she could recollect this. She referred to God saving her on several occasions. Ms Rappard also alleged she was victimised by other people in Cootamundra and said she had been attacked and "scalped". Ms Rappard alleged her older two sons were "violated by a female paedophile". She went on to allege the nursing home starved her mother to death and failed to wash and feed her and that other "atrocities" were taking place at the nursing home her mother was in.

3.4 Ms Rappard reported auditory hallucinations that related to her delusions. In response to my query regarding whether she heard voices, Ms Rappard advised she received messages which served as warnings about issues such as someone intending to kill her. Recent messages included "Beware of the bad man" before she met a bad man at a train station. She related how she had heard God talking to her on occasions.

3.5 Other diagnostic features of schizophrenia included Ms Rappard's disorganised speech which included frequent derailment and tangential responses making her hard to follow and impossible to keep on track. Affectively Ms Rappard was elevated and her presentation did not accord with the distress she reported feeling about the issues under discussion.

3.6 Ms Rappard's presentation was odd. She looked unusual and wore a large floppy hat for most of her interview. Ms Rappard appeared younger than her stated age. When she removed her hat, her hair was partially dyed blond. It would seem that Ms Rappard led a fairly restricted life in her local town. Her house was reported to be very cluttered and in need of maintenance and cleaning. Although Ms Rappard's visual impairment might be partially to blame, Ms Scott in her occupational therapy report dated 8 August 2012 regarding the state of Ms Rappard's house commented "it is fair to conclude that her mental state is a significantly contributing factor".

3.7 On a common measure of depression, stress and anxiety ... Ms Rappard was moderately depressed and mildly stressed and anxious.

...

5. Whether Ms Rappard is able to give proper instructions

5.1 Ms Rappard was not able to clearly explain to me what her current legal proceedings were about, answering tangentially and making complicated allegations about her brother Craig. She was very easily distracted from whatever question I asked her making loose associations before relating long confused stories with minimal relevance to what I asked her."

33Test scores on the Depression Anxiety Stress Scales referred to in the report suggest that the Plaintiff was suffering moderate depression, mild anxiety and mild stress. However, her scores "could not be validly interpreted. They are likely to contain considerable distortion and unlikely to be an accurate reflection of [her] objective clinical status".

34The Plaintiff's solicitor also gave evidence that the Plaintiff "expressed great confidence in her son, Dominic, but did not wish him to be appointed her Tutor, feeling that she was quite able to act on her own behalf and that she wished to protect him from the rigors and responsibilities of that role".

35Mr Lorenz, the tutor, however, has stated that he is prepared to take on that responsibility and wishes to be appointed her trustee, to hold the property the subject of the proposed family provision order on her behalf.

36Finally, Mr Smith stated, in relation to the tutor:

"During the course of my acting for the Plaintiff, I have had many discussions with Dominic and, to my knowledge, he has always acted in the best interest of his mother and he seems to be aware of her condition and, to my knowledge, he is of good credit and, to the best of my limited information and belief, is a person of good character, repute and business habits and a suitable person to act as Trustee on behalf of his mother if so appointed."

37When the associated proceedings came before me for the approval of the Plaintiffs' settlement, the Plaintiff's matter was listed at the same time. In the light of what was then said by the Plaintiff, I made directions, including that any medical report upon which the Plaintiff wished to rely, should be served upon the Defendants and upon the solicitors acting for the tutor. The matter was listed before me, for directions, on 15 August 2013.

38I took this course, because I considered it appropriate to treat the Plaintiff's statements made to the Court as an oral application and that I should allow her an opportunity to serve medical evidence to substantiate her assertions.

39The Court received, from the Plaintiff directly, an unsigned report dated 15 July 2013, under the name of Dr Kieran Le Plastrier, identified as the Psychiatry Registrar, Wagga Wagga Base Hospital. The report stated:

"I reviewed Skye Rappard at Cootamundra CMHT today, accompanied by her case manager Lee Seary. She presents with a complicated and tortuous history of family conflicts and estrangements that have culminated in a contested Will following the death of her mother in 2011. This occurs on a background of no previous psychiatric history until 2011 when she sought assistance from Cootamundra CMHT in relation to grief and anger following the death of her mother.

...

She recounts her developmental history in unfavourable terms. She was the eldest of 8 children and "my mother didn't like me". "I spent 50 years waiting for her acknowledgment", which Skye says came in the last few months of her mother's life when she was caring for her. She believes she developed a personality style of being headstrong because of the lack of love in her childhood.

...

She did not report any psychotic or affective symptoms on review of her mental health. She admitted she had been depressed about 12 years ago following the estrangement from one of her sons who had moved to Ireland and had contemplated suicide at the time. She has no suicidal ideation presently, and continues to remain resolute in her fight against the perceived injustices of her brother, legal team, and memory of her mother.

On mental state examination she presented is [sic] ostentatious clothing, carrying an umbrella, grocery bag, and a blind person's walking cane, though she is not blind. At various times she produced a range of objects including photos and professional reports from her bag for me to read. She was bright and reactive, and her affect was congruent to the themes. Her speech was staccato and quite slowed at times, and she spoke with a distinct idiosyncrasy - referring to herself in the third person, and using poetic sentence constructions with hand flourishes to emphasise her points. Her thought form was over-inclusive at times, and circumstantial, but in general she drew conclusions, analogy and descriptions that were understandable and congruent. Her content revolved around perceptions of injustice but were not particularly persecutory in nature. She did not express suicidal ideation, her cognition and perception were intact, and she showed considerable insight into her circumstances. But her judgment was hard to pin down, in the sense that beyond generalized ideas and outcomes, I could not form the sense that she was building a coherent and pragmatic approach to bringing about a conclusion to her many 'loose ends'.

I am not able, without substantial collateral history, to say much more beyond my general impressions from this interview about Skye's mental state. She did not present with a pervasive mood disorder for florid psychosis. There is no history obtained from her to suggest either of these mental health problems either. However, there was a quality to her thinking and thought form that might suggest a hebephrenic picture. Or, in an old fashioned sense, Skye is something of an eccentric. What matters most is that she continues to experience distress and sadness in relation to a number of serious matters in her life, and for this I believe she would benefit from psychologically minded support with out psychologist, Lee Seery. As to whether she has capacity to manage her finances, there was nothing on cross-section to suggest otherwise. Certainly, a diagnosis of mental illness of any form does not automatically constitute incapacity.

I have advised Skye to seek an opinion from a Psychiatrist with experience in court matters if she is wanting to dispute a previous finding in relation to her mental health. To that end I have suggested she see Dr Luke Johnson in Wagga Wagga."

40When the contents of the report were raised on 15 August 2013, the following exchange took place:

"HIS HONOUR: Miss Rappard, I understand that you saw Dr Le Plastrier in Cootamundra?

PLAINTIFF: Yes, and he only wanted me to go to the Wagga psychiatrist because he said "I don't do Court papers but"

HIS HONOUR: well, for whatever reason.

PLAINTIFF: but the psychologist that I had seen in O11, after the death of my mother, of which I took myself, he gave me the psychiatrist's report to give to you because he didn't arrive at the appointment in July and he knew that when I had rung to get an appointment, there was 40 people ahead. My doctor didn't do referrals. There was no need to go to Wagga, your Honour, because

HIS HONOUR: Miss Rappard, now that you have sent me a copy of this report, Dr Le Plastrier advised you, according to this report, to seek an opinion from a psychiatrist being Dr Johnson in Wagga Wagga.

PLAINTIFF: But it was

HIS HONOUR: Are you prepared to see Dr Johnson?

PLAINTIFF: Your Honour, I have had three opinions. The psychologist said grief and anger. The grief suppressed the anger. I have had my counselling with Relationships Australia for a year, and I passed that. I have the doctor's report for the Guide Dogs where he ticked "No psychological problem". And I have the that is three out of three, your Honour. And he only was sending me to get a report because he said "I don't do" that was the only reason that he wanted for me to go was so that he could write a report to you. When the psychologist realised that I couldn't get an appointment before this, then he gave me the psychiatrist's report. And it is pretty evident, your Honour, what he says. They broke me. But I don't need medication. And you gave me enough time, your Honour, to get my head around this to come back and stand before you with my son in peace."

41I also read the affidavit of the tutor, Mr Lorenz, in which he states that the Plaintiff:

"[The Plaintiff]:

5(a) Has difficulty in distinguishing irrelevant matters from relevant matters; and

(b) Becomes fixated on irrelevant matters and finds it difficult or, in some case, impossible to focus on anything else.

(c) Can be quite aggressive in her approach to other people and has a habit of writing to those that she wishes to persuade or feels herself in conflict with and the correspondence is such that it might cause some recipients offence."

...

10(a) My mother would have difficulty giving evidence and/or that her evidence may have been diminished somewhat by her mental condition.

(b) That the proceedings were complicated and were likely to be extended by reason of the above factors and there would be additional hearing time involved and a likely increase in the costs of all parties.

42The tutor acknowledged his obligations as a trustee and gave an undertaking to the Court to act in the Plaintiff's interests. He stated that he has a copy of the Trustee Act 1925 and proposed to seek "advice from legal and other professional advisers and to only reimburse myself for reasonable out of pocket expenses incurred in the carrying out of his duties". He also stated that he was aware of his obligations, as trustee, to invest in safe investments.

43(I have not identified the errors, which the tutor asserts, appear in the report of Dr Le Plastrier. It is not necessary to do so in these reasons.)

44In an affidavit sworn by him on 14 August 2013, the tutor added that he had discussed the nature of the proceedings with the Plaintiff, as well as the role that he would play, and that "she made no objection to me assisting her in the decision making process".

45There has also been filed, and read, an affidavit of Guy Sullivan Matthews, a minister of religion, going to the fitness of the tutor to be appointed trustee for the Plaintiff.

46I should mention that prior to the mediation, the Defendants, too, had concerns about the Plaintiff's capacity. An email dated 23 April 2013, was sent by their counsel, Ms T Catanzariti, to the Court (and to the Plaintiff's counsel) shortly prior to the mediation, advising of the possibility that a notice of motion would be filed seeking the appointment of the NSW Trustee & Guardian as the tutor for the Plaintiff. (An application by one party to appoint a tutor to a party in an opposing interest is within the scope of the UCPR: Iskandar v Mahbur [2011] NSWSC 1056, per Slattery J, at [10]).

47Finally, I should note that I have perused the writings sent to the Court by the Plaintiff. It is fair to say that they are rambling, disjointed, confused and disorganised. It is not really possible to describe, adequately, the nature and contents of those writings. However, there are similar themes to those identified by Ms Connor, the Psychologist. Later in these reasons, I shall refer to some other things that the Plaintiff said in Court.

The Proposed Settlement of the Proceedings

48Although I have not been provided with any advice from counsel as to the reasonableness of the proposed settlement, Mrs Bridger of counsel has, on a number of occasions the matter has been before the Court, requested me to approve the compromise that has been reached. I infer that she regards the proposed settlement as reasonable in all the circumstances of the case.

49In addition, the tutor has stated, in his affidavit of 14 August 2013, that "given the value of the Estate, and given the Estate expenses and the provisions made for Mum's brother's Timothy and Nicholas, the settlement was reasonable. I would have liked to secure a greater sum for her, but I was advised that the expenses of pursuing the matter further would likely out weigh any reasonable benefit that could be expected".

50The tutor also stated that he believes that her legal representatives "have my mother's best interest at heart and wish to bring the proceedings to an end as I do". (Presumably, this has been stated because there are some unsubstantiated allegations made against them by the Plaintiff.)

51Finally, the tutor stated that he had explained the proposed settlement to the Plaintiff and that she had not expressed any disagreement to the matter being resolved on those terms.

Directions Hearing on 15 August 2013

52The Plaintiff's matter was listed before me on 15 August 2013 for further directions. On that occasion, the Plaintiff appeared, again, as did her counsel, Mrs Bridger, the tutor, and the solicitor and counsel for the Defendants.

53Initially, I took the view that I should set down the issues that had been orally raised by the Plaintiff for a separate hearing, so that I could consider, in more detail, the evidence and documents that the Plaintiff had forwarded to me.

54Initially, both counsel asked for an independent expert to be appointed to assess the Plaintiff's condition. However, as there had been no notice of motion filed, or served, seeking that relief, because the Plaintiff seemed to oppose that course, and because I tended to the view that taking that course would be unnecessary because of the medical evidence that I had received, I stated that I would not make such an order.

55Mrs Bridger submitted that I should proceed to deal with the issues raised by the Plaintiff as the evidence on each of them, overall, was abundantly clear; that not much more could be achieved by having a separate hearing of these issues; and that only additional costs would be incurred. She stated that all of the legal representatives, as well as the tutor, and also the Defendants, considered that the proceedings should be finalised without further delay and costs being incurred; and that the tutor, the legal representatives, and the other parties, unanimously, considered that the Plaintiff required a tutor. (Ms Catanzariti, counsel for the Defendants, agreed with Mrs Bridger's submission.)

56Before deciding whether I should proceed as I had been asked, or whether I should set the issues down, for a separate hearing, with a duration of a half a day, the following exchange took place between the Plaintiff and the Bench:

"HIS HONOUR: ... The issue is about whether this matter should be settled on your behalf and whether there should be a tutor appointed to represent your interests; that's what this matter is presently about.

PLAINTIFF: And remember, your Honour, I was asking for more and you said that you would deal with it later?

HIS HONOUR: Yes.

PLAINTIFF: I am now, today, requesting that the trustees be sacked from the position because Guardianship didn't sack them.

HIS HONOUR: Miss Rappard, that is not the issue before me at the moment. The issue before me at the moment is in relation to your claim out of your mother's estate. There is a subsequent issue that arises relating to your capacity in the matter. Now that's what I am dealing with at the moment. So let me try and find some time so that I can consider the position.

...

HIS HONOUR: Miss Rappard, can I just ask you, do you understand what this case is about?

PLAINTIFF: I certainly do, your Honour.

HIS HONOUR: Tell me what the case is about?

PLAINTIFF: All right. Guardianship gave my mother to my brother and I begged and I even wrote because I went and got the papers from the Court, my mother was at risk if they gave her back to my brother.

Three months later I see her on the television and there was the answer, Guardianship made me guardian carer of her health and they eliminated Dominic and Craig, because Dominic decided to contest me and I told him, "You betrayed me that time and you made life difficult for my mother and she suffered". She spent seven months in hospital. Guardianship could have ended it for you and me, your Honour, and they failed to dismiss the trustees for negligence and lack of care.

HIS HONOUR: I see, That's what you think this case is about?

PLAINTIFF: My asking you for more.

HIS HONOUR: Asking me for more what?

PLAINTIFF: Well, you said to

HIS HONOUR: What are you asking me to do in this case?

PLAINTIFF: Dismiss the trustees who my mother and father couldn't trust and sell the company because that eliminates them as trustees of the company and everything is sold and this can end today. And I give my three sons and my grandchildren every penny that the company because I have a share in that company, as do my children, your Honour. And it can end today, right here and now, because I am telling you the truth and I have done nothing but tell you the truth from the beginning and that is my job, your Honour, to stand before you because Miss Bridger and Mr Smith did not have they have no idea of the ten years of suffering of Dominic. The trustees, your Honour, committed fraud, bribery and theft of my mother's belongings and they do not deserve the $200,000 they think that they are going to get and I asked you to please give that money to Dominic, Carl and Eric Lorenz because Miss Bridger said to Mr Con, the solicitor, I have a conflict of interest that the solicitor is representing the trustees, is also representing my mother. Did you not say that?"

57In the light of the oral statements from the Plaintiff, the reports that I had read about the Plaintiff, the tutor's evidence quoted above, the unanimous consent of the other parties and the tutor, and the form and content of the correspondence received from the Plaintiff, that I had perused following inspection by the Defendants' solicitor, I decided that rather than delaying the matter further, and, thereby, allowing further costs to be incurred, I would reserve my decision on whether I should remove Mr Lorenz as the tutor and whether, in all the circumstances of the case, I should not approve the compromise of the proceedings and not make orders as sought.

58I had in mind s 56 of the Civil Procedure Act 2005 and the Court's obligation to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I also had in mind the requirements of s 58 of the Civil Procedure Act, which requires the Court to decide issues concerning orders or directions in the management of proceedings according to the dictates of justice.

59There was no suggestion that the Plaintiff would like the matter to be further adjourned so that other medical evidence could be obtained; or that she wished to engage other legal representatives; or (without intending any disrespect), that if she did not, she would be able to contribute, in a meaningful way, to the legal issues that were to be considered.

60I formed the view that circumstances had arisen which justified a change in the course of the directions hearing and the way in which the issues raised by the Plaintiff should be dealt. For the reasons set out above, I considered that there would be no unfairness to the Plaintiff in dealing with those issues, reserving my decision to enable me to consider carefully those issues.

61I was satisfied that I did not need to further hear from the Plaintiff personally because I considered that she could make any meaningful submissions on the issues: Slaveski v State of Victoria [2009] VSC 423 at [35]; (2009) 25 VR 160, at 185.

The Appointment of a Tutor

62A tutor is a person appointed to represent a person under legal incapacity, whether by the Court or otherwise, in accordance with Part 7 Division 4 of the Uniform Civil Procedure Rules 2005 ("the UCPR") (UCPR Dictionary).

63The UCPR, Part 7, Division 4 (which includes rules 7.13 to 7.18) describes the way in which persons under legal incapacity may participate in litigation.

64Section 3 of the Civil Procedure Act contains the following inclusive, but not exhaustive, definition:

"'person under legal incapacity' means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under section 4 of the Felons (Civil Proceedings) Act 1981) and, in particular, includes:

(a) a child under the age of 18 years, and

(b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007 , and

(c) a person under guardianship within the meaning of the Guardianship Act 1987 , and

(d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009 , and

(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."

65Pursuant to s 11 of the Interpretation Act 1987, which makes a definition in a statute also apply to delegated legislation made under that statute, the definition in the Civil Procedure Act also applies to the UCPR.

66UCPR rule 7.13, which has been described as "a supplementary definition" by Basten JA in Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266, at [19], defines a "person under legal incapacity" as including "a person who is incapable of managing his or her affairs". Otherwise, there is no definition in the UCPR.

67Rule 7.14(1) requires a person under legal incapacity to commence, and carry on, proceedings by a tutor.

68The approval of the Court for the appointment of a tutor is not required. A Court order is only required where it is sought to substitute one tutor for another (UCPR, r 7.15(5)). The fact that a tutor has been appointed after the commencement of the proceedings (and before a mediation) is not determinative of the question whether the proceedings should have been instituted by the Plaintiff through a tutor: see, for example, Chong v Mo [2010] NSWSC 251, at [70].

69A person not being under a personal incapacity to sue, not being an accounting party, not having an interest adverse to the person under a legal incapacity and not relevantly connected with any other party to the proceedings may be a tutor: R v Registrar of Melbourne County Court [1927] VLR 406; (1927) 33 ALR 270. The tutor represents the person and does not pursue a personal interest in the proceedings. These requirements are procedural.

70UCPR rule 7.15(6) confers authority on a tutor to bind the person under legal incapacity. It confers that authority even if the tutor is someone who would not otherwise have authority to bind the person under legal incapacity, by being the manager of a protected person's estate, or the donee of an enduring power of attorney. However the authority that UCPR rule 7.15 confers on the tutor arises only concerning a limited class of acts, namely acts that the UCPR "authorise or require a party to do in relation to the conduct of proceedings". One of the things that the UCPR authorises a party to do is to compromise proceedings.

71Where there is no evidence that a party fits within sub-paragraphs (a) to (e) of the definition of "person under legal incapacity" in s 3 of the Civil Procedure Act, the only way in which she, or he, could be a person under legal incapacity is if the Court were satisfied that she, or he, is a "person who is under a legal incapacity in relation to the conduct of legal proceedings" who does not fit within any of paragraphs (a) - (e) of the definition, or that she or he was a person who was incapable of managing her affairs within the meaning of UCPR rule 7.13.

72There is no definition of the meaning of "managing ... her affairs" in the Civil Procedure Act or in the UCPR. However, there has been discussion, in many cases, as to the meaning of that phrase under the Protected Estates Act 1983 (which has been repealed by s 4 of the NSW Trustee and Guardian Act 2009 with effect from 1 July 2009).

73In Application of SJ [2011] NSWSC 372, I wrote, at [17] - [19]:

"A person's capability to manage her, or his, own affairs, was discussed, by Campbell J (as his Honour then was), in Re GHI (a protected person) [2005] NSWSC 581; (2005) 221 ALR 581. His Honour affirmed the approach stated by Powell J in PY v RJS [1982] 2 NSWLR 70. Powell J had said:

"It is my view that a person is not shown to be incapable of managing his or her own financial affairs unless, at the least, it appears

(a) that she is incapable of dealing, in a reasonably competent fashion with the ordinary routine affairs of man; and

(b) that by reason of that lack of competence there is shown to be a real risk that either

(i) she may be disadvantaged in the conduct of such affairs; or

(ii) that such moneys or property that she may possess may be dissipated or lost ... it is not sufficient in my view merely to demonstrate that the person lacks the high level of ability needed to deal with complicated transactions or that he or she does not deal with even simple or routine transactions in the most efficient manner."

Young J (as his Honour then was) in H v H (Supreme Court, 20 March 2000, unreported) in dealing with the capacity test, said that dealing with the "ordinary affairs of man" does not simply mean being able to go to the bank and draw out housekeeping money. Most people's affairs:

"are more complicated than that that, and the ordinary affairs of mankind involve at least planning for the future, working out how one will feed oneself and one's family and how one is going to generate income and look after capital. Accordingly, whilst one does not have to be a person who is capable of managing complex financial affairs, one has to go beyond just managing household bills."

The reference to "affairs" is a reference to the whole of the person's affairs or his, or her, affairs generally: P v R [2003] NSWSC 819 at [7]. The cause of the incapacity is irrelevant, although the ability to recognise and protect one's own interests plays a central part in the inquiry (P v R at [9])."

74Thus, without trying to be exhaustive, the management of a person's affairs can include the management of the whole range of practical matters in which that person is involved.

75Whether the notion of not being capable of managing one's own affairs that is appropriate for the Protected Estates Act, applies to the definition of "person under legal incapacity" in the Civil Procedure Act and in the UCPR has been questioned. In Doulaveras v Daher [2009] NSWCA 58; (2009) 253 ALR 627, at [156] - [157], Campbell JA wrote:

"156 There is a question of construction about whether the notion of being not capable of managing one's own affairs that is appropriate for the Protected Estates Act also applies to the definition of "person under legal incapacity" in the Civil Procedure Act and Uniform Civil Procedure Rules. One reason why it might be argued that there is a difference is that the effect of a person being found to be not capable of managing their own affairs under the Protected Estates Act is that someone else takes over the conduct of all their affairs, while the practical effect of being not capable of managing their own affairs under the Civil Procedure Act and Uniform Civil Procedure Rules is that someone else takes over the conduct of only a specific piece of litigation. Another reason why it might be argued that there is a difference is that, pursuant to section 13 Protected Estates Act, the estate of a person becomes subject to management only after the court has become satisfied that a person is incapable of managing his or her affairs, while the appointment of a tutor is effective without any formal instrument of appointment or any order or decision of a court (UCPR 7.15(1)), subject only to the filing of the tutor's consent to act as tutor, and a certificate signed by the tutor's solicitor to the effect that that tutor does not have any interest in proceedings adverse to the interests of the "person under legal incapacity" (UCPR 7.16). In relation to somewhat, but not totally, analogous rules of court in England, Chadwick LJ has said, in Masterman-Lister v Brutton & Co [2002] EWCA Civ 1889; [2003] 1 WLR 1511; [2003] 3 All ER 162 at [66]:

"... there was no requirement, as such, in the rules for the filing or consideration of medical evidence. If the rule is to work in practice, the test of mental capacity should be such that, in the ordinary case, the need for a next friend or guardian ad litem should be readily recognized by an experienced solicitor."

157 Whatever may be the outcome of that particular question of construction, there is another question of construction concerning whether being "under a legal incapacity in relation to the conduct of legal proceedings" requires the incapacity to exist concerning legal proceedings generally, or concerning the particular legal proceedings in relation to which the appointment of tutor is made. And whatever may be the outcome of that enquiry, there is a question of what is involved in being "under legal incapacity" in relation to whatever legal proceedings, or type of legal proceedings, is the relevant one. (Chadwick LJ suggests one answer in Masterman-Lister at [58].) None of those questions of construction was argued at the hearing. Nor were they argued on the appeal, so I express no opinion now concerning the correct answer to any of them."

76Whether a person is under a legal incapacity is always a task, and time, specific, matter, dependent upon whether the person has the ability to understand and evaluate the particular task that is in question at the particular time: Guthrie v Spence [2009] NSWCA 369; (2009) 78 NSWLR 225 at [174] - [175]; Azar v Kathirgamalingan [2012] NSWCA 429, per Campbell JA, at [168]. In this case, whether the Plaintiff is a "person who is under a legal incapacity in relation to the conduct of legal proceedings" must be considered. Thus, even though a party may be able to carry out tasks associated with daily living, she, or he, may lack the capacity to understand and evaluate the matters involved in the conduct of legal proceedings, and for that reason fall within the definition of "person under legal incapacity".

77Chadwick LJ in Masterman-Lister v Brutton & Co (referred to in the passage quoted above) also said, at [75]:

"... 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 ..."

78The "conduct of legal proceedings" refers to doing the various things that would need to be done in the course of the proceedings in which the party is involved, including seeking advice as to the nature of the proceedings, about the difficulties, risks, costs and effort, involved in pursuing the claim, and the likely result, including the type of order that may be made, comprehending and evaluating that advice, and engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in running any civil action. In other words, the sort of incapacity involved in the requirement for a tutor is incapacity to do the range of things that is involved in, not only starting, but also continuing, litigation and being able to give instructions and consider advice about settling the proceeding: see, for example, Pistorino v Connell [2012] VSC 438, per Dixon J, at [21] - [24].

79In Dalle-Molle v Manos [2004] SASC 102; (2004) 88 SASR 193, Debelle J observed, at [23], that the question of whether a litigant has the capacity to understand the issues in legal proceedings so that he may conduct them is "issue-specific" and "relates to the facts and subject-matter of the particular case".

80In Re P [2006] NSWSC 1082, Young CJ in Eq considered the evidence pointed to the defendant as a person with "a mental problem in continuing with the litigation". He found that the defendant had "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 proceeding his mouth".

81Finally, I should also refer to Bobolas v Waverley Council [2012] NSWCA 126, in which McColl JA (with whom Macfarlan JA and Tobias AJA agreed) wrote:

"60 In addition to its powers under UCPR r 7.18, the Court has inherent power to appoint a tutor for the purposes of particular litigation under its parens patriae jurisdiction in circumstances where there may be doubt as to whether a person's mental state falls within the statutory definition of "person under legal incapacity": Re P [2006] NSWSC 1082 per Young CJ in Eq at [8]."

Whether the Plaintiff requires a tutor

82Lest it be thought that it has been forgotten, I accept that it is a long standing principle that the law presumes every person to be sane and, in modern times, the principle has been expressed as a presumption that a person of full age is capable of managing his or her affairs: Murphy v Doman [2003] NSWCA 249; (2003) 58 NSWLR 51, at [36], per Handley JA.

83I have also not forgotten that it is a drastic step to interfere with a party's legal right to participate personally, and directly in the proceedings. Where the party resists the proposition that she, or he, is a person under a legal incapacity, it is necessary to scrutinize the evidence relied upon to establish that status carefully.

84In coming to my conclusion, I have not only carefully considered the medical, and other, evidence before me, the contents of the writing that the Plaintiff sent to the Court, but also my own assessment of the issue based upon the incoherence of some of the things that she said to me and which were contained in the writings sent to the Court.

85My reconsideration of the transcript did not alleviate the concerns that I had whilst the matter has been proceeding. Without any criticism intended, I found many statements made by the Plaintiff were made in an unfocussed way and some of her answers were only tangentially relevant to the question asked.

86I have noted also, that the Plaintiff's son, her own legal representatives, and two of her siblings and their legal representatives, are unanimous in the view that she requires a tutor.

87(In regard to the legal representatives, I take the view that they are endeavouring to assist the Court as officers of the Court: Goddard Elliott v Fritsch [2012] VSC 87, at [548]-[549]; Pistorino v Connell, at [5] - [6].)

88I also take into account that the Plaintiff wishes to continue to act for herself, and that she does not state any intention to retain other legal representatives. A litigant in person must manage court proceedings in an unfamiliar and stressful situation. One might think that to do so would require a higher level of capacity: Murphy v Doman at [35]; A v City of Swan [No 5] [2010] WASC 204 at [86].

89Having carefully considered all of these matters, I am comfortably satisfied that the Plaintiff required, and continues to require, a tutor. In particular, I am satisfied that she is a "person who is under a legal incapacity in relation to the conduct of legal proceedings" in that she is incapable of comprehending and evaluating the legal advice that she has received, and otherwise engaging in the continuing process of co-operation, interaction and decision-making that exists between lawyer and client in deciding whether to settle the proceedings. In my view, she also does not appear capable of understanding what is necessary to pursue her claim against the Defendants, to understand the precise details of the proposed settlement, the consequences of approval or otherwise of the proposed agreement to settle, or the advice seemingly proffered by her legal representatives and her son, the tutor.

90Also, she does not seem to have the ability to make decisions and give instructions based upon the advice that she has been given. She does not appear to be capable of assessing the proposed settlement agreement on its merits.

91I also have real doubt that she comprehends the nature of the substantive proceedings and the nature of the Court's jurisdiction under Chapter 3 of the Act. Her focus appears to be upon the alleged wrongdoing of one, or both, of the Defendants, rather than upon her case and entitlement to a family provision order, even though she did refer to "asking for more".

92Even if I were not so satisfied that the tutor had been properly appointed, I would probably exercise the parens patriae jurisdiction and appoint a tutor to protect the position of the Plaintiff. In the circumstances, this is unnecessary.

93In my view, a tutor for the Plaintiff was, and is, necessary, not only to avoid the Plaintiff being significantly disadvantaged in the proceedings, and at the mediation, but also because the Defendants are advantaged in being able to resolve the proceedings, in the knowledge that the Plaintiff's position has been properly protected by the interposition of a tutor. The protection of the Court's own process must also not be forgotten.

94The Court has been greatly assisted by Mr Lorenz's evidence in the proceedings and his demeanour in Court, all of which demonstrates that he, also, has considered the best interests of the Plaintiff not only at the mediation, but otherwise.

95Whilst I note that the tutor lives in Canberra, he is the Plaintiff's son and has been present in Court when the matter has been mentioned on various occasions. He has worked, until relatively recently, as an information technology officer; and is currently looking for full time employment whilst working as a consultant. He is married with four children. His wife works as a schoolteacher.

96There is no conflict of interest between the tutor and the Plaintiff in relation to the proceedings. His consent to being appointed was obtained and provided to the Court. The Plaintiff's solicitor has certified that that the tutor does not have an interest in the proceedings adverse to the interest of the Plaintiff.

97The Plaintiff herself, has expressed confidence in him and the reasons she wishes to have him removed do not relate to him, but rather her desire to spare him from the tasks he would have to perform in that capacity.

98In all the circumstances of this case, I am satisfied that Mr Lorenz is an appropriate tutor and that he is an appropriate trustee to hold the property the subject of the proposed family provision order upon trust for the Plaintiff.

99Accordingly, I propose to dismiss the Plaintiff's oral application to remove Mr Lorenz as the tutor for the Plaintiff and make no order as to costs. (In my view, the Plaintiff's oral application did not result in additional costs being incurred, as the occasions when the Plaintiff appeared were those when the two proceedings were listed in any event.)

Approval of the Proposed Settlement

100Section 76 of the Civil Procedure Act provides:

"(1) This section applies to proceedings commenced by or on behalf of, or against, any of the following persons:

...

(b) a person who, during the course of the proceedings, becomes a person under legal incapacity,

(3) Except with the approval of the court, there may not be:

(a) any compromise or settlement of any proceedings to which this section applies, or

(b) any acceptance of money paid into court in any such proceedings,

as regards a claim made by or on behalf of, or against, a person referred to in subsection (1).

(4) If an agreement for the compromise or settlement of any matter in dispute in any such proceedings is made by or on behalf of a person referred to in subsection (1), the court may approve or disapprove the agreement.

(5) An agreement disapproved by the court does not bind the person by whom or on whose behalf it was made.

(6) An agreement approved by the court binds the person by whom or on whose behalf it was made as if he or she were of full capacity and (if it was made by some other person on his or her behalf) as if that other person had made the agreement as his or her agent."

101In Fairhurst (bht NSW Trustee and Guardian) v Fairhurst [2012] NSWSC 388, I wrote at [29] - [40]:

"The section applies to all proceedings by, or against, a person under a legal incapacity and irrespective of the nature of the claims made by, or against, that person.

The jurisdiction of the court and its procedure is protective in nature. It is akin to the inherent parens patriae jurisdiction of the court under the common law. Relevantly, the Court must act so as to protect the interests of infants: Yu Ge v River Island Clothing Pty Ltd [2002] NSWSC 28; (2002) Aust Torts Reports 81-638 at [28].

In Permanent Trustee Co Ltd v Mills [2007] NSWSC 336; (2007) 71 NSWLR 1, Hammerschlag J said, in relation to such approval:

"[29] The principle is that for the Court to grant approval for a compromise to be entered into by the disable person it must form the view that it is beneficial to his or her interests. The compromise should be assented to by the tutor and there should be opinions from his or her legal advisers that they consider it to be so: Re Birchall. The Court will consider for itself whether the compromise will be beneficial to the disable person: Re Ley's Trusts [1964] 1 WLR 640."

In Fisher (by her tutor) Fisher v Marin [2008] NSWSC 1357, Rothman J said:

"[29] The jurisdiction of the Court is protective in nature and the overriding principle is that the Court will base the approval or disapproval upon the formation of an opinion that the agreement is or is not beneficial to the interests of the person under the incapacity. It is for the Court, not the parties, to determine whether the compromise will be beneficial to the person under an incapacity: Re Ley's Trusts [1964] 1 WLR 640;Permanent Trustee v Mills [2007] NSWSC 336.

...

Ultimately, the principle that I apply is whether the settlement that has currently been reached (and the amount thereof) is in the interests of the plaintiff. In that regard, bearing in mind the risk that, liability being in issue, the plaintiff would receive nothing from any hearing that may occur, the test may be described as whether the risk to the plaintiff, of losing that which is already agreed, is outweighed by the possibility of receiving more if the matter were to go to hearing."

In Elderfield (by her litigation guardian Visentin) v Transport Accident Commission (TAC) [2010] VSC 116; (2010) 55 MVR 206, Robson J referred to these two NSW decisions, and accepted the test laid down by Rothman J in Fisher quoted above. At [20], Robson J went on to say:

"In my view that question is relevantly answered by deciding whether or not, in my opinion, the certainty of obtaining the compromise sum is significantly outweighed by the uncertain prospect of obtaining more by rejecting the compromise after taking into account the risk of obtaining less."

In Stephens-Sidebottom v State of Victoria (Department of Education and Early Childhood Development) [2011] FCA 893, Tracey J said:

"[12] In determining whether to sanction a compromise under O 43 r 9 the court is concerned only with the benefit of the disabled person: see Gillespie v Alperstein [1964] VR 749. In forming the necessary judgment significant weight will be given to the opinions of the applicant's legal advisers and, in some cases at least, the views of the applicant's tutor. In Re Barbour's Settlement [1974] 1 All ER 1188 at 1191, Megarry J, speaking of an application made on behalf of a minor, said that:

Second, there is the important matter of the minor's benefit. When the court is asked to give its approval on behalf of minors to a compromise of a dispute, the court has long been accustomed to rely heavily on those advising the minors for assistance in deciding whether the compromise is for the benefit of the minors. Counsel, solicitors, and guardians ad litem or next friends have opportunities which the court lacks for prolonged and detailed consideration of the proposals and possible variations of them in relation to the attitudes of the other parties and the apparent strength and weakness of their respective claims. When the matter comes before the court, the terms of settlement are in final form and the time for consideration is of necessity less ample. The court accordingly must rely to a considerable extent on the views of those whose opportunities of weighing the matter have been so much greater. Expressing a view on whether the terms of a proposed compromise are in the interests of a minor is a matter of great responsibility for all concerned."

It is clear from s 76 that the jurisdiction to sanction a compromise or settlement is broad and general. It is not confined in any way, and the Court is not given any guidance about how to exercise the power. Not unnaturally, the section does not provide any criteria by reference to which the court should approve, or should decline to approve, the compromise or settlement.

Nor is it useful to purport to lay down an exhaustive list of the criteria by reference to which an application for the approval of a settlement ought to be determined. Whether or not to approve the settlement will be fact specific and determined on its own merits.

It is not the role of the court asked to approve a settlement or compromise to decide whether the outcome of the settlement or compromise is the one that it would have made, but, rather, whether it (as a settlement or compromise) ought to be approved. The court is requested by the parties to exercise its independent judgment on the question whether or not to approve the proposed compromise or settlement. The purpose of court approval is, principally, to protect the person under legal incapacity.

Yet, the power given to the court should also been seen as a facultative one, since except with the approval of the court, there may not be any compromise or settlement of any proceedings to which the section applies and only when the settlement or compromise is approved does it bind the person by whom, or on whose behalf it was made, as if he, or she, were of full capacity and (if it was made by some other person on his, or her, behalf) as if that other person had made the agreement as his, or her, agent.

Where someone opposes the approval of the settlement, her, or his, reasons for opposition may provide "a convenient focus" (see, Jessup J in Darwalla Milling Co Pty Ltd v F Hoffman La Roche Ltd (No 2)) [2006] FCA 1388; (2006) 236 ALR 322, at [39]) by reference to which the court will consider whether to approve the settlement. Similarly, that no one opposes the settlement, in the interests of the person under the legal incapacity, may, in some circumstances, also be relevant.

Section 77(2) of the Civil Procedure Act 2005 provides that money recovered in any proceedings on behalf of any of a person under legal incapacity, is to be paid into court. However, s 77(3) empowers the court to order that the whole, or any part of, such money not be paid into court, but be paid instead to such person as the court may direct, including, if the person is a protected person, to the manager of the protected person's estate."

102What I said was applied by Allsop P (as his Honour then was) in Institoris by his next friend Maria Institoris v Falconer [2012] NSWCA 298, at [2] and by Sackar J in Gordon Leslie Rowell As Trustee of the Estate of Burnett Leslie Carlisle (dec'd) v Heffernan [2013] NSWSC 404, at [7].

103With those principles in mind, I shall now deal with the proposed settlement.

104Overall, I am more than satisfied that it is in the best interests of the Plaintiff to resolve the proceedings on the terms proposed, the effect of which is to provide the Plaintiff with secure and unencumbered accommodation, which she will own absolutely, and a not insignificant capital sum for exigencies of life, which, if invested will also provide a modest income to supplement the disability pension that she receives. An amount for her costs is also provided.

105Relevant matters leading to this conclusion, in the present case, include the cost and complexity of the proceedings; the nature and value of the deceased's estate; the time involved in getting the matter ready for trial and the date of the trial, which is likely to be some months away; the uncertainty of the result in any claim for a family provision order; the possibility of an appeal by the Defendants; and the additional costs to be incurred (even limited to the difference between ordinary costs that might be recovered from the Defendants if the Plaintiff were successful and the indemnity costs and disbursements that the Plaintiff would have to pay to her own solicitors) as well as the costs of the Defendants, which under the proposed agreement, are being borne out of the estate; and the recommendation of the Plaintiff's counsel who is experienced in this area.

106Accordingly, I approve the agreement for the compromise of the matters in dispute in the proceedings made on behalf of the Plaintiff.

107The Court: