Supreme Court New South Wales

• Medium Neutral Citation: Klewer BHNF Klewer v Royal Alexandra Hospital for Children [2014] NSWSC 1639
• Hearing dates: 14 November 2014
• Decision date: 14 November 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1) I decline to make order 2 in the notice of motion filed on behalf of the plaintiff on 24 September 2014, that being the only order pressed by the plaintiff today.

(2) The matter is relisted before the Registrar of the Common Law Division at 9 am on Friday 21 November 2014.

(3) The costs of the motion today are reserved.

• Catchwords: CIVIL LAW - PRACTICE AND PROCEDURE - negligence - where tutor appointed unable and unwilling to continue as tutor - no replacement tutor proposed - whether tutor should be removed
• Legislation Cited: Civil Procedure Act 2005 (NSW), s 14; New South Wales Trustee and Guardian Act 2009 (NSW), s 41; Uniform Civil Procedure Rules 2005 (NSW), r 7.18
• Category: Interlocutory applications
• Parties: Robert Carl Klewer (Plaintiff); Royal Alexandra Hospital for Children (Defendant)
• Representation: Counsel: A Scotting (Plaintiff); Solicitors: Curwoods Legal Services Pty Ltd (Defendant); NSW Trustee and Guardian (Amicus)
• File Number(s): 2009/297327

EX TEMPORE Judgment

1 In these proceedings a rather complex situation has developed.

2 To provide the background succinctly, by way of an amended statement of claim, the plaintiff, Mr Robert Klewer, alleges that, as a result of negligence by a Children's Hospital when he was being treated for a brain tumour, he suffered "severe personal injury, loss and damage".

3 It seems that in the past his brother was appointed as his tutor, on the basis that the plaintiff was incapable of managing his own litigation to a sufficient degree of competence.

4 Today, Mr Scotting, who in order to assist the administration of justice appears on a pro bono basis, has pressed only one order in the notice of motion filed 24 September 2014. That is an order pursuant to r 7.18 of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules) that Mr Ryan Klewer be removed as the plaintiff's tutor.

5 In support of that proposition the affidavit of Ryan Klewer of 3 June 2014 was read. Without going into the details of it, it is sufficient to say that Mr Ryan Klewer has said that logistically and for personal reasons it has been very difficult for him to act as the tutor appropriately. It has also led to some personal problems in the family. Ultimately, Mr Ryan Klewer has said at [10] that in effect he would like to be removed as tutor. He has expressed an understanding that the New South Wales Trustee and Guardian could be a replacement.

6 Ms Phang from the New South Wales Trustee and Guardian has kindly appeared today as a friend of the court without any opposition from either party. She has explained that her position is that the New South Wales Trustee and Guardian could well be open to that course. But suffice to say that there is an essential precondition before it could adopt that role, and that essential preceding step not having been taken, it is simply impossible for her organisation to be appointed today.

7 That is not a proposition from which Mr Scotting, who appears for the current tutor, seeks to dissuade me.

8 To make things more complicated, Mr Scotting has told me from the Bar table that he understands that the plaintiff wishes now to appear for himself in the proceedings. It is the position of the plaintiff, in a nutshell, that he is capable of doing so.

9 I think that there are some considerations that give one pause with regard to that.

10 The first is that in the past, at least, it was felt that it was appropriate that a tutor be appointed.

11 Secondly, at [3] of the affidavit of Ryan Klewer that was read this morning, it is said that "in or about 1992 Robert suffered brain damage following removal of a tumour on his brain". It is also said, without quoting directly from the affidavit, that a physical injury arose, namely right foot drop and also a right side weakness to his body, which to my mind is suggestive at least of some sort of neurological deficit.

12 Ms Hoeben, who appears for the defendant, has accepted that there is a rather tangled problem here, but unless I have mistaken her position, it is that if it be the case the tutor no longer wishes to be the tutor, so be it. She would not seek to oppose the single order pressed by Mr Scotting.

13 I am fully sympathetic to the proposition that a person who is a tutor and no longer wishes to be one, who indeed feels he is not capable of doing so properly, should not be forced to remain as one.

14 Having said that, I raised with Mr Scotting two concerns that I had. The first was r 7.18(1)(b), which says "If the person [that is, the plaintiff] has a tutor, the court may remove the party's tutor and appoint another tutor".

15 In other words, it seems that the Rules are not countenancing the removal of a tutor without the appointment of another, thereby leaving a party bereft tutor.

16 Secondly, as I have said, I think one can infer with reasonable safety that there is a real question about whether the plaintiff's seeming assertion now that he is perfectly capable of running his own litigation is actually correct.

17 It goes without saying that the parties are not in a position today to put before me medical evidence about that, and to engage in detailed cross-examination and submissions about that question.

18 So, in short, I have a real concern not only about whether the Rules actually permit me to do what Mr Scotting is submitting I should do, but secondly, leaving aside the Rules entirely, about whether it would be an appropriate course to adopt.

19 Mr Scotting has suggested that the tutor should be removed and thereafter the proceedings can be stayed. He says the proceedings are not effectively being advanced in any event. Thereafter, there could be a consideration by the Court and the parties of s 41 of the New South Wales Trustee and Guardian Act 2009 (NSW) which, I am told, would be the starting point for the appointment of the New South Wales Trustee and Guardian as a manager of the estate of the plaintiff, and also perhaps in due course as a new tutor.

20 Mr Scotting's thesis is that that would put the "ball in the court" of the plaintiff to advance things. Mr Scotting has made the point that in truth the litigation has not been advanced in any event as things stand.

21 I think there is force in what Mr Scotting has said, and I think that it is a constructive proposal. But having said that I am not prepared to stay proceedings simply, as it were, in an effort to advance them. In particular, I am not prepared to do that in a situation where I have a real question about whether the untutored plaintiff would be in a position to dissolve the stay in any event.

22 I think, in short, that there is an entanglement of issues in this matter that will require a more detailed resolution and reflection by the parties. If it be the case that there is a real dispute as to whether or not the plaintiff is capable of managing his own litigation, there will need to be evidence about that, and cross-examination about that, and submissions about that.

23 But as things stand, first, I am not persuaded that I have a power to simply remove a tutor without appointing another one.

24 Secondly, even if it be the case that I should override the Rules, pursuant to s 14 Civil Procedure Act 2005 (NSW), do not think that the interests of justice call upon me to do that in this case.

25 As well as that, I do not think that it is appropriate for me to simply stay the proceedings on the material that has been placed before me today.

26 The result of that analysis is that I decline to make order 2, that being the only order sought in the notice of motion filed on 24 September this year. Having said that, I do not think that this situation can go unresolved. It needs resolution very promptly.

27 In particular, as I have said, I cannot conceive of a situation whereby a person can be kept on as a tutor where he has made it perfectly clear that he neither wishes to be the tutor nor believes he is capable of properly doing so.

28 My suggestion is that the matter will return to the Registrar very promptly, and my suggestion is that that be at 9 am next Friday with an eye to the parties setting down a timetable for filing of evidence. It could be that on that occasion the parties would make some sort of submission about the transfer of the matter to the judge of the Equity Division who manages the Protective List.

29 The other order I propose to make, subject to anything the parties wish to say today, is that costs of today be reserved.

30 In this matter I make the following orders:

(1) I decline to make order 2 in the notice of motion filed on behalf of the plaintiff on 24 September 2014, that being the only order pressed by the plaintiff today.

(2) The matter is relisted before the Registrar of the Common Law Division at 9 am on Friday 21 November 2014.

(3) The costs of the motion today are reserved.

**********

Decision last updated: 19 November 2014