Mary Perera by her tutor Marisa Perera v Alpha Westmead Private Hospital trading as Westmead Private Hospital

1. [1]

   JOHNSON J: On 12 May 2022, in my capacity as Common Law Duty Judge, I heard a Notice of Motion filed for the Plaintiff on 9 May 2022 in proceedings between the Plaintiff, Mary Perera by her tutor Marisa Perera, and the Defendant, Alpha Westmead Private Hospital trading as Westmead Private Hospital.

The Plaintiff’s Notice of Motion

1. [2]

   The Notice of Motion sought:

2. [3]

   The final hearing of the Plaintiff’s claim for damages against the Defendant had been listed to commence on 16 May 2022 with an estimate of two weeks.

3. [4]

   The application before the Court on 12 May 2022 arose from an agreement in principle as between the parties to settle the proceedings. As the Plaintiff had commenced proceedings by a tutor, the prima facie position was that the proposed settlement of the proceedings required approval of the Court under s.76 Civil Procedure Act 2005.

4. [5]

   In ordinary circumstances, the Court would be called upon to exercise its protective function in determining whether to approve a proposed settlement under s.76 Civil Procedure Act 2005 for a person under legal incapacity. In this regard, the Court is required to determine whether the proposed settlement is beneficial to the person under legal incapacity: Permanent Trustee Company Ltd v Mills (2007) 71 NSWLR 1; [2007] NSWSC 336 at [29]; Budini v Sunnyfield (No. 3) [2021] FCA 1540 at [10]-[12]. However, an issue had arisen as to whether the Plaintiff was under legal incapacity at the present time.

5. [6]

   During the hearing of the Notice of Motion, application was made under Rule 7.18 Uniform Civil Procedure Rules 2005 (“UCPR”) for removal of the tutor upon the basis that the Plaintiff was no longer a person under legal incapacity so as to require a tutor.

6. [7]

   In circumstances where a prompt decision was required so that the Court and the parties were aware as to whether the hearing of the claim was to proceed on 16 May 2022, and after hearing submissions, I stated that, if approval under s.76 was required, the Court would approve the settlement of the proceedings. If the Plaintiff was no longer a person under legal incapacity so that the s.76 approval was not required, the Court noted that the proceedings would be settled by the agreement inter partes which had been reached. On either view, a hearing of the Plaintiff’s claim against the Defendant was not necessary.

7. [8]

   In these circumstances, I vacated the hearing commencing on 16 May 2022 and reserved my decision on the issues arising concerning the question whether the Plaintiff was a person under legal incapacity.

8. [9]

   This judgment contains my reasons for the orders made on that day, together with my determination of the question as to whether the Plaintiff is presently a person under legal incapacity so as to require approval of the settlement under s.76 Civil Procedure Act 2005.

The Hearing of the Notice of Motion on 12 May 2022

1. [10]

   Mr J Morris SC and Ms R Bianchi appeared for the Plaintiff on 12 May 2022. Mr S Kalfas SC and Ms K Burke appeared for the Defendant.

2. [11]

   At the hearing, the Plaintiff relied upon the affidavit of Angelo Bilias, solicitor, dated 6 May 2022. The affidavit of Mr Bilias annexed a number of expert medical and other reports relied upon by the Plaintiff in the proceedings (Annexures A-I) together with a confidential memorandum of advice of counsel for the Plaintiff (Annexure J), the affidavit of Mary Perera dated 2 May 2022 (Annexure K), the affidavit of her husband, Ranjan Perera, dated 2 May 2022 (Annexure L) and the affidavit of the tutor and daughter of Mary and Ranjan Perera, Marisa Perera, dated 2 May 2022 (Annexure M). The affidavits of Mary, Ranjan and Maris Perera were all read on a confidential basis insofar as they disclosed the process of negotiations and considerations which bore upon the settlement of the proceedings.

3. [12]

   In addition, the Plaintiff tendered a report of Dr Stephen Allnutt, psychiatrist, dated 9 May 2022 (Exhibit A). The Defendant tendered a folder containing the medical and other reports obtained by the Defendant for the purpose of the proceedings (Exhibit 1).

4. [13]

   Having regard to the issues which arose for consideration by the Court, Mr Morris SC and Ms Bianchi provided helpful written submissions entitled “Submissions on Capacity/Approval” (MFI1).

5. [14]

   As the hearing progressed, as noted earlier, Mr Morris SC made clear that application was made under Part 7 Rule 18 UCPR for the removal of the tutor upon the basis that the Plaintiff was no longer a person under legal incapacity.

6. [15]

   Whilst accepting that the question of the status of the Plaintiff was a matter as between the Plaintiff and the Court, Mr Kalfas SC submitted that it was open to the Court upon the evidence to conclude that the Plaintiff was not now a person under legal incapacity.

Factual Background

1. [16]

   The Plaintiff, Mary Perera, was born on 10 September 1967 in Sri Lanka and is presently 54 years of age.

2. [17]

   In August 1991, the Plaintiff married her husband, Ranjan Perera. The Plaintiff has two daughters, Marisa Perera born 13 June 1992 (now aged 29 years) and Melissa Perera born 30 September 2001 (now aged 20 years).

3. [18]

   In 1995, the Plaintiff underwent atrioventricular canal defect and mitral valve repair in Sri Lanka. The operation was successful. The only other surgery the Plaintiff has had is a tonsillectomy.

4. [19]

   In 2001, the Plaintiff emigrated to Australia with her husband and daughter. Within two weeks of arriving in Australia, the Plaintiff obtained employment as a data entry assistant. The evidence makes clear that the Plaintiff thereafter has worked hard in employment and in raising her family.

5. [20]

   Within six months of arriving in Australia, Mr Perera secured employment and, in 2004, he was employed as quality systems co-ordinator at Goodman Fielder. Since 2008, Mr Perera has been employed as a quality assurance officer at Parmalat Australia at Lidcombe.

6. [21]

   In 2006, the Plaintiff and Mr Perera purchased a residence in Yagoona under mortgage and they continue to live there at the present time.

7. [22]

   The Plaintiff was responsible for the majority of child care and home duties including shopping, cooking, cleaning, washing and ironing and taking the younger daughter to school. Mr Perera was, and remains, responsible for financial matters and bill payments.

8. [23]

   On 18 October 2012, the Plaintiff attended her general practitioner for management of asthmatic symptoms. She was diagnosed with cardiac insufficiency and surgery was recommended.

9. [24]

   On 11 July 2013, the Plaintiff was admitted to Westmead Private Hospital to undergo surgery in the form of mitral valve replacement. It is not necessary, for the purposes of this judgment, to expand upon the detail of what occurred following surgery. It is sufficient to observe that, on the third day post-operatively, the Plaintiff suffered cardiac arrest. She was resuscitated and remained in intensive care for around 80 days. She underwent further surgical procedures whilst in intensive care in relation to the effects of the cardiac arrest.

10. [25]

    On 8 October 2013, the Plaintiff was transferred to Mt Wilga Private Rehabilitation Hospital and underwent intensive physiotherapy, occupational therapy, speech pathology and exercise physiology.

11. [26]

    On 18 January 2014, the Plaintiff was discharged home.

12. [27]

    On 11 December 2017, a Statement of Claim was filed in the Court initiated by the Plaintiff by her tutor, Marisa Perera. An Amended Statement of Claim filed on 25 August 2021 stated, in paragraph 2 of the Pleadings and Particulars:

13. [28]

    During the course of the proceedings since 2017, the Plaintiff has been examined by a range of experts, including medical practitioners and other health professionals for the purpose of the proceedings. The question of the capacity of the Plaintiff has been touched upon in a number of reports.

Relevant Statutory Provisions and Principles

1. [29]

   It is appropriate, at this point, to move away from the facts of the case and refer to statutory provisions and legal principles which bear upon the present question.

2. [30]

   The term “person under legal incapacity” is defined in the following way in s.3(1) Civil Procedure Act 2005:

3. [31]

   Division 4 of the Civil Procedure Act 2005 (ss.74-80) concerns persons under legal incapacity. Section 76 Civil Procedure Act 2005 provides as follows:

4. [32]

   Rule 7.13-7.16 UCPR concern persons under legal incapacity. Rule 7.13-7.16 state:

5. [33]

   There is no application before the Court for an order by the Supreme Court that the estate of the Plaintiff be subject to management under s.41 NSW Trustee and Guardian Act 2009. Nevertheless, this provision was referred to as shedding light on the question of legal incapacity. Section 76(1)(c), (2) and (3) Civil Procedure Act 2005 operate to require approval of a settlement if, during the course of the proceedings, the person is “incapable of managing his or her own affairs” with such a finding to be made “only on the basis of evidence given in the proceedings”. Rule 7.13 UCPR defines “a person under legal incapacity” as including “a person who is incapable of managing his or her own affairs”.

6. [34]

   Section 41 NSW Trustee and Guardian Act 2009 provides:

7. [35]

   To the extent that consideration of provisions in the NSW Trustee and Guardian Act 2009 bear indirectly upon issues raised by the present application, it is appropriate to note s.39 of that Act which states:

8. [36]

   The Statement of Claim in the present proceedings was filed in 2017 upon the basis that the Plaintiff was a “person under legal incapacity” who was incapable of managing her affairs. No ruling by the Court was required in this regard: Rule 7.15(1) UCPR. The litigation was commenced upon the basis that this was the appropriate characterisation concerning the Plaintiff’s capacity.

9. [37]

   Thereafter the proceedings have continued with the Plaintiff’s daughter acting as her tutor and this remained the position as at 12 May 2022. Once again, no court ruling or determination was undertaken or required for the status of the Plaintiff to remain so classified.

10. [38]

    Rule 7.18 provides for the Court to appoint and remove tutors:

11. [39]

    The present application is similar to that considered by Price J in Farr v State of Queensland [2009] NSWSC 906, namely, in the context of a proposed settlement, a declaration that the Plaintiff is not under a legal incapacity for the purposes of Rule 7.14 UCPR. Price J said at [11]-[16]:

12. [40]

    In Murray v Williams [2010] NSWSC 1243, Hammerschlag J determined that the Plaintiff in that case was not a person under legal incapacity so that a tutor was not required. His Honour said at [26]-[28]:

13. [41]

    His Honour concluded at [35]-[36]:

14. [42]

    In Smilevska v Smilevska [2015] NSWSC 1794, Slattery J said at [27]-[28]:

15. [43]

    In determining to remove a tutor under Rules 7.14 and 7.18 UCPR in Nurrish v Schwander [2016] NSWSC 91, Button J said at [12]-[13]:

16. [44]

    In Gerard Malouf and Partners Pty Ltd v NSW Trustee and Guardian and Anor [2017] NSWSC 899, Slattery J said at [25]:

17. [45]

    In Xiang bht Cao v Tong [2021] NSWSC 44, Hallen J at [52] referred to the “inclusive, but not exhaustive definition” of a “person under legal incapacity” in s.3(1) Civil Procedure Act 2005.

18. [46]

    Hallen J continued at [53]-[61]:

19. [47]

    Mr Morris SC submitted that assistance was provided by the judgment of Ward CJ in Eq (as her Honour then was) in Mao v AMP Superannuation Limited [2017] NSWSC 987, a decision which touched upon provisions of the NSW Trustee and Guardian Act 2009 and Rules 7.14 and 7.18 UCPR. Her Honour said at [143]-[148]:

20. [48]

    Examination of the authorities set out above indicates that two related issues arise for consideration regarding a question as to legal incapacity and whether application is made for removal of a tutor:

21. [49]

    The submissions of the parties focused more on the second issue.

22. [50]

    It will be necessary to consider aspects of these principles for the purpose of determining the present question.

Submissions Concerning the Legal Capacity of the Plaintiff

1. [51]

   Mr Morris SC and Ms Bianchi noted that there was no application by any person, including Mr Perera and Marisa Perera, the tutor, for a declaration that the Plaintiff is a person under legal incapacity, or is a person incapable of managing her own affairs for the purpose of the NSW Trustee and Guardian Act 2009. Whilst noting that there was a real concern when the proceedings were commenced, so that the Plaintiff was named with a tutor in the Statement of Claim, it was submitted that the evidence concerning the Plaintiff’s condition, and her progress since that time, was pertinent to the question whether the Plaintiff was, in fact, a person under legal incapacity at the present time.

2. [52]

   It was submitted that the preponderance of the lay and expert evidence was such that the Plaintiff requires assistance with management and investment advice, but that this arose from the fact that she had been awarded (in the proposed settlement) a large sum of money, the management of which she has no experience. It was submitted, correctly, that this state of affairs did not equate to legal incapacity.

3. [53]

   Counsel submitted that the evidence disclosed that the Plaintiff had physical, psychological or possible mild cognitive difficulties, but that this did not amount to legal incapacity either.

4. [54]

   It was submitted that the lay evidence demonstrates the Plaintiff’s understanding of the purpose of the settlement sum and the need to preserve it to provide for her care into the future. There is no evidence of inappropriate expenditure by the Plaintiff, despite receipt of income protection payments and having access to a card linked to that account.

5. [55]

   Reference was made, as well, to aspects of the expert evidence including that of Dr Sara Lucas, the joint neuropsychologist expert, in a report dated 11 November 2020, Dr Anna Castle-Burton, occupational therapist, in a report dated 11 November 2020 and Dr Stephen Allnutt, psychiatrist, in his initial report dated 24 August 2020 and the supplementary report dated 9 May 2022 (Exhibit A).

6. [56]

   In addition, reference was made to the report of Dr Neil Mahant, neurologist and neurophysiologist, dated 1 July 2017.

7. [57]

   Reference was made as well to each of the affidavits of Mary Perera, Ranjan Perera and Marisa Perera which touched upon the observations and experience of family members concerning the present capacity of the Plaintiff.

8. [58]

   It was submitted that the commencement of proceedings using a tutor did not of itself establish incapacity. A number of factors were taken into account in this respect which were addressed in the confidential memorandum of advice of counsel for the Plaintiff. In circumstances where it was submitted that there had been a substantial improvement in the Plaintiff’s functioning since the proceedings were commenced and that protection of assets was of concern in a difficult liability case, it was submitted that the presence of a tutor was not evidence of current incapacity, and that this feature needed to be weighed against the current position as reflected in the evidence. As Ward CJ in Eq stated in Mao v AMP Superannuation Ltd at [143] (see [47] above), the matter needs to be determined at the present time and not at some earlier point in time.

9. [59]

   Mr Morris SC and Ms Bianchi submitted that the making of a declaration that the Plaintiff is incapable of managing her own affairs is a serious step which would serve to restrict the Plaintiff in a significant respect. To the extent that the general principles contained in s.39 NSW Trustee and Guardian Act 2009 were to be considered, it was submitted that the Court should keep in mind the need for the welfare and interests of the Plaintiff as the paramount consideration. The Plaintiff’s freedom of decision and action ought be restricted as little as possible to encourage, as far as possible, the Plaintiff to live a normal life in the community taking into account the views of the Plaintiff and her family, amongst other relevant considerations.

10. [60]

    It was submitted that the Court should determine that the Plaintiff is not, at the present time, a person under legal incapacity. If such a finding is made, it was submitted that no approval under s.76 Civil Procedure Act 2005 is required. The inter partes agreement would be put into effect, by way of the making of consent orders in accordance with the Consent Judgment signed by the legal representatives for the parties which is annexed to the Notice of Motion.

11. [61]

    If the Court determined that the Plaintiff is presently a person under legal incapacity, or a person incapable of managing her own affairs, it was submitted that the Court should make orders that the settlement monies be paid into Court to enable the Plaintiff and the tutor to make application to the Equity Division to seek the appointment of a private tutor.

12. [62]

    As noted earlier, Mr Kalfas SC submitted that it was open to the Court, on the evidence, to make a finding that the Plaintiff is not under legal incapacity and that such a finding is appropriate in this case.

13. [63]

    Mr Kalfas SC acknowledged that the agreed position as to costs would stand, so that the Defendant should pay the Plaintiff’s costs of the proceedings up to 13 April 2022 together with the costs of approval of the settlement or, if s.76 approval was not necessary, the costs of the application for the removal of the tutor as agreed or assessed.

Determination on the Capacity Issue

1. [64]

   The proceedings were commenced in 2017 by the Plaintiff with a tutor, the Plaintiff’s daughter, consenting to act on her behalf. That step was taken by the Plaintiff’s legal representatives having regard to a number of considerations, including the material then relevant to an assessment of the Plaintiff’s legal capacity.

2. [65]

   The proceedings have continued since 2017 with a tutor acting on her behalf. No judicial determination has been made or required concerning the legal capacity of the Plaintiff.

3. [66]

   Following a process of negotiation, including the making of offers of compromise, there is a desire on the part of the parties to settle the proceedings for a sum which, in the Court’s view, is beneficial to the interests of the Plaintiff. As the Plaintiff continues to be represented, it was necessary for the Plaintiff’s legal representatives to seek the approval of the Court for the settlement under s.76 Civil Procedure Act 2005. That is the point which had been reached prior to 12 May 2022.

4. [67]

   Having regard to the application now made on behalf of the Plaintiff, which is supported by her husband and tutor, the question to be determined is whether the Plaintiff is, at the present time, a person under legal incapacity. That question is to be determined by reference to evidence with respect to her current fitness and capacity.

Evidence Concerning the Plaintiff’s Legal Capacity or Incapacity

1. [68]

   Dr Sara Lucas, clinical neuropsychologist, prepared a joint neuropsychological assessment concerning the Plaintiff dated 11 November 2020. In that report, Dr Lucas was asked to express an opinion concerning the Plaintiff’s ability to manage her financial affairs (page 2 of report):

2. [69]

   In a report dated 1 July 2017, Dr Neil Mahant, the Plaintiff’s treating neurologist, provided the following description of the Plaintiff’s neurological condition (page 2 of report):

3. [70]

   In his initial report dated 24 August 2020, Dr Allnutt was asked about the Plaintiff’s cognitive functioning and her ability to manage her own financial affairs (page 9 of report):

4. [71]

   In a report dated 9 May 2022 (Exhibit A), Dr Allnutt addressed the question of the Plaintiff’s capacity to manage her own affairs. Dr Allnutt noted the following information which had been furnished concerning the Plaintiff (page 1 of report):

5. [72]

   Dr Allnutt provided a detailed outline of his interview with the Plaintiff on 28 April 2022 which was supplemented by a telephone call to the Plaintiff’s husband on 10 May 2022. In the course of this summary, Dr Allnutt said (page 3 of report):

6. [73]

   Dr Allnutt undertook a documentation review with respect to expert reports concerning the Plaintiff which had been provided to him (pages 3-4 of report).

7. [74]

   Dr Allnutt’s mental state examination of the Plaintiff was summarised by him in the following way (page 4 of report):

8. [75]

   Dr Allnutt expressed the following opinion with respect to the Plaintiff’s ability to manage finances (pages 4-5 of report):

9. [76]

   The affidavits of the Plaintiff, her husband and daughter were relied upon on a confidential basis with respect to the approval application if s.76 approval is required. It is appropriate to refer to parts of these affidavits which bear upon the related issues of legal incapacity and capacity of the Plaintiff to manage her affairs. As this is a live issue on the application, reference to that evidence does not cut across the rationale for confidentiality concerning this material.

10. [77]

    The affidavit of the Plaintiff dated 2 May 2022 provides a clear and coherent understanding of the position which has been reached and reflects her own direct involvement in the decision making to accept the Defendant’s offer of compromise.

11. [78]

    In that part of the affidavit which may be disclosed for the purpose of this application, the Plaintiff states that she and her husband plan to see a financial advisor if the settlement proceeds. She states that she has never dealt with such a large sum of money and neither has her husband. She wishes to invest the money so as to obtain enough income to pay medical bills and to pay for some transport and cleaners, and invest the rest to pay for future problems if they occur.

12. [79]

    The Plaintiff states that she does not wish to be involved in deciding the actual investments, but to invest in known performing financial institutions. She also wishes to pay off the house to take financial pressure off her husband, and enable him to retire when he wants, rather than to keep working just to pay the mortgage and bills.

13. [80]

    The affidavit of Ranjan Perera dated 2 May 2022 also provides a helpful picture of the Plaintiff’s condition and capacity at the present time. Mr Perera states that it is proposed to obtain financial advice, which is necessary given the quantum of the sum involved. He expresses the belief that it would be psychologically beneficial for the Plaintiff to know that she does not require a trust manager and is found to be a capable person. Mr Perera confirms that the Plaintiff has attended every legal conference and the mediations and many appointments with experts.

14. [81]

    Mr Perera confirms that the Plaintiff understands that the question as to whether to appoint a trust manager is one to be determined by the Court.

15. [82]

    In her affidavit of 4 May 2022, Marisa Perera states that her mother’s condition has improved slowly over time, but she has never returned to her former abilities. Ms Perera addresses the question of her mother’s capacity to manage her financial affairs. Ms Perera provides a helpful assessment of her mother’s capacity to manage financial affairs over recent years. She states at paragraphs 16-25 of the affidavit:

16. [83]

    Ms Perera explained, as well, in the affidavit the careful process of consideration within the family, in which the Plaintiff was fully involved, leading to the decision to accept the Defendant’s offer of compromise.

17. [84]

    In that part of the confidential memorandum of advice which bears upon the question of the Plaintiff’s capacity (and which may be disclosed for the purpose of this decision), counsel for the Plaintiff noted that there has been significant functional improvement in recent years given the stabilisation of the Plaintiff’s medication. Further, the Plaintiff has participated in all conferences where instructions were necessary to be given, and the family has never made application to appoint a guardian under the NSW Trustee and Guardian Act 2009. It was noted that there is no evidence of abuse or exploitation within the family. To the extent that the Plaintiff’s husband and elder daughter were concerned that the Plaintiff might dissipate the fund through her natural generosity, the family has stated that there is no evidence that the Plaintiff has engaged in this type of expenditure, nor has there been any sign of gambling, online purchases or imprudent spending habits even though she has had access to funds, including income protection payments.

18. [85]

    The submission for the Plaintiff is that the medical evidence does not provide support for a conclusion that the Plaintiff is incapable of managing her own affairs so as to require the whole of the settlement amount being placed under the control of an independent trustee. Whilst there is no doubt that the Plaintiff will require assistance and professional advice in managing a large sum of money, it is submitted that this would be the case in any event for a person receiving a sum in the quantum involved in this case.

Conclusion Concerning the Incapacity Issue

1. [86]

   The settlement of the proceedings will see a very substantial sum of money being paid to the Plaintiff. Having regard to the nature of the claim and the evidence which would be placed before the Court at a final hearing, it is understandable that the settlement sum is very substantial.

2. [87]

   With respect to the first issue concerning the capacity of the Plaintiff to provide instructions and to communicate with her legal representatives (see [48] above), the question is whether the evidence demonstrates that the Plaintiff is capable of giving instructions in the sense explained by Price J in Farr v State of Queensland (see [39] above). I am satisfied that the Plaintiff is so capable so that this aspect does not require the continuing appointment of a tutor for the Plaintiff.

3. [88]

   The second issue involves a practical and realistic assessment of the Plaintiff’s capacity to manage her affairs. It may be taken that any person will require financial advice concerning management of a large sum of money. The evidence points clearly to the Plaintiff, with the support of a loving family, being capable of managing her affairs, as outlined in the cases considered earlier in this judgment.

4. [89]

   In my view, on the evidence before the Court on this application, the Plaintiff is not presently a person under legal incapacity. It is clear that the Plaintiff has a number of physical and mental deficits arising from events which have given rise to these proceedings. However, I am not satisfied that the Plaintiff is not capable of managing her own financial affairs. In this regard, I have taken into account the provisions of the NSW Trustee and Guardian Act 2009, as well as relevant provisions of the Civil Procedure Act 2005 and the UCPR.

5. [90]

   I am satisfied that the Plaintiff, in her responsible and supportive family setting, is able to manage her financial affairs. Undoubtedly, given the quantum of the settlement sum, the Plaintiff requires expert financial and accounting advice. She is well aware of this, as are her family members, including her husband and her daughter, who is the tutor. There is a careful and responsible attitude displayed by the Plaintiff and her family concerning the prospect of receipt of a substantial sum of money as a settlement and the need for appropriate planning and management of that fund.

6. [91]

   The question as to whether the Plaintiff is presently under a legal incapacity is not a theoretical one. It has practical and financial consequences for the Plaintiff.

7. [92]

   Those consequences should only flow where the person is, in fact, a person under legal incapacity at the time of the proposed settlement. Having regard to the evidence placed before the Court on the present application, I am not satisfied that the Plaintiff is a person under legal incapacity who is incapable of managing her financial affairs.

8. [93]

   In reaching this decision, I have kept in mind the important provisions in s.39 NSW Trustee and Guardian Act 2009 (see [35] above). The Court should keep firmly in mind the interests of the person in question, and the desirability of preserving that person’s rights and independence, unless there is a proper basis for concluding that the person is not capable of managing their own financial affairs.

9. [94]

   Having concluded that the Plaintiff is not a person under legal incapacity and is not incapable of managing her own affairs, it is not necessary for the Court to grant its approval to the proposed settlement under s.76 Civil Procedure Act 2005. As noted earlier, if this point had been reached, I would have approved the settlement in any event upon the basis that it is beneficial to the interests of the Plaintiff. The appropriate decision to be made, with the Court exercising this protective function, would have been to approve the settlement as sought by the parties.

10. [95]

    However, it is not necessary for the Court to exercise that function as the Plaintiff is not, in my view, a person under legal incapacity for the purpose of s.76 Civil Procedure Act 2005.

Orders

1. [96]

   In accordance with paragraph 2 of the Notice of Motion filed 9 May 2022, the Court declares that the Plaintiff is not a person under legal incapacity within the meaning of ss.3 and 76 Civil Procedure Act 2005 and Rule 7.14 Uniform Civil Procedure Rules 2005.

2. [97]

   To the extent that it is necessary, I make an order under Rule 7.18 UCPR removing the tutor from the proceedings.

3. [98]

   It is sufficient to note the terms of the settlement agreed between the parties. I will make orders in accordance with the Consent Judgment annexed to the Notice of Motion, with appropriate amendments as agreed between the parties at the hearing on 12 May 2022.

4. [99]

   By consent, I make the following orders: