Longhurst v Gow

These proceedings are a family provision case. The plaintiff, Ms Longhurst, turns 80 next month. She seeks a family provision order from the estate of her late son. She is currently unrepresented, but has a support person in Court with her. That person is her son Mr Paul Haras, who is the deceased's half-brother. There is no dispute that Ms Longhurst is an eligible person, nor does the defendant executor, for whom Mr L Byrne of Counsel appeared, suggest that her case is hopeless or unarguable.

Ms Longhurst was represented up to and including an unsuccessful mediation. She is now unrepresented. The matter was referred to me as the Family Provision List Judge on 16 April 2026 on the application of the defendant because of concerns about the plaintiff's capacity. On that occasion, I asked Ms Longhurst a number of questions to ascertain her understanding of her claim and what was required to prosecute it. Most of that exchange required her to be prompted by Mr Haras. She told me that Mr Haras was trying to find her a new solicitor.

I stood the matter over to today to enable that to occur, and for that solicitor, if necessary, to raise any concerns with the Court about the plaintiff's capacity. No solicitor has been retained. After various efforts were made during the course of today to enable the plaintiff to appear via telephone from her home, that has occurred and she has again been supported by Mr Haras being with her.

As a result of the discussion that I have had with Ms Longhurst this afternoon, she has now indicated that she does not oppose the course which I propose to take. That course is to commit her estate to the management of NSW Trustee insofar as her estate consists of her rights and obligations as the plaintiff in these proceedings. However, notwithstanding that she does not oppose it, it is appropriate that I deliver reasons to explain why I am taking what is, on any view, an extraordinary step in relation to the conduct of these proceedings.

By way of further facts, yesterday my chambers received from Ms Longhurst a statement of claim, notice of motion, and unsigned affidavit of Rachael Gow dated 29 April 2026. Although it is unsigned, Ms Longhurst has asked me to pay attention to that affidavit. It tells me that Ms Gow is a registered nurse, that she knows her mother and that in her professional opinion as a nurse, her mother exhibits no signs of dementia. Ms Longhurst was apparently very concerned to refute any suggestion that she was suffering from that malady.

I have sought to make clear to Ms Longhurst, and indeed Mr Byrne has made clear in his submissions, there is no question of the Court today considering, let alone finding, that Ms Longhurst has dementia. Similarly, there is no question before me today whether Ms Longhurst would be a person under a legal incapacity so as to engage the provisions of Division 4 of Part 7 of the Uniform Civil Procedure Rules 2005 (NSW). The Court has before it a different and more narrow question, which I will detail shortly.

It is then necessary for me to say something about the claim and the motion, which in my respectful opinion illustrate the problem with which the Court and the defendant are confronted. The claim seeks this relief:

There then follow nine paragraphs of what are described as "Pleadings and particulars" of which an example is paragraph 8:

For the avoidance of doubt, I make clear that I do not propose to grant leave to Ms Longhurst to file the claim. These proceedings have been commenced regularly by a summons, as is appropriate for a family provision case. Given its terms, the claim would be liable to be struck out as embarrassing (in the technical sense).

The motion is also important. Again for the avoidance of doubt, I confirm that I do not propose to grant leave for it to be filed, but its contents are revealing. That motion provides:

Ms Longhurst has confirmed again today that she would like her case to be dealt with entirely on the papers.

Mr Byrne has fairly indicated that were the motion allowed to be filed, his instructions would be to oppose it. In any event, it would be most unlikely that the Court would ever allow a case of this kind to be determined on the papers over the opposition of the defendant and in circumstances where the plaintiff would have to be cross‑examined at any final hearing.

However, what I draw from the claim and the motion is an admission by Ms Longhurst that she cannot run the case herself in Court as a self-represented litigant. That admission is, with respect to her, entirely appropriate having regard to my interactions with her on the last occasion and today.

Mr Byrne submits that the Court should, of its own motion, appoint NSW Trustee to manage the plaintiff's estate in relation to these proceedings pursuant to s 41 of the NSW Trustee and Guardian Act 2009 (NSW). That provision includes:

I record again for her benefit that Ms Longhurst has strenuously maintained that she does not have dementia. I repeat what I said earlier on that topic (see [6] above). She has ultimately come to accept that it is in her best interests that I appoint NSW Trustee to manage her estate in relation to these proceedings. I would, in any event, have done so over her opposition.

The relevant legal principles were compendiously considered by Ward CJ in Eq (as the President then was) in Mao v AMP Superannuation Limited [2017] NSWSC 987 at [129] and following. I respectfully adopt and apply the analysis set out by her Honour in that case.

The first point to observe is that the Court is not determining questions of dementia or lack of capacity such as would engage Part 7. It is a more limited assessment. In that regard, at [145] of Mao, her Honour records this statement by Lindsay J, a highly experienced judge of this division in protective matters:

The enquiry in my respectful opinion in which the Court must engage in under s 41 is whether or not it is satisfied that the plaintiff is incapable of managing, her affairs as constituted by these proceedings as a self‑represented litigant. In Slaveski v Victoria [2009] VSC 596; (2009) 25 VR 160, Kyrou J (as his Honour then was) was dealing with a not dissimilar situation. His Honour there said:

Having regard to a number of the matters which his Honour draws attention to in [32] of the extract in the preceding paragraph, I have no doubt that whilesoever she remains unrepresented, the plaintiff is not capable of managing her affairs insofar as those affairs and her estate constitute her rights and obligations as the plaintiff in these proceedings. In reaching this conclusion, I make no criticism of the plaintiff. The Court must work on the basis of the evidence and what, in this case, the Court has itself seen and heard in its interactions with the plaintiff on the last occasion and today.

Almost every question which I asked the plaintiff today and on the last occasion about these proceedings and what she wanted to occur were unable to be answered by her without some prompting by her son. Based on those interactions and the claim and motion, the Court finds that Ms Longhurst is not capable of conducting these proceedings as a self-represented litigant because the Court:

Insofar as the issue of explaining things to Ms Longhurst is concerned, for the purposes of the examples given in Slaveski and more generally, in my respectful opinion the possibility of explanations must be qualified by being able to be given and understood within a reasonable time or without undue interruption to the conduct of the proceedings. The Court finds, in the alternative to what appears in the previous paragraph, that if (contrary to those findings) Ms Longhurst might eventually be able to be assisted to understand those matters, the explanations would require considerable repetition, emphasis and elucidation. Her understanding could not be achieved in a reasonable time or without undue interruption to the conduct of the proceedings. To permit a hearing to occur in those circumstances would render the conduct of any proceedings completely inefficient, and would be contrary to fulfilling the overriding purpose of the just, quick and cheap resolution of the issues genuinely in dispute.

Again, none of this is to criticise Ms Longhurst. As I have already remarked, it seems to me that the course proposed by Ms Longhurst in her motion makes clear that she herself knows that she cannot run this case herself. I understand why she would much rather have the Court decide it on the papers, but that is just not how cases like this work, especially when it must be conducted fairly not only in relation to Ms Longhurst, but also to the defendant.

Fairness to the defendant means that the defendant must, absent some other reason, be given the opportunity to cross-examine Ms Longhurst. Mr Byrne has informed the Court that is an opportunity the defendant wishes to take although, understandably, with some reluctance and regret.

In reaching this outcome, I have not overlooked what Ward J said in Mao at [141] about dispensing with the procedural requirements mandated by UCPR r 57.3 and 57.4 in relation to applications under s 41 of the Act. I respectfully agree with her Honour's view that when the Court is moving of its own motion under s 41, it is not an "application under s 41" for the purposes of those rules. However, for more abundant caution, I will dispense with the obligation to comply with those rules in the course of making the Court's orders.

The orders of the Court are as follows: