Dispute over tutorship for medical negligence proceedings

Porter v Le; Porter v Western Sydney Local Health District [2014] NSWSC 101 involved a medical negligence claim in which there was no dispute that the plaintiff was legally incapacitated and so required a tutor.

However the defendants had filed motions seeking that the plaintiff’s tutor Ms Mottershead be removed and that the proceedings be stayed pending the appointment of someone to replace her. Previously the plaintiff’s tutor had been his wife but later Ms Mottershead was appointed in her place.

Underlying the application appears to have been a concern on the part of the defendants that the new tutor was not a “substantial person” and so would not be able to meet any costs order against her should the claims fail.

The Court was unwilling to grant a stay and commented at [15]:

there is no authority or rule of court requiring a person who acts, or who seeks appointment, as a tutor for a legally incapacitated person to have attained or acquired some specified minimum level of income or assets before being eligible for the office.