Whether a person is under a legal incapacity for the purposes of requiring a tutor is a task-specific and time-specific inquiry focused on whether the person can comprehend and evaluate legal advice, engage in the co-operative decision-making process between lawyer and client, and understand the issues on which consent or decision is necessary in the particular proceedings. A litigant in person who opposes the appointment of a tutor may require a higher level of capacity. The court's jurisdiction to approve a compromise under s 76 of the Civil Procedure Act 2005 (NSW) is protective in nature, and the overriding principle is whether the settlement is in the best interests of the person under incapacity, assessed by weighing the certainty of the compromise against the uncertain prospect of obtaining more at trial.
The full text is available to signed-in members, including the 35 later cases that cite this judgment.
5 of the 35 citing cases carry a classified treatment. How each court treated it is available to signed-in members.