Aynsley v Chief Executive, Department of Transport and Main Roads; Aynsley v Gold Coast City Council - [2013] QLC 21

LAND COURT OF QUEENSLAND

CITATION:Aynsley v Chief Executive, Department of Transport and Main Roads; Aynsley v Gold Coast City Council
[2013] QLC 21

PARTIES:Leslie William Aynsley
(applicant)
v.
Chief Executive Officer, Department of Transport and Main Roads
(respondent) AQL313-09
and
Leslie William Aynsley

(applicant)

v.

Gold Coast City Council

(respondent) AQL328-09

FILE NOs:AQL313-09
AQL328-09

DIVISION:General Division
PROCEEDING:  General Applications for the appointment of a litigation guardian
DELIVERED ON:                  Ex tempore - 17 May 2013
DELIVERED AT:                   Brisbane
HEARD ON:  17 May 2013
HEARD AT:Brisbane
MEMBER:Mr WA Isdale

ORDERS:         AQL313-09
1.    The general application filed on 26 April 2013 is refused.
2.    The trial of this matter is adjourned to a date to be fixed.
3.    This matter is set down for further review and directions at 9.30am on Wednesday 12 June 2013.
4.    The costs of today, and the costs thrown away due to the trial not proceeding, are reserved.
AQL328-09
1.    The General Application filed on 26 April 2013 is refused.
2.    This matter is set down for further review and directions at 9.30am on Wednesday 12 June 2013.
3.    The costs of today are reserved.

CATCHWORDS: Litigation guardian ― applications for appointment ― jurisdiction of Land Court to find incapacity requiring appointment of a litigation guardian ― lack of such jurisdiction ― distinction from power to appoint litigation guardian once finding of disability made by body with required jurisdiction ― sufficiency of evidence of disability to allow it to appoint litigation guardian if Land Court does have jurisdiction

Guardianship and Administration Act 2000
Land Court Act 2000
Land Court Rules 2000
Powers of Attorney Act 1998
Uniform Civil Procedure Rules 1999

Jelicic v Salter and St. Andrews War Memorial Hospital [2001] QSC 68
L v Human Rights and Equal Opportunities Commission FC 233 ALR 432

APPEARANCES: Mr CL Hughes SC and Ms J Chapple instructed by McMahon Clarke for Mr Aynsley
Mr DC Rangiah SC and Ms JS Brien instructed by Mr GR Cooper, Crown Solicitor, for the Chief Executive, Department of Transport and Main Roads

Mr BG Cronin instructed by Gall Standfield and Smith for the Gold Coast City Council

Ms D Prendergast instructed by Small Myers Hughes lawyers for Mr Aynsley

HIS HONOUR: The Court has before it today, general applications brought in both cases by the applicant, Mr Leslie William Aynsley, in relation to the matters of AQL313-09 and AQL328-09. The first is the matter of Aynsley and the Chief Executive, Department of Transport and Main Roads. The second matter is Mr Aynsley and the Gold Coast City Council.
In both cases, the applications are, that pursuant to rule 4 of the Land Court Rules and rule 95 of the Uniform Civil Procedure Rules of 1999, a person whose identity has been changed from that of the person named in the applications and is presently a gentleman who is a solicitor of the Supreme Court, be appointed as the litigation guardian for the applicant in these proceedings. So, in both cases, the applications are identical and the applications have been heard together this morning.
Submissions have been made by senior counsel, Mr Hughes for Mr Aynsley, Mr Rangiah of senior counsel for the respondent, the Department of Transport and Main Roads and Ms Prendergast for Mr Aynsley. Mr Cronin for the Gold Coast City Council made no submissions. Ms Prendergast was instructed by solicitors, Small Myers and Hughes and Mr Small of that firm is the person who I am informed has orally agreed to be appointed as the litigation guardian but has not yet confirmed that by affidavit.
The submissions from the applicant, Mr Aynsley’s counsel, Mr Hughes SC, have been to the effect that the Court has jurisdiction and the power, because of the operation of the Uniform Civil Procedure Act rule 95 and rule 4 and other rules of this Court, to make the order sought. Essentially, the order sought can be made in accordance with rule 95 of the Uniform Civil Procedure Rules if this Court is satisfied that Mr Aynsley is in need of the protection of this provision.
The provision provides that under subsection (2) of rule 95, if it is in the interests of a party who is a person under a legal incapacity, if those interests require it, the Court may appoint or remove a litigation guardian or substitute another person as litigation guardian. I note the presence of the word “may” which indicates the discretion has to be exercised by the Court.
Objection has been made by Mr Rangiah of senior counsel for the Department of Transport and Main Roads, essentially, to the point that the Court does not have, in his submission, jurisdiction to decide if a person is under a legal disability for those purposes and he pointed to the jurisdiction that is provided by the Powers of Attorney Act 1998 under section 111 and by the Guardianship and Administration Act of 2000 by sections 81 and 146, his submission being that provision is specifically made for the Queensland Civil and Administrative Tribunal (QCAT) and for the Supreme Court which also has a parens patriae jurisdiction to make the determination that a person is under a legal incapacity. Once that determination is made, in his submissions, it may then be the case that this Court would be able to act upon that determination but lacks the capacity to make such a determination itself.
I have been referred to some authorities, particularly, Jelicic v. Salter and St. Andrews War Memorial Hospital [2001] Queensland Supreme Court 68, decision of his Honour Mr Justice Mackenzie and a decision of the Full Court of the Federal Court in L v. Human Rights and Equal Opportunity Commission, a decision of the Full Federal Court reported in 233 Australian Law Reports 432.
Submission has also been made that the evidence, in its present form, is not sufficient for this Court to be satisfied if, indeed, it has jurisdiction to decide that Mr Aynsley is under a legal incapacity, such that a litigation guardian, for the matters before the Court presently, ought to be appointed. In that context, I note that there is litigation currently before the Supreme Court which I understand is to return to the Supreme Court on the 31st of May this year. Justice Henry of that Court has made an order requiring certain evidence to be put before the Supreme Court that includes evidence from a neuro-psychologist who, on the material filed in this Court, intends to have her final report unavailable until the 24th of May 2013; that is Dr L Troy.
So, it appears that the evidence which the Supreme Court wishes to hear in relation to the matter which is, essentially, on all fours with that which would be before this Court, concerning the capacity of the litigant, is not yet all to hand and is not expected to be, at least until the 24th. This Court has presently listed these two matters for hearing, the first commencing on Monday, the 20th of this month, for hearing for two weeks.
Having heard the submissions that have been made in relation to the question of jurisdiction and particularly, cognisant of the specific grants of jurisdiction in the legislation that I have referred to other Courts and tribunals, I note that under the Land Court Act, the Land Court is a specialist jurisdiction, constituted under the Land Court Act. The Land Court Act does not include any provision which appears to me to give it jurisdiction to decide upon the question of whether a litigant before it is under a legal incapacity.
It is my finding, therefore, that this Court lacks jurisdiction to decide whether Mr Aynsley is under a legal incapacity or not. If I be wrong about this, I will proceed to consider whether the evidence is such that the Court could be satisfied on the evidence available before it today that he was under a legal incapacity and I have read the material that has been filed and I note that particularly the report of the neuro-psychologist, a person of specialist qualification in this area, is yet to be supplied.
In the circumstances where a person is assumed by our law to be of capacity it is necessary for there to be sufficient proof that the person is not of capacity. I am not satisfied on the material that has been provided so far that Mr Aynsley is under a legal incapacity such that it is required that this Court appoint or remove a litigation guardian in his case. So, I am not satisfied on the material presently provided to the Court that Mr Aynsley is under an incapacity such that a litigation guardian should be appointed.
In relation to the trial of the matter that is presently listed to proceed on the 20th of May 2013, it ought now not proceed and will be adjourned to a date to be fixed. The costs of the proceedings today are reserved.

Orders
AQL313-09

1. The general application filed on 26 April 2013 is refused.
2. The trial of this matter is adjourned to a date to be fixed.
3. This matter is set down for further review and directions at 9.30am on Wednesday 12 June 2013.
4. The costs of today, and the costs thrown away due to the trial not proceeding, are reserved.

AQL328-09
1. The General Application filed on 26 April 2013 is refused.
2. This matter is set down for further review and directions at 9.30am on Wednesday 12 June 2013.
3. The costs of today are reserved.

WA ISDALE
MEMBER OF THE LAND COURT