Bird v Public Trustee of Queensland

[2005] QSC 54

SUPREME COURT OF QUEENSLAND

CITATION:

Bird v Public Trustee of Queensland & Ors [2005] QSC 054

PARTIES:

GEOFFREY JAMES BIRD
(applicant)
v
PUBLIC TRUSTEE OF QUEENSLAND
(first respondent)
PAULA SCULLY, ADULT GUARDIAN
(second respondent)
ELIZABETH JANE RICKLEMAN
(third respondent)

FILE NO/S:

SC No 536 of 2005

DIVISION:

Applications

DELIVERED ON:

17 March 2005

DELIVERED AT:

Brisbane

HEARING DATE:

16 March 2005

JUDGE:

de Jersey CJ

ORDER:

The application filed 19 January 2005 be dismissed.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – JURISDICTION AND GENERALLY – GENERALLY – where applicant has been declared a vexatious litigant – where applicant is not an active party to the proceedings – where applicant expressed concern that the third respondent would be unable to represent herself effectively – whether applicant should be granted leave to file a Notice of Cross Appeal

Vexatious Litigants Act 1981 (Qld), s 3, s 8, s 11
Guardianship and Administration Act 2000 (Qld), s 80G, s 80O

Lohe v Bird [2004] QSC 023, approved

COUNSEL:

No appearances

SOLICITORS:

No appearances

1. The applicant was on 27 February 2004 declared a vexatious litigant, pursuant to s 3 of the Vexatious Litigants Act 1981 (Qld). See Lohe v Bird [2004] QSC 023. That declaration subsists. He therefore may not institute any legal proceeding without the court’s leave (s 8). Leave must not be granted unless the court is satisfied that instituting the proceeding in question would not be an abuse of process and there is prima facie ground for it (s 11). Subject to that, the court’s discretion is unfettered.

1. The applicant wishes to bring what he terms a cross appeal against a decision of the Guardianship and Administration Tribunal of 9 December 2004.  By that decision the Tribunal appointed the Adult Guardian as guardian for Elizabeth Jane Rickleman for certain personal matters, and continued the appointment of the Public Trustee of Queensland as administrator for her in all financial matters.  The Tribunal also declared invalid an enduring power of attorney by which Ms Rickleman appointed the applicant as her attorney.

1. Ms Rickleman has appealed to this court against the whole of the Tribunal’s decision.  Her notice of appeal is dated 21 December 2004, and names the present applicant as a respondent, even though he was not an “active party” in the proceedings before the Tribunal, and the Tribunal formally excluded him from it (by direction of 7 December 2004).

1. In his affidavit filed on 19 January 2005 in support of this application, the applicant says (para 9):

“I am seeking to bring the proposed cross appeal because it appears to me that there are additional grounds of appeal besides those raised by Ms Rickleman, and as I have doubts about whether Ms Rickleman can effectively represent herself given her lack of legal knowledge.”

The applicant goes on to raise issues such as (without my being exhaustive) whether Ms Rickleman had an adequate opportunity to assimilate and respond to the material on which the Tribunal relied, whether she was adequately apprised of the scope of the Tribunal’s enquiry, and whether material relevant to her capacity which was not before the Tribunal should have been introduced.

1. Ms Rickleman emailed the Principal Registrar on the day of my hearing the instant application, which proceeded on the papers, expressing her support for a grant of leave in favour of the applicant.  I have marked her email Ex 1.

1. I have also had regard to the affidavit of Timothy Feely, filed on 25 February 2005, expressing the opposition of the Public Trustee to a grant of leave.  Mr Feely asserts that “the basic tenor of the application covers the same issues that have already been considered by the court in the various proceedings referred to in Lohe v Bird [2004] QSC 023, those issues being the question of Ms Rickleman’s capacity, the alleged mismanagement of Ms Rickleman’s finances by the Public Trustee, and the applicant’s objection to the manner in which the hearings are conducted, and decisions are made, by the Guardianship and Administration Tribunal…when considering Ms Rickleman’s personal and financial affairs”.

1. I have had regard to all of the affidavit material. 

1. The Tribunal’s power to exclude the applicant from the hearing derived from s 80G of the Guardianship and Administration Act 2000 (Qld). The right of appeal under s 80O of the Act is given only to an “active party”, and save with leave, must be confined to any question of law. To facilitate an “appeal” by this applicant, who was not an active party and who was in fact expressly excluded from the proceedings by the Tribunal in the exercise of its discretion, would run contrary to the legislative scheme.

1. The applicant has expressed concern whether Ms Rickleman has the capacity to represent herself effectively at her appeal.  As observed by McMurdo J in Lohe v Bird:

“Any judge is mindful of the difficulties which unrepresented litigants often encounter in properly articulating their cases, and the frustrations they might feel when their claims are dismissed for reasons which they may not fully comprehend.”

Of course the court may be expected to take appropriate steps to ensure that the grounds of the appeal are adequately explored.

1. I accept the basis of the objection to a grant of leave expressed on behalf of the Public Trustee.

1. Plainly a cross appeal by a non-party, which would fall outside the contemplation of the relevant statute, in circumstances where the party entitled to appeal has done so, would be groundless and amount to an abuse of process.

1. I therefore order that the application filed 19 January 2005 be dismissed.