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Crockett v Roberts

Crockett v Roberts

Case [2000] TASSC 148 19 October 2000

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[2000] TASSC 148

CITATION: Crockett & Anor v Roberts & Anor [2000] TASSC 148

PARTIES: CROCKETT, David John
CROCKETT, Louise Mary

v
ROBERTS, D
TASMANIA, State of

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  646/1986
DELIVERED ON:  19 October 2000
DELIVERED AT:  Hobart
HEARING DATES:  2 October 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Mental Health - Legal proceedings by and against mentally ill and other protected persons - Appointment of next friend or litigation guardian - Status of next friend or litigation guardian - Necessity for - Application for a stay of proceedings on the basis no litigation guardian appointed, refused - Provisions of statute put person under disability as if not under disability when administration order made.

Rules of Court (Tas), rr292 and 14.
Guardianship and Administration Act1995 (Tas), s56(2)(l) and (5).
In re Hodges (1998) 8 Tas R 242; Dey v Victorian Railways Commissioners (1949) 78 CLR 62, referred to.
Dyke v Stephens (1885) 30 Ch D 189; Ex parte Brocklebank (1877) 6 Ch D 358; Smalley v Robey & Co Ltd [1962] 1 All ER 133; Macfoy v United Africa Co Ltd [1961] 3 All ER 1169, followed.
Aust Dig Mental Health [16]

REPRESENTATION:

Counsel:
             Applicants/Defendants  P Turner
             Respondent/Second-named Plaintiff:     C J Gunson
Solicitors:
             Applicants/Defendants  Director of Public Prosecutions
             Respondent/Second-named Plaintiff:     Abetz Curtis and Worsley

Judgment Number: [2000] TASSC 148
Number of Paragraphs: 31

Serial No 148/2000
File No 646/1986

DAVID JOHN CROCKETT and LOUISE MARY CROCKETT v
D ROBERTS and STATE OF TASMANIA

REASONS FOR JUDGMENT UNDERWOOD J

19 October 2000

On 12 May 1983, Louise Crockett, the second named plaintiff, underwent a leucotomy at the Alfred Hospital in Melbourne. There were post-operative complications. On 20 May 1983, she was admitted to the Launceston General Hospital and transferred from there to the Royal Hobart Hospital on 28 May 1983. The plaintiffs' claim is that the defendants failed to properly diagnose and treat her condition in the two Tasmanian hospitals and, in consequence, she has suffered devastating disabilities.

Proceedings to recover damages for negligence were commenced by the issue of a writ on 7 May 1986. The second named plaintiff commenced proceedings by her next friend, her husband, who was also a party to the action on his own behalf as the first named plaintiff. I infer that the second named plaintiff sued by her next friend because she was incapable of managing her own affairs by reason of mental incapacity notwithstanding that when the proceedings were commenced, the second named plaintiff was not a patient within the meaning of the Rules of Court which then defined a patient to mean:

"A person who, by reason of mental disorder within the meaning of the Mental Health Act 1963, is incapable of managing and administering his property and affairs."

If there was any irregularity about the commencement of the proceedings on behalf of the second named plaintiff, it was cured by order of this Court made on 7 April 1996, pursuant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Crockett v Roberts

Details

AGLC: Crockett v Roberts [2000] TASSC 148
Case: [2000] TASSC 148
Decision Date: 19 October 2000

CaseChat Overview and Summary

The case of Crockett v Roberts was heard in the Supreme Court of Tasmania. The plaintiffs, David John Crockett and Louise Mary Crockett, alleged negligence against the defendants, D Roberts and the State of Tasmania, relating to medical treatment provided to Louise Mary Crockett in 1983. The case involved issues around the appointment of a litigation guardian or next friend to represent Louise Mary Crockett in the proceedings, who was deemed mentally incapacitated. The defendants sought a stay of the proceedings on the basis that no litigation guardian was appointed for Louise Mary Crockett, as required by the Rules of Court.

The court examined the legal issues surrounding the necessity of appointing a litigation guardian for a person under disability and whether the appointment was a mandatory requirement. The court found that the statutory provisions of the Guardianship and Administration Act 1995 (Tas) provided the necessary authority for the administrator to conduct the litigation on behalf of Louise Mary Crockett, rendering the appointment of a litigation guardian unnecessary. The court also noted that the failure to appoint a next friend or litigation guardian resulted in irregular, but not void, proceedings.

Considering the discretion conferred by the Rules of Court, r14, and the inherent jurisdiction of the Court, the judge declined to make the order sought by the defendants for a stay of proceedings. Instead, the judge made an order requiring the second named plaintiff's administrator to notify the defendants' solicitor in writing of any future decision to cease to bring the second named plaintiff's action in her name immediately after making such decision.

Orders