Energex Ltd v Sablatura

[2009] QSC 356

[2009] QSC 356

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

ATKINSON J

No 11963 of 2009

ENERGEX LIMITED	Applicant
and
BOHUSLAV SABLATURA	Respondent

BRISBANE

..DATE 04/11/2009

ORDER

HER HONOUR:  On 26 October 2009 the applicant, Energex

Limited ACN 078 849 055, applied to this Court for orders that  

the respondent, until trial or further order:

(a) permit the applicant, its employees, agents, workmen,

linesmen, contractors and others authorised by it, with or

without vehicles, plant and equipment of any description to

enter upon and remain, pass and repass, on and over Easement

B in lot 985 on SP 136604 being registered Easement in Gross

Number 707908910 burdening the land described as Lot 985 on

CP S312890, County of Stanley, Parish of Redcliffe (“the

Easement”) for the purposes of exercising its rights under the

easement; and

(b) be restrained, whether by himself or by his servants or

agents or otherwise, from interfering with or obstructing the

exercise of the rights of the applicant under the easement.

The application has become necessary because of the refusal of

the respondent to allow the applicant to attend to works on

the registered easement which the applicant has over the

respondent’s land and a Court order is necessary to enforce

the applicant's rights.  The applicant proposes to undertake work, upgrading the existing electricity network between the South Pine Substation at Brendale and the Hays Inlet Substation at Rothwell.  It involves, amongst other things, the duplication of Energex's existing power line between those two substations.

The evidence from Mr Forno, a Senior Network Risk and

Contingency Planning Engineer employed by the applicant, shows

that the works proposed, which are in the public interest, are

both urgent and necessary, particularly given the proximity of

summer demand.  His evidence graphically shows that unless the work proposed is carried out on the registered easement to upgrade the electricity connection, then there are both safety concerns, and an expectation that Energex will be compelled to conduct an emergency load shed during periods of peak requirements.

Electricity in this day and age is no longer a luxury but a

necessity.  Not only does the comfort and security of the

community and the needs of business rely upon it, but indeed

the lives of some citizens depend on the electricity supply

being maintained.  This is therefore a very serious matter in

need of urgent resolution.

A problem immediately faced by the applicant is not with its

substantive right to gain the order which it seeks, which it

plainly has, but rather with its having an effective

respondent to the application.

The respondent, Mr Sablatura, has been the subject of an

appointment made by the Guardianship and Administration

Tribunal on 29 April 2009.  The Public Trustee of Queensland

has been appointed to be the administrator for Mr Sablatura

for managing all financial matters except day-to-day finances

and CentreLink payments.

Financial matters are defined in schedule 2 part 1 of the

Guardianship and Administration Act2000 (“the Act”), which

provides that a financial matter for an adult is a matter relating to the adult's financial or property matters. The matters which it includes are listed.  They include, in subparagraph (p), “a legal matter relating to the adult's financial or property matters.”  This is in contradistinction to personal matters, which are covered by part 2 of schedule 2 of that Act.  Personal matters include, under subparagraph (i), a legal matter not relating to the adult's financial or property matters.

The application before the court is a legal matter relating to  

Mr Sablatura's property because it concerns a registered easement over real property registered in his name and the rights of the applicant, as against the respondent, pursuant to the registered easement over that property.  The Public Trustee has been appointed by the Tribunal to be administrator for managing all financial matters, which includes legal matters relating to the adult's financial or property matters.  That appointment can only be made by the Tribunal once it has been proved, against the presumption of capacity, that the person, who has an administrator appointed, lacks capacity for the matter.

Section 239 of the Act provides that it does not affect the rules of Court, of the Supreme Court, District Court or Magistrates Court about a litigation guardian for a person under a legal incapacity. The appointment of a litigation guardian in this State is done by the Court under rule 95 of the Uniform Civil Procedure Rules1999.

Rule(95)2 provides:  "If the interests of a party who is a

person under a legal incapacity require it, the court may

appoint or remove a litigation guardian, or substitute another

person as litigation guardian".  If a person is under a legal

incapacity, then under rule 93, a person may start or defend a

proceeding, only by the person's litigation guardian, and

sub-rule (2) of rule 93 provides that, "anything in a

proceeding … required or permitted by these rules to be done

by a party may, if the party is a person under a legal

incapacity, be done only by the party's litigation guardian".

It is apparent that the Tribunal has made an order appointing

the Public Trustee as the administrator for financial affairs

which includes, as I've said, the relevant legal matters.  The

appointment of the litigation guardian is, however, under the

rules, quite properly to be made by the Court.

The Court is satisfied that notwithstanding the presumption of

capacity in the Act, whilst the order remains in force by the Tribunal, and given the evidence before the Court, that the respondent is a person who is under a legal incapacity for the proceeding. The court is satisfied that it is the respondent’s interests to have a litigation guardian appointed to assert or protect his rights. The Court proposed, therefore, to appoint the Public Trustee. However, the Court was informed by the representative of the Public Trustee that that appointment would be refused, pursuant to a power to refuse appointment under which it says it has under s 27(3) of the Public Trustee Act 1978.

The applicant in this case made an offer in open Court to

indemnify the Public Trustee for any costs incurred by it in

acting as litigation guardian.  The Public Trustee

nevertheless asserted that it would not accept appointment by

the Court, however over the luncheon adjournment, further

instructions were sought and the Public Trustee has quite

properly consented to its appointment as litigation guardian.

It is, of course, a matter of some concern to the Court that, where the defendant is or becomes under a legal disability, an applicant or plaintiff  may not be able to vindicate its rights if there is no-one who is able to act as

litigation guardian, apart from the Public Trustee; the Court

is of the view that the Public Trustee is the appropriate

person to be appointed; the Public Trustee nevertheless has

the statutory power to refuse appointment; and exercises that

power to refuse appointment.

In those circumstances, either the statute needs amendment or

the Court would have to look to other public officials to

undertake this important public duty.  It would be hard to

imagine that another public official would be appropriate,

where the Public Trustee was the administrator for such

matters, but as a final resort, the Court would presumably

have to look to the Attorney General in the Court's exercise

of its parens patriae jurisdiction over infants and those who

lack legal capacity.  However, that has not been necessary in

this case because after argument, and after the luncheon

adjournment, the Public Trustee agreed to act as litigation

guardian. 

This is a topic which is in need of law reform to clarify when

the Public Trustee must act as litigation guardian  

particularly where there is no-one else willing and able to

act.  Such law reform should consider if conditions may be

attached to the Public Trustee’s appointment particularly as

to costs.  The need for such law reform has been recognised,

albeit in a different statutory context, in Western Australia

by Pullin J in Farrell v Allregal Enterprises Pty Ltd [2009]

WASC 65.  

I am entirely satisfied by the extensive submissions on behalf

of the applicant and by the evidence before me that Energex's

rights under the easement are incontrovertible and it has

become necessary for the applicant to seek injunctive relief

because of the absolute refusal of the respondent to allow

access to his property, to which the applicant is undoubtedly

entitled.

The applicant is, of course, in such a case, acting not only

in its own interests, but in the public interest.  I note that

the proposed electricity lines span 130 properties and this

property is the only one which has required such an

application.

I therefore make the order by consent, that the Public Trustee

of Queensland be appointed litigation guardian of the

respondent.  I order that the applicant pay the costs of the

Public Trustee of Queensland, of and incidental to his acting

as litigation guardian of the respondent in these proceedings.

I order that the respondent forthwith, upon service of a copy

of this order, permit the applicant, its employees, agents,

workmen, linesmen, contractors and others authorised by it,

with or without vehicles, plant and equipment of any

description, to enter upon and remain, pass and repass, on

and over Easement B on Lot 985 on SP 136604, being registered

easement in Gross Number 707908910, burdening the land

described as lot 985 on CP S312890, County of Stanley, Parish

of Redcliffe (the easement) for the purpose of exercising its

rights under the easement; and be restrained, whether by himself or by his servants, or agents or otherwise, from interfering with or obstructing the exercise of the rights of the applicant under the easement. 

I note that the order is endorsed:

“If you, Bohuslav Sablatura, do not obey this order within the

time specified, you will be liable to Court proceedings to

compel you to obey it and punishment for contempt.” 

I therefore make the order as per draft, which I will initial

and place with the file.  I direct that the order be served on

Mr Sablatura, as well as on the Public Trustee.

-----