Fowkes v Lyons

[2005] QSC 7

[2005] QSC 007

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

WILSON J

No BS6866 of 2002

SUSAN MAUDE FOWKES	Applicant
and
LAWRENCE JAMES LYONS	Respondent

BRISBANE

..DATE 20/01/2005

ORDER

HER HONOUR:  This proceeding was commenced on 26 July 2002 by Susan Maude Fowkes against Lawrence James Lyons.  The plaintiff and defendant are former de facto partners and the plaintiff is claiming a declaration that the defendant holds certain property for her by way of constructive trust.

The medical evidence before the Court is that the plaintiff is suffering from a mental illness.  The Public Trustee of Queensland was appointed administrator for all financial matters including legal matters (except for the management of the plaintiff's disability support pension) by order of the Guardianship and Administration Tribunal made on 18 February 2003.

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HER HONOUR: Pursuant to the Guardianship and Administration Act section 33(2) and schedule 2, section 1 and section 18, the Public Trustee has authority to defend the proceeding including authority to settle it. Pursuant to section 239 of the Act, the Act does not affect rules of Court about litigation guardians for persons under a legal incapacity.

By rule 93 of the UCPR, a person under a legal incapacity may start or defend a proceeding only by the person's litigation guardian. Anything in a proceeding required or permitted by the 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: UCPR rule 93(2).
By the definitions in schedule 2 of the Supreme Court of Queensland Act 1991, a "person under a legal incapacity" means, (a) a person with impaired capacity, or (b) a young person. Further under those definitions, a "person with impaired capacity" is one not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.

The evidence before the Court includes a letter from Dr Rowena Soriano, who is a psychiatric registrar, addressed to the Public Trustee dated 11 January 2005.  According to Dr Soriano, the plaintiff suffers from paranoid schizophrenia and cannabis abuse.  Her condition is guarded to poor.  She has been relatively treatment resistant.  In Dr Soriano's opinion, she may never completely recover from her paranoid delusions as she lacks insight, although she is an intelligent woman who likes cannabis.  Dr Soriano said:

"If she is likely to recover from her mental illness then she would have to be more insightful, not use marijuana and be more compliant with her medication.  (She missed her depot injection a month ago and she only resumed again for worry of what I was going to put in this report about her.)  Timeframe? I don’t know."

In those circumstances, I am satisfied that the plaintiff is a person under a legal incapacity within the meaning of rules 93 and following of the UCPR.

No-one has been found who is willing to act as litigation guardian.  Although the Public Trustee might do so, he is unwilling to do so in this case, and I would be loath to appoint someone who did not consent to the appointment.

The proceeding has been the subject of case flow management by the Registrar pursuant to practice direction number 4 of 2002.  There has been no positive response to correspondence from the Registry, and the issue arises whether the proceeding ought to be deemed resolved within the meaning of the practice direction or some other action taken by the Registrar.  If the action were deemed resolved, administratively the Registrar would be absolved of the responsibility to further pursue this action until steps were taken to reactivate it within the terms of the practice direction.  Deemed resolution in this context would not have the effect of concluding the litigation judicially.  It would simply have the effect of putting the proceeding into abeyance. 

In the circumstances of this case, there is no point in the Registrar continuing to issue correspondence until someone comes forward prepared to act as litigation guardian.

The application which is made by the Public Trustee is first for leave to make the application in accordance with rule 72(1) of the UCPR, and then for orders that no further step be taken in the action until a person files a written consent to be the plaintiff's litigation guardian and that within 28 days of the Court being notified of the appointment of a litigation guardian the matter be set down for a directions hearing.

While I appreciate that the defendant would prefer to have the matter resolved completely, I do not think that should or can happen at this stage.  The last step taken by the defendant was disclosure of documents in October 2004. 

In the circumstances, I make the following orders:

1. Pursuant to rule 72(1) of the UCPR, I give the Public Trustee of Queensland as the plaintiff's administrator leave to make the application filed on 12 January 2005;

2. I order that no further step be taken in the action until a person files in the Registry a written consent to be the plaintiff's litigation guardian pursuant to rule 95(1) of the UCPR;

3. I order that within 28 days of the Court being notified of appointment of a litigation guardian on behalf of the plaintiff, the matter be set down for a directions hearing;

4. I direct the Registrar to take no further action in accordance with practice direction number 4 of 2002 unless directed to do so by the Court; and

5. I reserve costs.

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