Grigg v University of Canberra
[2017] ACTSC 332
•10 November 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Grigg v University of Canberra |
Citation: | [2017] ACTSC 332 |
Hearing Dates: | 23 October 2017 |
DecisionDate: | 10 November 2017 |
Before: | Burns J |
Decision: | See [17] |
Catchwords: | LITIGATION GUARDIAN – litigation guardian due to disability by infancy – litigation guardian due to disability by mental incapacity – Court Procedures Rules 2006 (ACT) – Supreme Court Rules 1937 (ACT) – authority of guardian ceases when plaintiff reaches age of majority – consent and undertaking to act as litigation guardian – wishes of the plaintiff – proper supervision of the plaintiff’s financial affairs |
Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 275, 276, 280, 7000 Supreme Court Rules 1937 (ACT) rr 17, 18 |
Cases Cited: | NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; 94 FCR 247 L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 |
Parties: | Brittany Grigg (Applicant) David Grigg (Former Litigation Guardian) |
Representation: | Counsel Mr S Onitiri (Applicant) Mr C Painter (Former Litigation Guardian) |
| Solicitors Canberra Legal Group (Applicant) AM Legal (Former Litigation Guardian) | |
File Number: | SC 864 of 2005 |
Burns J:
On or about 9 December 1999, the plaintiff was injured when she fell approximately 6 metres from a staircase onto the floor below, at the University of Canberra Campus in the Australian Capital Territory. At that time she was about 20 months old. On 23 November 2005 her then litigation guardian, David Grigg, commenced proceedings in this Court on behalf of the plaintiff seeking damages for her injuries based on the defendant’s negligence. Mr Grigg is the father of the plaintiff.
The injuries sustained by the plaintiff in the accident include a severe head injury, which has impeded her cognitive development. She has very limited literacy and numeracy skills. Her injuries have the potential to significantly impact upon her ability to absorb, consider and understand pertinent information relevant to any proposed settlement of her claim. A recent report from Dr Ilana Hepner, a clinical neuropsychologist, states that the plaintiff “does not have the capacity to make fully informed, reasoned judgments in relation to the quantum of any settlement and of furnishing her solicitors and counsel with appropriate instructions for settlement.”
In early 2016 the plaintiff turned 18.
By an application dated 25 July 2017, the plaintiff seeks orders:
(a) That Mr Grigg be removed as her litigation guardian; and
(b) That her mother, Lyndall Avery, be appointed as her litigation guardian.
Mr Grigg appeared by counsel at the hearing of the application, opposing the orders sought, seeking that the application be dismissed and that the plaintiff’s lawyers be personally required to pay the costs of the application.
These proceedings were commenced on 23 November 2005, so that they were commenced before the Court Procedures Rules 2006 (ACT) (Court Procedures Rules) came into effect on 1 July 2006. At the time that the proceedings were commenced the Supreme Court Rules 1937 (ACT) (Supreme Court Rules) applied. After 1 July 2006 the provisions of the Court Procedures Rules apply to these proceedings by virtue of r 7000 which contains transitional provisions regarding proceedings commenced in this Court before 1 July 2006.
Rule 17 of Division 19.2 of the Supreme Court Rules provided, as at 23 November 2005, that “A child may sue as plaintiff in any action, and defend any action, by his or her litigation guardian”. Rule 18 addressed the rights of persons with a mental disability to sue as a plaintiff in similar terms, that is, requiring a litigation guardian.
The relevant provisions of the Court Procedures Rules are found in Division 2.4.9. By virtue of r 275 a person with a legal disability may start or carry on a proceeding only by their litigation guardian. The phrase “person with a legal disability” is defined in the Dictionary of the Court Procedures Rules as either a child or a person with a mental disability. The term “person with a mental disability” is in turn defined as “a person who is not legally competent to be party to the proceeding”.
It is agreed by all parties that the evidence establishes that the plaintiff is currently a person with a legal disability in that she is a person with a mental disability for the purposes of the Court Procedures Rules. I am satisfied on the basis of the medical evidence that she is a person with a mental disability. I note that by virtue of r 275(6), a party’s litigation guardian who is not a legal practitioner may act only by a solicitor.
10. The application to remove Mr Grigg as a litigation guardian and replace him with Ms Avery is based on the proposition that Mr Grigg has continued to be the plaintiff’s litigation guardian since she turned 18 in early 2016. The Supreme Court Rules did not make, and the Court Procedures Rules do not make, specific provision for removal of a litigation guardian when a child plaintiff reaches their majority, doubtless because it was considered unnecessary to do so.
11. In earlier times, a person by whom an infant plaintiff commenced proceedings was referred to as their next friend, rather than litigation guardian. The change in nomenclature has not, however, changed the nature of the office, subject to specific legislative change. An examination of the office of next friend outside of specific legislative provisions was undertaken by Sackville J in NSW Insurance Ministerial Corporation v Abualfoul [1999] FCA 433; 94 FCR 247, where his Honour said at [27]-[33]:
In considering the creditor’s submissions, it is helpful to commence with a brief examination of the office of next friend independently of the DCR [District Court Rules]. Under the general law, because of an infant’s inability to bind himself or herself, or to incur liability for costs, the infant was incapable of bringing an action without the assistance of some other person responsible to the court for the proper conduct of the suit: Daniell’s Chancery Practice (7th ed, 1932), p 116. This person was known as the next friend (or “prochein amy” in the earlier cases), apparently because he or she was usually a near relative of the plaintiff. If an action was instituted by an infant without a next friend, the defendant could apply to have the action dismissed: p 116. The limitation on the capacity of infants did not extend to matters of substantive entitlement or liability, since at common law an infant could sue and be sued: Haines v Leves (1987) 8 NSWLR 442 at 449 (CA) per Street CJ. The limitation on capacity was procedural.
One reason for requiring an infant plaintiff to sue by a next friend was so that there would be a person answerable to the defendant for the costs of the litigation, although the defendant could waive this benefit: Daniell’s Chancery Practice, p 116; Ex parte Davis (1901) 1 SR (NSW) 187, at 189. The next friend was liable for all costs incurred in the actions brought by the infant, until the infant attained his or her majority: Bligh v Tredgett (1851) 5 De G & SM 74; 64 ER 1024; Simpson on the Law of Infants (3rd ed, 1909), p 391. The next friend could be attached for the non-payment of the costs of an action in which the defendant obtained a verdict: Radford v Cavanagh (1899) 15 WN (NSW) 226a. However, the next friend was ordinarily entitled to recover the costs from the infant’s estate (if there was one), provided he or she acted bona fide: Pritchard v Roberts (1873) LR 17 Eq 222.
The next friend was regarded as an officer of the court appointed to safeguard the interests of the infant: Rhodes v Swithenbank (1889) 22 QBD 577 at 579 per Bowen LJ; Dey vVictorian Railways Commissioners (1949) 78 CLR 62 at 113-114 per Williams J; Ex parte Davis. The conduct of the proceedings was in the hands of the next friend: Rhodes v Swithenbank at 578 per Lord Esher MR. The next friend was not, however, a party to the action: Pink v J A Sharwood & Co Limited [1913] 2 Ch 286 at 289 per Eve J. The next friend derived his or her authority from the court, not the infant, and could be removed if, for example, he or she acted improperly or had an interest adverse to that of the infant: Stephenson v Geiss [1998] 1 Qd R 542 at 557 per Lee J; Simpson on the Law of Infants, pp 384-385.
In general, the next friend would not be allowed to retire without giving security for the costs incurred until that time: Davenport v Davenport (1822) 1 Sim & St 101; 57 ER 40. However, it appears that the substitute next friend, once appointed, was liable to pay all costs in the proceedings for which the infant plaintiff was liable: Bligh v Tredgett.
Where an infant plaintiff attained his or her majority, the infant could elect whether or not to proceed with the litigation. The infant was taken to have elected to proceed if he or she did anything which could reasonably be considered an adoption of the proceedings: Baile v Baile (1872) LR 13 Eq 497 at 508 per Wickens VC. If an infant plaintiff came of age and carried on a suit instituted in his or her name, the plaintiff became responsible for all the costs of the suit: Bligh v Tredgett at 76-77; 1026 per Parker VC.
After the plaintiff became of full age, the next friend was not entitled to take further steps in the proceedings: Brown v Weatherhead (1844) 4 Hare 122; 67 ER 586. But if the next friend purported to take such steps without proof being given to the court that the infant plaintiff had attained his or her majority, the court would not interfere with the next friend’s actions: Almack v Moore (1878) 2 LR Ir 90 at 93-94 per Palles CB.
The course of action which should be taken when an infant plaintiff attained his or her majority, subject to any applicable rules, was described by Philp ACJ in Feeney v Pieper [1964] Qd WN 55:
“When an infant plaintiff attains majority during the proceedings the authority of the next friend in relation to the action ceases and he and his solicitor proceed at their peril. The solicitor upon the plaintiff attaining majority should require instructions from him as to whether he elects to continue the action and if he does, notice that the plaintiff has attained majority should be filed in the Registry and given to the other parties. Subsequent proceedings should be entitled as follows:
‘A.B. late an infant, but now of full age, Plaintiff’.”
Similar observations were made by Harman LJ in Carberry v Davies [1968] 2 All ER 817 (CA) at 818.
12. It is important to note that both the Supreme Court Rules and the Court Procedures Rules separately address disability by infancy and disability by reason of mental incapacity. One reason for this is that the law considers an infant incapable of asserting or protecting their rights, whereas it presumes that an adult is so capable, unless the contrary is established: L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114 (L) at [26]. The Full Court of the Federal Court of Australia in L was called upon to address an appeal by an adult plaintiff against an order that a litigation guardian be appointed to continue the proceedings, they having already been commenced by the plaintiff. The Federal Magistrate hearing the proceedings at first instance had formed the view that the plaintiff may be mentally ill. The Full Court considered the law regarding the appointment of a litigation guardian where it is alleged that an adult plaintiff is intellectually impaired at [23] to [27]:
23The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.
24The law developed in the context of property disputes. In 1891, Kekewich J observed that it was ‘undoubted’ that the Chancery Division of the High Court had jurisdiction ‘to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves – that is to say, to instruct their solicitors to take proceedings on their behalf’: Howell v Lewis (1891) 61 LJ Ch 89 at 89.
25There are valuable statements about the court’s power to appoint litigation guardians in Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511. In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):
[31] In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained.
Chadwick LJ (at [65]) said:
[65] The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.
26There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] (Kennedy LJ); Murphy v Doman (2003) 58 NSWLR 51 at [36] (Handley JA). When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] (Kennedy LJ); Dalle-Molle v Manos (2004) 88 SASR 193 at [17] (Debelle J); Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.
27The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):
[17] … even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.
Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30, AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709 and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy v Doman at [37] (Handley JA); AJI Services Pty Ltd v Manufacturers Mutual Insurance Ltd at [57] (Bell J).
13. In the present case Mr Grigg was appointed litigation guardian because the plaintiff was a child. There could be no basis upon which the Court could at that time have purported to determine that the plaintiff was incapable of properly conducting the litigation for some other reason, such as mental incapacity. The issue simply could not arise. When the plaintiff turned 18, leaving aside for one moment the evidence led in this application concerning her mental capacity, Mr Grigg’s authority to act as litigation guardian for the plaintiff, as a child, ceased. Mr Grigg submitted that the evidence led in this application establishes that the plaintiff continued to be a person under a legal disability at all times after she turned 18, as a person with a mental disability, and therefore his authority as litigation guardian continued. It was the submission of Mr Grigg that the plaintiff’s incapacity had never ceased. He further submitted that in the absence of misconduct on his part, there was no reason for him to be removed as litigation guardian.
14. Mr Grigg’s submission should be rejected. It ignores the distinction between what is, in effect, the irrebuttable presumption of the law that a child is incompetent to conduct proceedings and the rebuttable presumption that an adult is competent to conduct them. Mr Grigg was appointed litigation guardian for the plaintiff in these proceedings as the plaintiff was a child. When she turned 18 his authority to act as litigation guardian ceased and the plaintiff was presumed to be competent to conduct the proceedings. It is only when the Court determines, based on evidence, that she is incompetent by reason of mental disability that the presumption of competency is rebutted. As I said earlier, I am satisfied that the plaintiff is a person with mental disability such that a litigation guardian should be appointed, but that finding does not revive the authority of Mr Grigg to act as litigation guardian.
15. From the above, it will be plain that the first order sought in the Application, that Mr Grigg be removed as litigation guardian, is unnecessary. He ceased to be the plaintiff’s litigation guardian when she turned 18. The plaintiff’s mother, Lyndall Avery, has signed a consent and undertaking to act as the plaintiff’s litigation guardian and, as far as I am aware, Mr Griggs has not. I do not see the fact that Mr Grigg has not signed a consent and undertaking to act as the plaintiff’s litigation guardian as determinative of the question of who should be appointed. I accept that Mr Grigg is a person qualified to be the plaintiff’s litigation guardian, and is willing to sign such a consent. Ms Avery also satisfies the requirements for appointment as a litigation guardian as set out in r 276 of the Court Procedures Rules, so there is not legal impediment to her appointment. In the present circumstances I think that in determining which of Mr Grigg or Ms Avery should be appointed as the plaintiff’s litigation guardian, it is appropriate to give some weight to the wishes of the plaintiff; while she has a mental disability, it is not so profound that her wishes should be ignored.
16. A principal concern expressed by Mr Grigg in this application has been to ensure that the plaintiff’s financial affairs are properly supervised. He submitted that he is better qualified to safeguard the plaintiff’s financial position than Ms Avery. In disposing of this matter I am comforted by the fact that the plaintiff’s financial position will be protected no matter whether Mr Grigg or Ms Avery is appointed litigation guardian. First, each of them may only act through lawyers. Secondly, any settlement of the plaintiff’s claim will need to be approved by a judge of this Court, after careful examination of the relevant material including counsel’s advice. Finally, it has been the practise of the Court to require judgment monies to be paid into Court in such cases, with payment out to the Public Trustee to manage the judgment sum or, alternatively, for some other arrangement to be made which suitably protects the plaintiff.
17. Pursuant to r 280(2) of the Court Procedures Rules, by order, I appoint Lyndall Avery as litigation guardian of the plaintiff. There will be no order as to costs.
| I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Karina Curry-Hyde Date: 10 November 2017 |
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