Jelicic v Salter and St Andrew's War Memorial Hospital

[2001] QSC 68

SUPREME COURT OF QUEENSLAND

CITATION:

Jelicic v Salter & St Andrew's War Memorial Hospital [2001] QSC 068

PARTIES:

SNEZANA JELICIC
(plaintiff)
v
DAVID ROGER SALTER
(first defendant)
and
ST ANDREW'S WAR MEMORIAL HOSPITAL
(second defendant)

FILE NO/S:

S509 of 1995

DIVISION:

Trial Division

DELIVERED ON:

8 March 2001

DELIVERED AT:

Brisbane

HEARING DATE:

1 March 2001

JUDGE:

Mackenzie J

ORDER:

1. That no further step may be taken in the action until a person files written consent in the Registry to be the plaintiff's litigation guardian pursuant to r95(1) of the Uniform Civil Procedure Rules 1999.
2. 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.
3.  That costs be reserved. 

CATCHWORDS:

MENTAL HEALTH – GUARDIANS, COMMITEES, ADMINISTRATORS, MANAGERS & RECEIVERS – APPOINTMENT – where unrepresented applicant in an action for negligence – whether applicant has capacity to conduct the action – whether necessary to appoint a litigation guardian to act on behalf of the applicant.

Supreme Court of Queensland Act 1991 (Qld) Schedule 2
Uniform Civil Procedure Rules 1999 (Qld) Schedule 4; r95(1)(2)(3)

COUNSEL:

Applicant in person
D Tait for respondent (first defendant)

SOLICITORS:

Flower & Hart for respondent

1. MACKENZIE J:  The applicant is the plaintiff in an action for damages for negligence.  She has been unrepresented from an early stage of the proceedings.  A succinct history leading to the hearing before me is to be found in the affidavit of G R Sivyer filed 23 February 2001. 

1. The essence of the plaintiff's claim is that she underwent a hysterectomy but was not advised of the nature or consequences of the procedure, nor of alternative available procedures.  The respondent denies failing to advise of those matters. 

1. The application was originally filed on 18 August 2000 and on 29 August 2000, White J gave directions focusing on the plaintiff's capacity in the context of UCPR 72.  On 20 November 2000, Moynihan SJA made orders concerning the exchange of psychiatric reports. 

1. At the hearing before me, reports of Doctors Apel and Reddan were before me and each doctor was called by the respondent and cross-examined by the plaintiff.  Each of the doctors stressed that they were not expressing any opinion about the merits of the plaintiff's action.  Their evidence focused on her capacity to conduct the action or to give instructions to legal advisers.

1. Dr Reddan gave a report dated 3 May 2000 (Exhibit E to the affidavit of G R Sivyer filed 28 August 2000).  She concluded then for reasons explained in the report that the plaintiff was at that time incapable of instructing counsel.  Subsequently she was referred to the terms of UCPR 72(1).  She expressed the specific opinion in a short supplementary report on 24 May 2000 that the plaintiff fell within the description of a "person with impaired capacity", and was not capable of making decisions required of a litigant for conducting proceedings (Exhibit G, ibid). 

1. Dr Apel gave a report dated 4 December 2000 (Exhibit AA to the affidavit of G R Sivyer 23 February 2001) in which he concurred with Dr Reddan's opinion that the applicant was currently incapable of instructing solicitors in the matter.  He had seen the plaintiff himself prior to that. 

1. Dr Reddan was given that report for comments.  She adhered (in Exhibit CC ibid) to her previous opinion and noted the similarity of her opinion and Dr Apel's as to the incapability of instructing counsel.  Both doctors adhered to their opinions in cross-examination.  There is reference in the documents to the plaintiff's seeing other medical practitioners including psychiatrists.  None of those were called. 

1. A "person with impaired capacity" is defined, by reason of schedule 4 of the UCPR and schedule 2 of the Supreme Court of Queensland Act 1991, as a person who is not capable of making the decisions required of a litigant for conducting proceedings. A person with impaired capacity is a "person under a legal incapacity" by reason of schedule 2 of the Supreme Court of Queensland Act 1991. The evidence establishes that the plaintiff is a "person with impaired capacity" within the definition in the schedule and is therefore a person under a legal incapacity.

1. A person under a legal incapacity may start or defend proceedings only by the person's legal guardian (UCPR 95(1)).  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 legal guardian (UCPR 95(2)).  A party's legal guardian who is not a solicitor may act only by a solicitor (UCPR 95(3)).  UCPR 95 provides for the appointment of a legal guardian by the court or by a person filing written consent to be legal guardian of a party. 

1. Where a person resists the notion that he or she is a person under a legal incapacity the evidence relied on to establish that status must be scrutinized with particular care so that there can be no suggestion that the procedure is being used to stifle proceedings which are on foot. 

1. The evidence in this particular case in my opinion reaches the necessary standard of persuasion.  However, that does not bring the proceedings to an end, for assumption by someone of the status of legal guardian of the plaintiff would enable further steps to be taken to progress the action. 

1. Mr Tait submits that the appropriate order is that the plaintiff's action be stayed until:

(a)         a person files written consent in the Registry to be the plaintiff's litigation guardian pursuant to UCPR 95(1); or                

(b)         the court appoints a litigation guardian to act on behalf of the plaintiff pursuant to UCPR 95(2).

1. He submits that the next step after that should be a further directions hearing.  Of the alternatives concerning the appointment of a litigation guardian, in the particular circumstances of this case the first option is in my view appropriate.  I do not think that appointment by the court of a litigation guardian is appropriate in the particular circumstances of the case for reasons which may be inferred from the medical reports.

1. Having regard to what has been said, I make the following orders:

1. That no further step may be taken in the action until a person files written consent in the Registry to be the plaintiff's litigation guardian pursuant to r95(1) of the Uniform Civil Procedure Rules 1999.

2.          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. 

3.          With regard to costs, although the first defendant has been successful in his contentions as to the plaintiff's status to carry on the litigation herself, in the circumstances I consider that the appropriate order is that costs be reserved.