King v Fister - [2019] QSC 217

SUPREME COURT OF QUEENSLAND

CITATION:

King & Ors v Fister & Anor [2019] QSC 217

PARTIES:

BARRY DAVID KING

(first applicant)
WENDY HELEN O’BRIEN
(second applicant)
ANDREW ROBERT KING
(third applicant)
BARRY DAVID KING, WENDY HELEN O’BRIEN AND ANDREW ROBERT KING AS LITIGATION GUARDIANS FOR ILA ELIZABETH KING
(fourth applicant)

v
KAREN AMANDA FISTER
(first respondent)
CHRISTOPHER ROBERT HALL

(third respondent)

FILE NO:

BS No 7936 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 May 2019

JUDGE:

Martin J

ORDER:

I will hear the parties as to the appropriate form of order to reflect these reasons.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – CHANGE OF LEGAL REPRESENTATION – where the first, second and third applicants were appointed as litigation guardians for their mother – where their mother now seeks to have them removed and, in their place, her solicitor be appointed – where there is no dispute among the parties that she requires a litigation guardian – whether the litigation guardians should be removed – whether the mother’s solicitor should be appointed in their place

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME AND PLACE – where the first, second and third applicants were appointed as litigation guardians for their mother – where their mother now seeks to have them removed and, in their place, her solicitor be appointed – where two of the applicants permanently reside in Victoria and the third spends most of his time in Victoria – where the mother and the respondents reside in Cairns – whether the proceedings ought to be transferred to the Supreme Court in Cairns

Power of Attorney Act 1998, s 116

Uniform Civil Procedure Rules 1999, r 39, r 93, 94, 95(2)

Berman v Schwartz [2012] ONSC 6851, cited

Legal Services Commissioner v Mellick [2012] QCAT 333, cited

Legal Services Commissioner v Mellick [2016] QCAT 155, cited

Manasse v Shine Lawyers Pty Ltd [2019] QSC 123, cited

National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155, applied

COUNSEL:

H Mellick as solicitor for Ila Elizabeth King
M De Waard for the fourth applicant

L Nevison for the first and third respondents

SOLICITORS:

Mellick Smith & Associates for Ila Elizabeth King
Gadens Lawyers for the fourth applicant

The Will & All for the first and third respondents

In November 2018, the first (Barry King), second (Wendy O’Brien) and third (Andrew King) applicants were appointed as the litigation guardians for Ila Elizabeth King. Ila King has applied for an order to have them removed and, in the alternative, that Mr Habib Mellick Jr. be appointed to replace them.
Persons involved
It will assist if I briefly describe the main participants and their relationships to each other:
Ila King is 85 years old and lives in a nursing home in Cairns. Her…

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.

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Details

Case: [2019] QSC 217
Decision Date: 9 September 2019

CaseChat Overview and Summary

In the Supreme Court of Queensland, King v Fister was a case where three applicants, who were appointed as litigation guardians for their mother, sought to have themselves removed and replaced by their mother's solicitor as litigation guardian. The mother, Mrs King, who resides in Cairns, sought this change due to her dissatisfaction with the applicants as her litigation guardians. There was no dispute that Mrs King required a litigation guardian. The applicants opposed the transfer of the proceedings to Cairns, citing inconvenience as their primary reason. They argued that the proceedings should remain in Brisbane where they reside, or at the very least, should be transferred to another city within Queensland.

The court had to decide whether the applicants should be removed as litigation guardians and replaced by Mrs King's solicitor, and whether the proceedings should be transferred to Cairns. The court considered the balance of convenience, the residence of the parties, and the place where the cause of action arose. The applicants had previously resided in Victoria, but their opposition to the transfer had weakened with their proposed removal as litigation guardians. The court noted that the substantive proceedings had already been ongoing for some time in Brisbane, but found that the matter was essentially associated with Cairns due to the residence of Mrs King and the first respondent.

The court ultimately decided that the proceedings should be transferred to Cairns, finding that it was more suitable for the matter to be determined in the Supreme Court at Cairns. The court considered the balance of convenience and the interests of all parties, and determined that the matter should be conducted in Cairns to ensure the most efficient administration of the court and the ends of justice in the determination of the issues between the parties.

The court will hear the parties as to the appropriate form of order to reflect these reasons.

Orders

Orders of the court

I will hear the parties as to the appropriate form of order to reflect these reasons.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

In National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor[3] the Full Court of the Federal Court of Australia considered the cognate provision in the Federal Court Rules and said:[4]“The factors which the Court is entitled to take into account in considering whether one city is more appropriate than another for interlocutory hearings or for the trial itself are numerous. The Court must weigh those factors in each case. Residence of parties and of witnesses, expense to parties, the place where the cause of action arose and the convenience of the Court itself are some of the factors that may be relevant in particular circumstances. The balance of convenience will generally be a relevant consideration, but not necessarily determinative of each case. A party commences a proceeding by filing an application in a particular registry of the Court. If that party or another party wishes to have the proceeding conducted or continued in another place he may apply to the Court for an order under s 48 or O 10, r 1(2)(f) or O 30, r 6 as the case may be. There is no onus of proof in the strict sense to be discharged by the party seeking to conduct or continue the proceedings elsewhere. It should be noted that the Court may exercise its powers under O 30, r 6 either on the application of a party or of its own motion. The Court must, however, be satisfied, after considering all relevant matters, that there is sound reason to direct that the proceeding be conducted or continued elsewhere. Its starting point is that the proceeding has been commenced at a particular place. Why should it be changed? On the one hand, if the party who commenced the proceeding chose that place capriciously the Court would be justified in giving no weight to the choice of place. At the other end of the scale, a proceeding may have continued for some time at the place of commencement with many steps having been taken there, for example, filing of pleadings and affidavits, discovery and inspection. Due weight would be given by the Court to such matters before directing that the proceeding should continue at a different place. The balance of convenience is important, but its weight must vary from case to case. Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely.”[5] (emphasis added)[3] (1988) 19 FCR 155.[4] At 162.[5] Referred to with approval by Crow J in Manasse v Shine Lawyers Pty Ltd [2019] QSC 123. The three applicants opposed the transfer but, with their removal, the balance of convenience has tilted. They submitted that it would be inconvenient for them if the matter were to be transferred to Cairns. The first and second applicants permanently reside in Victoria and, while Andrew King resides in Cairns, he spends most of his time in Victoria. Their position would have been of greater weight had they remained as litigation guardians. Mrs King lives in Cairns. The first respondent and her partner live in Cairns. The litigation guardian who will be appointed for Mrs King will, I expect, live in Cairns. Notwithstanding that the substantive proceedings were commenced in July 2018 and that there have been a number of interlocutory steps taken, the matter is essentially one which is associated in a majority of respects with Cairns. It is, in all respects, more suitable for the matter to be determined in the Supreme Court at Cairns.Orders

CITATION:	King & Ors v Fister & Anor [2019] QSC 217
PARTIES:	BARRY DAVID KING (first applicant) WENDY HELEN O’BRIEN (second applicant) ANDREW ROBERT KING (third applicant) BARRY DAVID KING, WENDY HELEN O’BRIEN AND ANDREW ROBERT KING AS LITIGATION GUARDIANS FOR ILA ELIZABETH KING (fourth applicant) v KAREN AMANDA FISTER (first respondent) CHRISTOPHER ROBERT HALL (third respondent)
FILE NO:	BS No 7936 of 2018
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	9 September 2019
DELIVERED AT:	Brisbane
HEARING DATE:	29 May 2019
JUDGE:	Martin J
ORDER:	I will hear the parties as to the appropriate form of order to reflect these reasons.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – LEGAL REPRESENTATION – CHANGE OF LEGAL REPRESENTATION – where the first, second and third applicants were appointed as litigation guardians for their mother – where their mother now seeks to have them removed and, in their place, her solicitor be appointed – where there is no dispute among the parties that she requires a litigation guardian – whether the litigation guardians should be removed – whether the mother’s solicitor should be appointed in their place PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – TIME AND PLACE – where the first, second and third applicants were appointed as litigation guardians for their mother – where their mother now seeks to have them removed and, in their place, her solicitor be appointed – where two of the applicants permanently reside in Victoria and the third spends most of his time in Victoria – where the mother and the respondents reside in Cairns – whether the proceedings ought to be transferred to the Supreme Court in Cairns Power of Attorney Act 1998, s 116 Uniform Civil Procedure Rules 1999, r 39, r 93, 94, 95(2) Berman v Schwartz [2012] ONSC 6851, cited Legal Services Commissioner v Mellick [2012] QCAT 333, cited Legal Services Commissioner v Mellick [2016] QCAT 155, cited Manasse v Shine Lawyers Pty Ltd [2019] QSC 123, cited National Mutual Holdings Pty Ltd & Ors v The Sentry Corporation & Anor (1988) 19 FCR 155, applied
COUNSEL:	H Mellick as solicitor for Ila Elizabeth King M De Waard for the fourth applicant L Nevison for the first and third respondents
SOLICITORS:	Mellick Smith & Associates for Ila Elizabeth King Gadens Lawyers for the fourth applicant The Will & All for the first and third respondents