Krnjic v Bunnings Group Ltd (No.2) - [2018] FCCA 1609

FEDERAL CIRCUIT COURT OF AUSTRALIA

KRNJIC v BUNNINGS GROUP LTD (No.2)

[2018] FCCA 1609

Catchwords:
HUMAN RIGHTS – Disability discrimination – respondent seeking orders to stay proceeding pending appointment of litigation guardian – no application for such appointment.

DISCRIMINATION – Applicant alleged by respondent to suffer from mental incapacity – inadequacy of medical evidence.

LITIGATION GUARDIAN – Application by respondent for appointment of litigation guardian to applicant – no formal application made by application in a case – application made ore tenus – application reliant on note from applicant’s solicitor and letter from consultant psychiatrist – no medically and legally supportable psychiatric evaluation – no detailed evidence of applicant’s mental state – letter not adequate to support legal contentions that respondent urged – letter failed to dissect the elements recorded in rule 11.08 of the Federal Circuit Court Rules – respondent application premature and disproportionate – application dismissed – extensive review of authorities.

Legislation:

Guardianship and Administration Act 1995 (Tas), s.25
Mental Health Act 1959 (UK)
County Court Civil Procedure Rules 2008 (Vic), O.15.02(1)
District Court Civil Rules 2006 (SA), rr.78, 79
Federal Circuit Court Rules 2001 (Cth), r.11.12
Federal Court Rules 2011 (Cth), r.1.05, div.9.6
Rules of the Supreme Court 1971 (WA)
Supreme Court (General Civil Procedure) Rules 2015 (Vic), O.15, 15.02(1)
Supreme Court Civil Rules 2006 (SA), rr.78(3), 79
Supreme Court Rules 2000 (Tas), r.295
Uniform Civil Procedure Rules 1999 (Qld), ch.3, pt.4
Uniform Civil Procedure Rules 2005 (NSW), rr.7.13, 7.15
Victorian Civil and Administrative Tribunal Rules 2008 (Vic), O.4.02

Cases cited:

Ahmet v Jardine [2014] VSCA 52
AJI Services Pty Ltd v Manufacturers’ Mutual Insurance Ltd [2005] NSWSC 709
Angliss v Urquhart [2002] NSWCA 256
Attorney-General v Parnther (1792) 29 ER 632
Ball v Mannin (1829) 6 E.R. 568
Banks v Goodfellow (1870) LR 5 QB 549
Bridgewater v Leahy (1998) 194 CLR 457
Commissioner of Police v Tanos (1958) 98 CLR 383
Dasreef Pty Limited v Hawchar (2011) 243 CLR 588
Durham v Durham (1885) 10 PD 80
Gibbons v Wright (1954) 91 CLR 423
Harwood v Baker (1840) 3 Moo PC 282, PC
In re Beaney, decd [1978] 1 WLR 770
In reC (Adult: Refusal of Treatment) [1994] 1 WLR 290
In reF (Mental Patient: Sterilisation) [1989] 2 WLR 1025
In re MB (Medical Treatment) [1997] 2 FLR 426, CA
Kirby v Leather [1965] 2 QB 367
Kowalski v Bourne [2011] FCA 269
Krnjic v Bunnings Group Ltd (No.1) [2018] FCCA 813
L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114
Mackedie v The Public Trustee & Ors [1996] QCA 253
Masterman-Lister v Brutton & Co [2003] 1 WLR 1511
Murphy v Doman (2003) 58 NSWLR 51
R v M’Naghten (1843) 8 ER 718

Applicant:

JOHN KRNJIC

Respondent:

BUNNINGS GROUP LTD

(ACN 008 672 179)

File Number:

MLG 1004 of 2017

Judgment of:

His Honour Judge Wilson

Hearing date:

5 April 2018

Date of Last Submission:

5 April 2018

Delivered at:

Melbourne

Delivered on:

18 June 2018

REPRESENTATION

Solicitors…

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: [2018] FCCA 1609
Decision Date: 18 June 2018

CaseChat Overview and Summary

The applicant, Krnjic, brought proceedings against the respondent, Bunnings Group Ltd. Bunnings sought orders to stay the proceeding pending the appointment of a litigation guardian for Krnjic, alleging Krnjic suffered from mental incapacity. The Federal Circuit Court of Australia heard the application.

The central legal issue before the Court was whether to grant Bunnings' application for a stay of proceedings to allow for the appointment of a litigation guardian for Krnjic, given the alleged mental incapacity of the applicant. This required the Court to consider the adequacy of the evidence presented by Bunnings to support its contention of Krnjic's incapacity and the necessity of appointing a guardian.

His Honour Judge Wilson dismissed Bunnings' application, finding it premature and disproportionate. The Court noted that no formal application for the appointment of a litigation guardian had been made by Krnjic. The application by Bunnings was made *ore tenus* and relied on a note from Krnjic's solicitor and a letter from a consultant psychiatrist. The Court found this material insufficient to support the legal contentions advanced by Bunnings, as it lacked a medically and legally supportable psychiatric evaluation and detailed evidence of Krnjic's mental state. The psychiatrist's letter, in particular, failed to dissect the elements required by rule 11.08 of the Federal Circuit Court Rules concerning the appointment of a litigation guardian. The Court conducted an extensive review of relevant authorities in reaching its decision.

Orders