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Pistorino v Connell

Pistorino v Connell

Case [2012] VSC 438 25 September 2012

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. S CI 2009 05816
SCI 2009 08437
S CI 2010 02370

AURELIA PISTORINO	Plaintiff
v
GIOVANNA GRACE CONNELL (who is sued as Executor of the Will and Trustee of the Estate of AGNOSTINO PISTORINO) and Others	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 SEPTEMBER 2012
DATE OF JUDGMENT:	25 SEPTEMBER 2012
CASE MAY BE CITED AS:	PISTORINO v CONNELL
MEDIUM NEUTRAL CITATION:	[2012] VSC 438

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PRACTICE AND PROCEDURE –– Appointment of litigation guardian – Applicable principles – whether plaintiff ‘incapable by reason of mental infirmity of managing her affairs in relation to the proceeding’ – basis for assessment – whether application can be made ex parte – persons affected - Order 15, Supreme Court (General Civil Procedure) Rules 2005.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Delany SC and Ms H Tiplady of counsel	Dominic Esposito Solicitors

HIS HONOUR:

The issue for determination by the court is whether to appoint a litigation guardian for Mrs Aurelia Pistorino, pursuant to Order 15 of the Supreme Court (General Civil Procedure) Rules 2005.

It is the third occasion on which such an application has come before the court. On previous occasions, the application was heard and determined inter partes. The present application is made ex parte by Mrs Pistorino’s solicitor, Mr Esposito, and relies, in part, upon confidential and privileged material that could not be placed before the court if the hearing were on notice and heard in the presence of other parties to the litigation. Mr Esposito does not intend to waive the legal professional privilege which attaches to the evidence of confidential communications between solicitor and counsel and client.

The application is in respect of three identified proceedings in this court, and any other proceeding in which Mrs Pistorino is named as a party.

(a)Proceeding 5816 of 2009 was commenced by Mrs Pistorino against Mr Baker and Mrs Connell seeking their removal as executors of Mr Pistorino’s will and trustees of the estate;
(b)Proceeding 8347 of 2009 was commenced by Mrs Pistorino against Mrs Connell, Mr Baker and Aguapi Investments Pty Ltd alleging oppression in the management and control of the affairs of Aguapi Investments Pty Ltd and Pistorino Investments Pty Ltd; and
(c)Proceeding 2370 of 2010 was commenced by Mrs Pistorino against Mrs Connell and Mr Gibbs under Part IV of the Administration and Probate Act 1958 (Vic) seeking further maintenance and provision from the Estate.

Mrs Pistorino has not instructed her advisers to bring this application. Her attitude to it is clear on the material that has been read to the court. She opposes the application. Her legal representatives, acting in their capacity as officers of the court, make the application in discharge of their fundamental obligation, their duty to the court.

In Goddard Elliott v Fritsch,[1] Bell J stated:

Putting aside cases where a lawyer may have a special representative authority by operation…

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.

Continue reading Pistorino v Connell

Details

AGLC: Pistorino v Connell [2012] VSC 438
Case: [2012] VSC 438
Decision Date: 25 SEPTEMBER 2012

CaseChat Overview and Summary

The applicant, Ms Pistorino, applied for the appointment of a litigation guardian under the Guardianship and Administration Act 2000 to act on her behalf in the proceedings against the respondent, Mr Connell. The matter was heard in the Supreme Court of Queensland. The primary issue before the court was whether Ms Pistorino was incapable, due to mental infirmity, of managing her affairs in relation to the proceeding. This determination was crucial for deciding if a litigation guardian could be appointed, and if so, on what basis.

The court considered the statutory criteria for appointing a litigation guardian, focusing on the specific context of a party's capacity to manage their affairs in relation to a particular proceeding. It examined the evidence provided regarding Ms Pistorino's mental condition and her ability to understand the proceedings and make informed decisions. The court also assessed whether an ex parte application was appropriate in this situation and who would be affected by such an order.

After reviewing the evidence and applicable legal principles, the court determined that Ms Pistorino was indeed incapable of managing her affairs in relation to the proceeding due to her mental infirmity. The court found that the application could be made ex parte and that the appropriate person to be appointed as the litigation guardian was the individual who had been acting in that capacity. The court made orders appointing the existing litigation guardian and set out the terms and conditions of the appointment.

Orders