Plumley v Moroney - [2014] QSC 3

SUPREME COURT OF QUEENSLAND

CITATION:

Plumley v Moroney & Ors [2014] QSC 3

PARTIES:

CORALIE ANNE PLUMLEY

(plaintiff)

v

PATRICK JOHN MORONEY

(first defendant)

AND

KATHRYN LOUISE HUNT

(second defendant)

AND

AAI LIMITED ABN 48 005 297 807

(third defendant)

FILE NO/S:

9802 of 2012

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

31 January 2014

DELIVERED AT:

Brisbane

HEARING DATE:

13 November 2013

JUDGE:

Margaret Wilson J

ORDERS:

(i)         that the plaintiff have leave to proceed;

(ii)       that the proceeding be continued on behalf of the plaintiff by Gwen Dawn Plumley as her litigation guardian;

(iii)      that the plaintiff provide the defendants with a list of the topics on which she proposes to give evidence at trial and summaries of her evidence on those topics on or before 24 February 2014;

(iv)       that the application for directions for the further conduct of the proceeding be otherwise adjourned to a date to be fixed;

(v)        that the proceeding be placed on the Supervised Case List;

(vi)       that the solicitors for the plaintiff approach the Supervised Case List Manager to obtain a date for review before a Supervised Case List Judge as soon as is convenient to the Court after 24 February 2014;

(vii)     that the solicitors for the plaintiff inform the solicitors for the defendants of the date for review;

(viii)    that the costs of and incidental to this application be reserved.

CATCHWORDS:

MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where the plaintiff claimed damages for personal injuries, including psychiatric injuries, sustained in two rear end motor vehicle collisions – where the plaintiff’s psychiatric condition had deteriorated since she made her claim – where the plaintiff sought leave to proceed and the appointment of a litigation guardian under rr 72 and 95(2) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) – where the defendants took no position on either issue – whether the plaintiff was ‘a person with impaired capacity’ for the purposes of UCPR r 72 – whether a litigation guardian should be appointed under UCPR r 95(2)

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – EVIDENCE – where the plaintiff sought a direction that her evidence in chief at the trial be given by affidavit pursuant to UCPR r 367(3)(d) – where, in relation to the first accident, both liability and quantum were in issue, and in relation to the second accident, only quantum was in issue – where the plaintiff’s credit was in issue – where the psychiatric evidence of the impact of giving evidence upon plaintiff’s mental state did not distinguish between the plaintiff giving her evidence in chief orally and the effects of her being subject to cross-examination – whether the direction should be made

Evidence Act 1977 (Qld) s 92
Statutory Instruments Act 1992 (Qld) s 37
Supreme Court of Queensland Act 1991 (Qld) sch 5
Uniform Civil Procedure…

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 Plumley v Moroney

Details

AGLC: Plumley v Moroney [2014] QSC 3
Case: [2014] QSC 3
Decision Date: 31 January 2014

CaseChat Overview and Summary

The case of Plumley v Moroney was heard in the Supreme Court of Queensland and involved the plaintiff, Gwen Dawn Plumley, seeking damages for personal injuries sustained in two rear-end motor vehicle collisions. The plaintiff's psychiatric condition had deteriorated since the claim was made, leading to issues regarding her capacity to proceed with the litigation. The defendants did not take a position on the plaintiff's request for leave to proceed or the appointment of a litigation guardian. The primary legal issues before the court were whether the plaintiff qualified as 'a person with impaired capacity' for the purposes of UCPR rule 72, and whether a litigation guardian should be appointed under UCPR rule 95(2).

The court found that the plaintiff's psychiatric condition significantly impaired her capacity to manage her legal affairs, thus qualifying her as 'a person with impaired capacity' under UCPR rule 72. Consequently, the court granted leave for the plaintiff to proceed with the litigation and appointed Gwen Dawn Plumley as her litigation guardian, as provided under UCPR rule 95(2). This decision was made to ensure that the plaintiff's interests were properly represented in the proceedings. The court also directed the plaintiff to provide the defendants with a list of topics and summaries of her evidence on or before 24 February 2014, and adjourned the application for directions for the further conduct of the proceeding. The proceeding was placed on the Supervised Case List, and the plaintiff's solicitors were instructed to coordinate a review date with the Supervised Case List Manager.

In summary, the court granted the plaintiff leave to proceed with her claim and appointed a litigation guardian to represent her interests. The court further directed the provision of evidence summaries and placed the proceeding on a supervised list to ensure appropriate management of the case. The costs of the application were reserved.

Orders

Orders of the court

(i) that the plaintiff have leave to proceed;

(ii) that the proceeding be continued on behalf of the plaintiff by Gwen Dawn Plumley as her litigation guardian;

(iii) that the plaintiff provide the defendants with a list of the topics on which she proposes to give evidence at trial and summaries of her evidence on those topics on or before 24 February 2014;

(iv) that the application for directions for the further conduct of the proceeding be otherwise adjourned to a date to be fixed;

(v) that the proceeding be placed on the Supervised Case List;

(vi) that the solicitors for the plaintiff approach the Supervised Case List Manager to obtain a date for review before a Supervised Case List Judge as soon as is convenient to the Court after 24 February 2014;

(vii) that the solicitors for the plaintiff inform the solicitors for the defendants of the date for review;

(viii) that the costs of and incidental to this application be reserved.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Plumley v Moroney & Ors [2014] QSC 3
PARTIES:	CORALIE ANNE PLUMLEY (plaintiff) v PATRICK JOHN MORONEY (first defendant) AND KATHRYN LOUISE HUNT (second defendant) AND AAI LIMITED ABN 48 005 297 807 (third defendant)
FILE NO/S:	9802 of 2012
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	31 January 2014
DELIVERED AT:	Brisbane
HEARING DATE:	13 November 2013
JUDGE:	Margaret Wilson J
ORDERS:	(i) that the plaintiff have leave to proceed; (ii) that the proceeding be continued on behalf of the plaintiff by Gwen Dawn Plumley as her litigation guardian; (iii) that the plaintiff provide the defendants with a list of the topics on which she proposes to give evidence at trial and summaries of her evidence on those topics on or before 24 February 2014; (iv) that the application for directions for the further conduct of the proceeding be otherwise adjourned to a date to be fixed; (v) that the proceeding be placed on the Supervised Case List; (vi) that the solicitors for the plaintiff approach the Supervised Case List Manager to obtain a date for review before a Supervised Case List Judge as soon as is convenient to the Court after 24 February 2014; (vii) that the solicitors for the plaintiff inform the solicitors for the defendants of the date for review; (viii) that the costs of and incidental to this application be reserved.
CATCHWORDS:	MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where the plaintiff claimed damages for personal injuries, including psychiatric injuries, sustained in two rear end motor vehicle collisions – where the plaintiff’s psychiatric condition had deteriorated since she made her claim – where the plaintiff sought leave to proceed and the appointment of a litigation guardian under rr 72 and 95(2) of the Uniform Civil Procedure Rules 1999 (Qld) (‘UCPR’) – where the defendants took no position on either issue – whether the plaintiff was ‘a person with impaired capacity’ for the purposes of UCPR r 72 – whether a litigation guardian should be appointed under UCPR r 95(2) PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – EVIDENCE – where the plaintiff sought a direction that her evidence in chief at the trial be given by affidavit pursuant to UCPR r 367(3)(d) – where, in relation to the first accident, both liability and quantum were in issue, and in relation to the second accident, only quantum was in issue – where the plaintiff’s credit was in issue – where the psychiatric evidence of the impact of giving evidence upon plaintiff’s mental state did not distinguish between the plaintiff giving her evidence in chief orally and the effects of her being subject to cross-examination – whether the direction should be made Evidence Act 1977 (Qld) s 92 Statutory Instruments Act 1992 (Qld) s 37 Supreme Court of Queensland Act 1991 (Qld) sch 5 Uniform Civil Procedure…