Re Byrt (As Litigation Guardian For Eunice Daphne Washington) - [2021] SASC 133

Supreme Court of South Australia

(Civil)

RE BYRT (AS LITIGATION GUARDIAN FOR EUNICE DAPHNE WASHINGTON)

[2021] SASC 133

Judgment of the Honourable Justice Blue

19 November 2021

HEALTH LAW - MENTAL HEALTH GENERALLY - GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY - CONDUCTING LEGAL PROCEEDINGS - LITIGATION GUARDIANS AND NEXT FRIENDS

Reasons for judgment for making an order that the applicant Edward Byrt is advised that he would be justified in continuing the prosecution of Supreme Court of South Australia actions 969 of 2017 and 1070 of 2019.
Mr Byrt is the litigation guardian for Eunice Washington in an action in this Court instituted in 2017 against her daughter Julie Washington (action 969 of 2017). Mr Byrt as litigation guardian for Eunice Washington instituted a second action in this Court in 2019 against Julie Washington and the certain companies (action 1070 of 2019).
In March 2021 the parties attended a mediation, which did not resolve the disputes the subject of the substantive proceedings or other matters. On 5 March 2021 Julie Washington made a without prejudice offer which remains open.
In April 2021 Mr Byrt instituted this action seeking advice and directions with respect to his conduct of the substantive proceedings.
Held:
1 The Court has inherent jurisdiction to give advice and directions to its officers; a litigation guardian is such an officer; and the Court has inherent jurisdiction to give advice and directions to a litigation guardian (at [61]).
2 Particularly taking into account the wishes of Eunice Washington and the funding obtained for the prosecution of the substantive actions, Mr Byrt is advised that he would be justified in continuing the prosecution of the substantive actions (at [89]).

Aged and Infirm Persons’ Property Act 1940 (SA); Inheritance (Family Provision) Act 1972 (SA); Civil Procedure Act 2005 (NSW) s 80, referred to.
Application of Peter Hodges [2021] NSWSC 55; Australian Securities and Investments Commission v Commercial Nominees of Australia Ltd [2002] NSWSC 576; Glazier Holdings Pty Ltd v Australian Men’s Health Pty Ltd (Supreme Court of New South Wales, Young J, 30 April 1998); Jeavons v Chapman (No 2) [2009] SASC 3, considered.

RE BYRT (AS LITIGATION GUARDIAN FOR EUNICE DAPHNE WASHINGTON)

[2021] SASC 133

BLUE J: On 3 September 2021 I made an order that the applicant is advised that he would be justified in continuing the prosecution of Supreme Court of South Australia actions SCCIV-17-969 (the 2017 action) and SCCIV-19-1070 (the 2019 action) and indicated that I would subsequently give reasons. These are my reasons.

Background

The facts set out below are based on the evidence adduced before me in this action, including what appears to be common ground on the face of the pleadings in the 2017 action and the 2019 action (collectively the substantive proceedings). It is possible that some of these facts will be in dispute in the substantive proceedings and obviously the facts relevant to them will be determined on the evidence adduced in…

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: [2021] SASC 133
Decision Date: 19 November 2021

CaseChat Overview and Summary

In the matter of Re Byrt (As Litigation Guardian For Eunice Daphne Washington), the South Australian Supreme Court was called upon to provide guidance to Edward Byrt, who serves as the litigation guardian for Eunice Washington. The proceedings stem from two actions filed by Mr Byrt against Eunice Washington's daughter, Julie Washington, and certain companies, with the first action initiated in 2017 and the second in 2019. Despite a mediation attempt in March 2021 that did not resolve the disputes, and a without prejudice offer from Julie Washington on 5 March 2021, the litigation has continued. Mr Byrt sought advice from the court regarding the appropriate course of action for the ongoing litigation.

The central legal issue before the court was whether it had the inherent jurisdiction to advise and direct Mr Byrt, as a litigation guardian, on the conduct of the substantive proceedings. The court confirmed that it indeed has such jurisdiction, as it extends to giving advice and directions to its officers, with a litigation guardian falling within this category. The court also considered the wishes of Eunice Washington and the funding secured for the litigation in determining whether Mr Byrt should proceed with the actions.

In reaching its decision, the court acknowledged the importance of considering Eunice Washington's wishes and the funding available for the litigation. It concluded that Mr Byrt would be justified in continuing the prosecution of the substantive actions, as per the advice sought. The court's decision was based on the inherent jurisdiction it possesses to provide guidance to its officers, including litigation guardians, in the conduct of legal proceedings.

The court's final order was to advise Mr Byrt that he would be justified in continuing the prosecution of the substantive actions in light of the considerations outlined in the judgment.

Orders

Orders of the court

Reasons for judgment for making an order that the applicant Edward Byrt is advised that he would be justified in continuing the prosecution of Supreme Court of South Australia actions 969 of 2017 and 1070 of 2019.

Mr Byrt is the litigation guardian for Eunice Washington in an action in this Court instituted in 2017 against her daughter Julie Washington (action 969 of 2017). Mr Byrt as litigation guardian for Eunice Washington instituted a second action in this Court in 2019 against Julie Washington and the certain companies (action 1070 of 2019).

In March 2021 the parties attended a mediation, which did not resolve the disputes the subject of the substantive proceedings or other matters. On 5 March 2021 Julie Washington made a without prejudice offer which remains open.

In April 2021 Mr Byrt instituted this action seeking advice and directions with respect to his conduct of the substantive proceedings.

Held:

1 The Court has inherent jurisdiction to give advice and directions to its officers; a litigation guardian is such an officer; and the Court has inherent jurisdiction to give advice and directions to a litigation guardian (at [61]).

2 Particularly taking into account the wishes of Eunice Washington and the funding obtained for the prosecution of the substantive actions, Mr Byrt is advised that he would be justified in continuing the prosecution of the substantive actions (at [89]).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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