Reeves v Australian Capital Territory
[2022] ACTSC 141
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Reeves v Australian Capital Territory |
Citation: | [2022] ACTSC 141 |
Hearing Date: | 10 June 2022 |
DecisionDate: | 10 June 2022 |
Before: | McCallum CJ |
Decision: | 1) Pursuant to r 280 of the Court Procedures Rules 2006 (ACT), that the plaintiff be granted leave to appoint Mr Scott Reeves as her litigation guardian; 2) Pursuant to r 502 of the Court Procedures Rules 2006 (ACT), that the plaintiff is granted leave to amend the originating process consistent with the draft originating process marked “LJC 4” in the affidavit of Liam James Casey dated 25 May 2022. 3) That the costs of the application be costs in the cause. |
Catchwords: | PROCEDURE — MISCELLANEOUS PROCEDURAL MATTERS — Application to appoint litigation guardian and amend originating process — Whether plaintiff is a person with a legal disability — Where legal disability includes mental disability — Where parties consent to appointment of litigation guardian |
Legislation Cited: | Court Procedures Rules 2006 (ACT), rr 280, 501 |
Parties: | Naomi Reeves (Plaintiff) Australian Capital Territory (Defendant) |
Representation: | Counsel L Casey (Plaintiff) L Casey (Mention for Defendant) |
| Solicitors Slater and Gordon Lawyers (Plaintiff) ACT Government Solicitor (Defendant) | |
File Number: | SC 336 of 2021 |
McCALLUM CJ:
Before the Court is an application filed 27 May 2022 by the plaintiff, Naomi Reeves, seeking an order pursuant to r 280 of the Court Procedures Rules 2006 (ACT) that she be granted leave to appoint Mr Scott Reeves as her litigation guardian and an order pursuant to r 501 of the Rules granting leave to the plaintiff to amend the originating process accordingly.
The application is supported by the affidavit of the plaintiff’s solicitor, Mr Liam Casey, sworn 25 May 2022. The affidavit annexes a number of medical reports, most importantly includes the report of a neuropsychologist Ms Amanda White.
The proceedings are for medical negligence arising out of a procedure as a result of which, so it is alleged, the plaintiff suffered overt hepatic encephalopathy. The lay description of that condition is swelling of the brain. It is alleged that the plaintiff suffers residual cognitive issues as a result of that condition including impairment of attention, concentration, and short and long-term memory. That allegation may be in dispute in the substantive proceedings - I do not know - but for present purposes, the report of Ms White addressing that issue provides a basis for the Court to be satisfied, in my view, that the plaintiff is a person with a legal disability within the meaning of r 280.
The term, “Person with a legal disability”, is defined to include a person with a mental disability. That term in turn is defined to mean a person who is not legally competent to be a party to the proceeding. The question of legal competence may be taken to comprehend the capacity to understand advice and to give instructions. In addition to the report of Ms White, to which I will return, I note that Mr Casey, who has been acting for the plaintiff in the proceedings, has informed the Court that he himself has experienced difficulty in advising and obtaining instructions from her. It is his assessment that she has difficulty understanding his advice and does not feel comfortable giving instructions in the proceedings. When he raised the question of appointing a guardian for her, she embraced it.
Returning to Ms White's report, there is some suggestion in the report of a possibility of “over reporting on psychological symptoms measures and sub-optimal performance on cognitive testing”. However, it is clear enough from the report that at a base level Ms White accepts that there is a measure of impairment to the plaintiff's cognitive functioning as a result of the brain swelling. An example that jumps out from the report is that the plaintiff told Ms White that she, the plaintiff, was easily overwhelmed. For example, when ordering food she would get confused by the menu. She said that she was extremely indecisive, relying on others to make decisions.
Finally, I note that, in an affidavit sworn for a different purpose by Jessica Steele of the Australian Government Solicitor on 26 May 2022, Ms Steele notes that, based on her review of the report of Ms White, she agrees with Mr Casey's approach to engage a litigation guardian and considers it appropriate in the circumstances. I am satisfied that there is a proper basis for concluding that the plaintiff is a person with a legal disability in the relevant sense.
While that is a term which might suggest a strong level of disability, the Court in my view ought be guided as to the extent of a person’s disability particularly by a solicitor working closely with his client who is encountering difficulty giving advice and obtaining instructions based on that advice.
The term “legal disability” might not in that context rise so high as the diagnosis of a mental disability, for example, within the meaning of DSM-5. The interests of justice, in my view, call for the Court to take what might be termed a generous approach in circumstances where the solicitors on both sides are of the view that the proceedings would be assisted by the appointment of a guardian.
The evidence includes the consent of the proposed guardian, Mr Scott Reeves, who is the ex-husband of the plaintiff, to act as guardian. I am satisfied that it is appropriate to make the orders sought. I note that the application asks that the costs of the application be costs in the cause and it appears the defendant consents to that order as well.
Accordingly, I make the following orders:
1) Pursuant to r 280 of the Court Procedures Rules 2006 (ACT), that the plaintiff be granted leave to appoint Mr Scott Reeves as her litigation guardian;
2) Pursuant to r 502 of the Court Procedures Rules 2006 (ACT), that the plaintiff is granted leave to amend the originating process consistent with the draft originating process marked “LJC 4” in the affidavit of Liam James Casey dated 25 May 2022.
3) That the costs of the application be costs in the cause.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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