Simon v Nursing Staff Pty Ltd

[1997] QCA 11

COURT OF APPEAL

[1997] QCA 011

DAVIES JA
McPHERSON JA

FRYBERG J

Appeal No 1 of 1995

AYSE IMREN SIMON	Appellant
and
NURSING STAFF PTY LTD	First Respondent
and
NCA (ANNERLEY) PTY LTD	Second Respondent

BRISBANE
..DATE 10/02/97
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McPHERSON JA: The Court adjourned to consider this matter.

It is an application by the respondent to an appeal, who was the defendant in the Court below, to strike out an appeal lodged on behalf of a party who was the plaintiff in the Court below. Her name is Ayse Imren Simon. The appeal is brought, or purports to be brought from a judgment in the Supreme Court in which that plaintiff was awarded damages, but in respect of which an appeal has been pursued evidently on the ground that the damages were not considered to be large enough.

The matter has been before the Court on a previous occasion or occasions, and orders were made directing that certain procedural steps be taken in accordance with the practice of the Court in order to ensure that the matter would be in a condition in which it can be properly considered on an appeal. There may be a dispute as to whether those conditions have been complied with. So far as I can see, however, in one or more respects they have not been. The applicant defendant's case for having their appeal struck out is therefore not without a certain degree of justification.

However, in the course of the discussion before us, it has become apparent that there is a real doubt about the authority claimed by those who affect to act for the plaintiff in this appeal. In particular, I should say there appears to have been authority in a Mr Carl Von Schulz to appear and make submissions on behalf of the plaintiff in the Court below, and it may be that he also had authority to 100297 T21/HMH26 M/T COA12/97

pursue an appeal on her behalf.

Without going in detail at present to the terms of the documents from which that authority is said to derive, I wish to come to the point which has greatly troubled the Court. It is that in the course of submissions to us Mr Von Schulz has explained to us that the plaintiff is no longer in Australia. She is now in Turkey, and she is in a mentally disturbed state. This has led us to wonder whether, even if he originally had authority on behalf of the plaintiff to lodge and maintain the appeal on her behalf, he still has such authority. The law on these questions is, to say the least, somewhat peculiar. It is possible for a person's authority, when he or she is acting for another, to come to an end without that person's knowing that the authority has been terminated, for example, in the case of sudden insanity.

When regard is had to the fact that, if indeed there is in Mr Von Schulz no authority to institute this appeal or, more especially now, to carry it on, and to the fact that, legally speaking, if he has no such authority then the result will be that the plaintiff cannot be made liable for the costs of the defendant applicant in and about this appeal, it seems to me that we must take steps in relation to it to ensure that matters are put in a condition in which we can be satisfied that the case is one which is properly before us on behalf of the plaintiff. In that regard I refer to Order 80 rule 7 which provides as follows:

"Where, after any cause or matter has begun, a party to the cause or matter becomes a mentally ill person, his

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solicitor shall forthwith notify all other parties to the cause or matter and an application shall be made for the appointment of a person to be the next friend or guardian ad litem of that party."

The rule specifically contemplates the case of a mentally ill person who has a solicitor, but I am in no doubt at all that, on a proper interpretation of the practice of the Court, the same principle does or ought to apply to circumstances in which the party in question has been permitted to act otherwise than by solicitor.

In these circumstances, it seems to me that the proper course that should be taken now is that the proceedings in this appeal should be stayed until application has been made in accordance with Order 80 rule 7 for the appointment of some person, whether Mr Von Schulz or another, as next friend or guardian ad litem of the plaintiff Ayse Imren Simon in this action. It seems to me that, having regard to the rather unusual circumstances that have arisen in this case, the proper consideration of the question whether the plaintiff is still in a position to give proper instructions ought most conveniently to be left to a single Judge of this Court, rather than to have it considered by all three of us together on some occasion when it may be difficult to reassemble the Court as presently constituted.

My conclusion therefore is, as I have said, that the proceedings should be stayed until an application is made and determined for the appointment of a guardian or next friend pursuant to Order 80 rule 7, or until further order.

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DAVIES JA: I agree.

FRYBERG J: I also agree, although I would prefer to see the form of the order simply that the matter should be stayed until further order. I would add that it does not seem to me to matter a great deal whether Order 80 rule 7 is interpreted to apply only when a solicitor is acting or more generally, since the inherent jurisdiction of the Court would be sufficient to enable cognate application to be made in the case where there was no solicitor even if the more restricted interpretation is applied.

McPHERSON JA: I may add, with respect to what was said by my brother, that I was under the impression that I said "until an application is made or until further order, the proceedings should be stayed." If that is not what I said, I certainly intend that that should be the order and I will make it accordingly. The order is as I have stated it to be; that is to say, that the proceedings on the motion by way of appeal are stayed until further order or until application is made and determined for the appointment of a guardian ad litem or a next friend, pursuant to Order 80 rule 7 of the Rules of the Supreme Court. And to make the point again, such an application ought, in the view of this Court, to be brought before a single Judge of the Supreme Court and need not be brought before this Court of Appeal.

Now, all the costs on this application ought, in our view,

to be reserved.

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MR HANSON: We are content with that, Your Honour.

McPHERSON JA: Mr Hanson, I am not sure what will happen as a result of this but I appreciate that in the end it may not help you a great deal if nothing happens. You will have to apply to strike it out, but I do not think that we are in a position to act on his representation as if it were valid by acceding to the order you seek, because it may not be an effective order if the lady is not in a mental position to continue her instructions.

MR HANSON: Yes, Your Honour.

McPHERSON JA: Very well.

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