State of Queensland v. Honess

[2000] QCA 34

[2000] QCA 34

COURT OF APPEAL

McPHERSON JA
WILLIAMS J
WILSON J

Appeal No 10966 of 1999

STATE OF QUEENSLAND  Appellant (Defendant)

v

EDWARD WILLIAM HONESS  Respondent (Plaintiff)

BRISBANE

DATE 21/02/2000

JUDGMENT

McPHERSON JA:  This is an application for leave to appeal against an interlocutory order made in a District Court action for damages for personal injuries against the State of Queensland.  The order in question required the production for inspection of correspondence from the defendant's solicitors to a medical expert who provided an opinion to the defendant after examining the plaintiff.  The question said to justify the grant of leave is whether the District Court Judge in making the order for that production or disclosure of documents had authority to disregard the legal professional privilege which would presumably otherwise have attached to the correspondence.

The action arises out of a surgical operation which the plaintiff underwent in a State-owned hospital.  After it, he suffered an abdominal infection, and it may fairly be inferred that he experienced not inconsiderable pain in doing so.  I mean no disrespect to the plaintiff or his memory when I say that, on all we are told in the material, his recoverable economic loss is not likely to have been substantial.  Regrettably, he has since died in December 1999, and his personal representatives are still considering whether or not to proceed with the action.  It seems rather unlikely that they will.

In these circumstances, the application for leave to appeal cannot proceed until at least an administrator ad litem or some person performing the functions of that office is appointed.  The solicitors for the plaintiff before the plaintiff's death acknowledge that they have no instructions at present, and have appeared today by counsel only as a matter of courtesy to the Court.  The applicant for leave, which is the defendant State, is eager to have the point resolved by continuing to pursue this application and obtaining an order for leave to appeal, while at the same time promising not to act further in the matter until the personal representative, if any, of the plaintiff decides what course he or she will take with respect to the action.

In my respectful opinion, this Court is not in a position to grant leave for the appeal against the order in the District Court.  If it did so it would be making an order in the absence of a party who might be affected by it.  There are two provisions under which this state of affairs appears to be envisaged in the Rules.  One is UCP Rule 72(2), which provides that if a party to a proceeding dies, the Court may order the trustee or personal representative of that party or someone else, if there is no such representative, to be included or substituted as a party for the original party.

No person willing to occupy that position or perform that function has been suggested to us, and we would not be in a position, I think, to act under that rule without some indication of the name or identity of an individual who was prepared to step into the shoes of the plaintiff in the character either of trustee or personal representative.

In addition to that rule, r.73(2) of the Uniform Civil Procedure Rules provides that the Court, on application by a party or person to whom the benefit of the cause of action passes on death, may order that, unless an order for substitution is made within a specified time, the proceeding be dismissed on a specified basis, including, for example, with costs against a party person or estate connected with the proceeding.  There is plainly no basis, in my view, for taking that step at present, although the question might yet arise in the future.  It would also, in my opinion, be wrong to make such an order without taking the precaution of ensuring that the personal representatives, if any, of the deceased plaintiff are aware that such an order might be made.

In all the circumstances, I see no alternative to that suggested by the Court in the course of submissions in this matter, which is to order that the application for leave to appeal be adjourned to a date to be fixed, and to reserve the costs of and incidental to the application up to this time.

WILLIAMS J:  I agree.

WILSON J:  I agree.

McPHERSON JA:  The order will be as I have stated it; that is to say, the application for leave to appeal is adjourned to a date to be fixed, with costs reserved.