Stevenson v State of Tasmania

[2005] TASSC 33

[2005] TASSC 33

CITATION:              Stevenson v State of Tasmania [2005] TASSC 33

PARTIES:  STEVENSON, Rachael
  v
  STATE OF TASMANIA (The)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  616/2004
DELIVERED ON:  4 May 2005
DELIVERED AT:  Hobart
HEARING DATE:  24 February 2005
JUDGMENT OF:  Evans J

CATCHWORDS:

Mental Health – Legal proceedings by and against mentally ill and other protected persons – Necessity for a litigation guardian – Application for stay of proceedings on the basis of no litigation guardian appointed, refused - Provisions of statute put person under disability as if not under disability when administration order is made – Effect on discovery and interrogatories.

Supreme Court Rules 2000 (Tas), rr292 and 14.
Guardianship and Administration Act 1995 (Tas), s26(2)(l) and (5).
Crockett & Anor v Roberts & Anor (2000) 9 Tas R 312, followed.
Aust Dig Mental Health [16]

REPRESENTATION:

Counsel:
             Plaintiff:  L A Harper
             Defendant:  P Turner
Solicitors:
             Plaintiff:  PWB Lawyers
             Defendant:  Director of Public Prosecutions

Judgment  Number:  [2005] TASSC 33
Number of paragraphs:  13

Serial No 33/2005
File No 616/2004

STEVENSON v STATE OF TASMANIA

REASONS FOR JUDGMENT  EVANS J

4 May 2005

1. The plaintiff sues the defendant for damages for personal injuries alleged to result from negligent hospital and medical treatment she received on about 13 March 1974, the day of her birth.  Contemporaneous with the filing of a conditional appearance to the plaintiff's writ, the defendant has applied for orders that the plaintiff's writ be set aside or stayed, it being irregular, as the plaintiff is a person under a disability and she has no litigation guardian.

1. On 26 September 2003, the Guardianship and Administration Board appointed the Public Trustee as administrator of the estate of the plaintiff for all matters except her pension entitlement.  This order was made pursuant to the Guardianship and Administration Act 1995 ("the Act"), s20(1), which empowers the Board to make such an order if, after a hearing, it is satisfied that the person who is the subject of the order has a disability and by reason thereof is unable to make reasonable judgments in respect of all or any matters in relation to her personal circumstances.

1. It is common ground that the plaintiff is a person under disability for the purposes of the Supreme Court Rules 2000, r5 of which provides that a "person under disability" means:

"… an infant or a person who is incapable of managing and administering his or her affairs in relation to proceedings resulting from any absence, loss or abnormality of mental or psychological function;"

1. Proceedings commenced or maintained by a person under disability without a litigation guardian are not void, they are merely irregular; Crockett & Anor v Roberts & Anor (2000) 9 Tas R 312 [25], Darke v Eltherington [1963] Qd R 375, Mewburn v Mewburn (1934) 51 WN (NSW) 170, Ex parte Brocklebank (1877) 6 Ch D 358.

1. The Supreme Court Rules, r292, provides:

"(1)     A person under disability, by litigation guardian, may –

(a)          sue as a plaintiff; or

(b)          make an application; or

(c)          defend a proceeding.

(2)       A person under disability is not to file a notice of appearance otherwise than by litigation guardian.

(3)       An order for the appointment of a litigation guardian for a person under disability is not necessary.

(4)       Subject to any order of the Court or a judge, a person authorised under the Guardianship and Administration Act 1995 to conduct proceedings in the name, or on behalf, of a represented person, is entitled to be litigation guardian of the person under disability in any proceeding to which the authority extends"

In Crockett (supra) Underwood J, as he then was, explained:

"9        This rule [r292] owes its origin to Chancery practice prior to the enactment of the Judicature Acts. See Daniell's Chancery Practice (8th Edn - 1914) 19 et seq. In the case of a lunatic so found by inquisition, the practice was to commence proceedings, either by the committee of the lunatic or by a next friend. In the case of proceedings commenced by the committee of the lunatic, proper practice required that the lunatic be added as a party to the action. See Fuller v Lance (1663) 1 Ch Cas 18; In re Lord Townshend's Settlement [1908] 1 Ch 201; Theobald, The Law Relating to Lunacy, 278 et seq.

10       In the case of proceedings commenced by a lunatic in the name of his or her next friend, it has been held that the next friend is not a party to the action. See Dyke v Stephens (1885) 30 Ch D 189; Pink v J A Sharwood & Co Limited [1913] 2 Ch 286. The liability of the next friend is to the defendants for the costs of the action and of all motions and proceedings in that action. In Masling v Motor Hiring Company (Manchester) Limited [1919] 2 KB 538 at 541 - 542, Scrutton LJ approved of the following passage taken from Daniell's Chancery Practice (8th Edn) at 100 - 101:

'On account of an infant's supposed want of discretion, and his inability to bind himself and make himself liable to the costs, he is incapable of bringing an action without the assistance of some other person, who may be responsible to the Court for the propriety of the suit in its institution and progress. Such person is called the next friend of the infant; and if an action is commenced on behalf of an infant without a next friend, the defendant may apply to have it dismissed with costs, to be paid by the solicitor, even though the solicitor was unaware of the infancy ... The next friend is liable to the defendants for the costs of the action and all motions and proceedings therein; and if he has been ordered to pay any costs in the action, he will not, in the absence of any reservation in the order directing the payment, be allowed such costs out of the estate.'

11       See also O'Brien v The Herald and Weekly Times Limited [1937] VLR 135; Steeden v Walden [1910] 2 Ch 393; Huxley v Wootton (1912) 29 TLR 132 - an interesting case of a profligate father with a successful son.

12       With respect to the conduct of the proceedings, the next friend has full power and authority and may give any necessary consent, see Knatchbull v Fowle (1876) 1 Ch D 604. In Rhodes v Swithenbank (1889) 22 QBD 577, Bowen LJ said at 579:

'The only reason that the next friend of an infant is entitled to bind the infant in matters connected with the cause is that he is an officer of the Court to take all measures for the benefit of the infant in the litigation in which he appears as the next friend.'

13       All that the next friend does must be done for the benefit of the person under disability, otherwise it is done without authority. See Rhodes v Swithenbank (supra).

14       Thus, it seems to me, that primarily, a next friend is appointed for the benefit of the defendant. A successful defendant is entitled to look to the next friend to satisfy an order for costs which it would not be able to enforce against an infant or person otherwise under disability."

1. In Crockett Underwood J was dealing with an application to stay proceedings being pursued by Louise Crockett, a person under a disability, in her own name without a litigation guardian. Pursuant to the Act, an order had been made appointing a statutory corporation as the administrator of Ms Crockett, but that corporation was not prepared to be added to the proceedings as her litigation guardian as this would have exposed all its assets, not just those held on behalf of Ms Crockett, to an order for costs if her action failed. Underwood J referred to the Act, s56(2)(l) and (5), which provide:

   "(2) Without limiting sub-section (1), an administrator may, in the name and on behalf of the represented person and so far as may be specified in the administration order -

   ...

   (l)bring and defend actions and other legal proceedings in the name of the represented person; 

   ...

   (5) Where a decision, action, consent or act is made, taken, given or done by an administrator under an order made by the Board or under any power or authority given by this Act, the decision, action, consent or act has effect as if it had been made, taken, given or done by the represented person and the represented person had the legal capacity to do so."

   His Honour accepted that by reason of these provisions Ms Crockett's solicitor, who was instructed by Ms Crockett's administrator, was properly appointed and could be given binding instructions without the appointment of a litigation guardian and that the defendant's right to recover costs from Ms Crockett in the event that she failed in the action was as good as it would have been if she was not a person under a disability.  This being so, Underwood J concluded that the defendants would suffer no prejudice if Ms Crockett was allowed to maintain her action without the appointment of a litigation guardian.  The application to stay her action was refused.

1. The circumstances of the plaintiff in this case are similar to those of Ms Crockett insofar as the plaintiff has a guardian appointed under the Act, the Public Trustee, who refuses to be named as her litigation guardian, I infer, because the means of the plaintiff are so meagre that the assets of the Public Trustee would be put at risk if the plaintiff was ordered to pay the costs of the action. No one else is apparently willing to act as the plaintiff's litigation guardian and as the State of Tasmania is the defendant to her action, it would be inappropriate for the Court to exercise its discretion to appoint the Director of Public Prosecutions as her litigation guardian pursuant to the Supreme Court Rules, r295(b).

1. Whilst not challenging the correctness of the decision in Crockett, counsel for the defendant submits that it does not apply to this case.  Counsel contends that to allow the plaintiff to proceed with her action without a litigation guardian will prejudice the defendant in obtaining discovery and answers to interrogatories.  This asserted prejudice was not raised in Crockett, perhaps because these matters had already been attended to before Ms Crockett found herself without a litigation guardian.

1. Ordinarily it is highly unlikely that a person under a disability will have the knowledge or capacity to personally make discovery or answer interrogatories and thereby make admissions.  The practice in England prior to 1893 was not to allow an affidavit of a next friend or a guardian ad litem of a disabled person to be read against the disabled person, as a next friend or guardian was only involved in the proceedings for the purposes of protecting the interests of the disabled person and it would be inconsistent with that role to make admissions against the interests of a disabled person, Ingram v Little [1883] 11 QBD 251 and Dyke v Stephens [1885] 30 Ch D 189. This notion is reflected in the Supreme Court Rules, r298, which is to the effect that save where the party is a minor, a consent given by a litigation guardian has no effect without the approval of a court or a judge. See also Rhodes v Swithenbank (supra).  In England, the practice in relation to the equivalent of a litigation guardian was changed in 1893 by a rule of practice that made the rules as to discovery applicable to next friends and guardians ad litem, Paspati v Paspati [1914] PD 111. Similar, but varied, rules of practice have been adopted in most Australian jurisdictions as to both discovery and interrogatories, see D L Bailey and E K Evans, Discovery and Interrogatories Australia, Butterworths (1997) (loose leaf service) [9265] as to discovery and [21,485] as to interrogatories.  In Tasmania, the Rules of the Supreme Court 1965, O33, r34, provided that the rules as to discovery and interrogatories applied "to a person under disability and to his next friend and guardian ad litem".  A broadly similar provision was contained in the rules of practice that preceded those rules, the Rules of Court (Supreme Court) 1932, OXXXII, r27.  The current rules of practice, the Supreme Court Rules, contain no similar provision.  In the absence of such a provision, orders as to discovery or interrogatories cannot be obtained against a litigation guardian as of right.  This is not to say that the Court has no jurisdiction to make such an order.  The presence of the provisions referred to in the 1932 and the 1965 rules of practice is recognition of the existence of the jurisdiction to make such orders.  The failure to include a similar provision in the current rules of practice appears to be no more than recognition that a litigation guardian should not be required to make discovery or answer interrogatories unless it is demonstrated that this course is warranted.  It is difficult to envisage circumstances in which it would be appropriate to order a litigation guardian to answer interrogatories.  The incapacity of a person under disability to provide information is not overcome by making a litigation guardian the conduit for that information.  Whilst the Rules of the Supreme Court 1965, O33, r34, in effect gave a party an as of right entitlement to interrogate the equivalent of a litigation guardian, this did not entitle that party to interrogate the guardian as to his or her personal knowledge of facts in issue, Jackson v Roberts [1941] ALR (CN) 365. Accordingly it would ordinarily be futile to order a litigation guardian to answer interrogatories.

1. In a case such as the present, save for the benefit of having an additional entity to look in relation to costs, the appointment of a litigation guardian is of little assistance to the opposite party. Where an administrator has been appointed under the Act in relation to a person under disability, to the extent provided for in the Act, steps taken on the instructions of the administrator in proceedings brought or defended in the name of the person under disability are authorised and binding. This benefit flows regardless of whether the administrator is also appointed as the litigation guardian of the person under disability. The benefit flows so long as the steps taken in the proceedings in the name of the person under disability are taken at the behest of the guardian. The defendant in this case has that benefit and in order to satisfy the defendant that the benefit will be maintained, the plaintiff's administrator, the Public Trustee, has undertaken to immediately notify the defendant if the Public Trustee desists from bringing the action in the name of the plaintiff.

1. It is not possible to anticipate with any precision what will occur in the course of these proceedings.  It is reasonable to anticipate that, in the exercise of the powers vested in the Public Trustee to act in the name of the plaintiff, the Public Trustee will make discovery.  If that course becomes appropriate, but discovery is not forthcoming, then it will be open to the defendant to apply for a stay of proceedings; Prioleau v United States of America Law Rep 2 Eq 659, United States of America v Wagner Law Rep 2 Ch 582 and Republic of Liberia v Roye 1 App Cas 139. Alternatively, it may be open to the Court to make an order against the Public Trustee as the Public Trustee is so far dominus litis and so amply clothed with power by the Act, s56, that such an order would be justified; Milanese v Harburger [1980] VR 652 at 655 and see also Higginson v Hall (1879) 10 Ch D 235 at 236. The same alternatives would be open in the unlikely event it was established that it was appropriate for the Public Trustee to respond in the name of the plaintiff to interrogatories delivered by the defendant.

1. The defendant has not satisfied me that it is likely to be prejudiced by the irregularity that results from the absence of a litigation guardian for the plaintiff.  I share the view expressed by Underwood J in Crockett [31] that the provisions in the Act as to the appointment of a guardian make the appointment of a litigation guardian otiose.  In dismissing the defendant's application, I recognise that it is not possible to anticipate all that will occur in the course of these proceedings.  Should an instance of prejudice to the defendant arise that can only be alleviated by the appointment of a litigation guardian for the plaintiff, then it is open to the defendant to renew its application for a stay of the proceedings.  It cannot be said that the defendant has waived the irregularity in question; compare with Mewburn v Mewburn (supra).

1. The application is dismissed.