Supreme Court Of the Australian Capital Territory; Case Title:; June Griffiths by her litigation guardian Deborah Anderson v; Australian Capital Territory; Citation:

[2022] ACTSC 304

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

June Griffiths by her litigation guardian Deborah Anderson v Australian Capital Territory

Citation:

[2022] ACTSC 304

Hearing Date:

4 November 2022

DecisionDate:

4 November 2022

Before:

Elkaim J

Decision:

(a)    Mr Tom Griffiths (deceased) is removed as litigation guardian.

(b)    Ms Deborah Anderson of [redacted] is appointed as the litigation guardian.

(c)    The solicitors for the plaintiff are to file and serve the report produced as a result of the assessment of the plaintiff due to be conducted on 1 December 2022 within 14 days of receipt of that report.

(d)    Liberty given to both parties to restore the matter on 48 hours’ notice in respect of any matter arising from the report or from the absence of a report.

(e)    The plaintiff is to pay the defendant’s costs of the application but those costs are not to be recoverable until the completion of the proceedings.

(f)     I confirm the directions hearing date of 7 November 2022.

Catchwords:

CIVIL LAW – LITIGATION GUARDIAN – Where the litigation guardian for the plaintiff is deceased – where the plaintiff wishes to appoint a new litigation guardian – whether the plaintiff has a legal disability – new litigation guardian appointed

Legislation Cited:

Court Procedures Rules 2006 (ACT) r 280

Parties:

June Griffiths by her litigation guardian Deborah Anderson (Plaintiff)

The Australian Capital Territory (Defendant)

Representation:

Counsel

E Fitzpatrick (Plaintiff)

S Platis (Defendant)

Solicitors

Gerard Malouf & Partners (Plaintiff)

ACT Government Solicitor (Defendant)

File Number:

SC 30 of 2022

Elkaim J:

1․On 1 February 2022 these proceedings were commenced against the Australian Capital Territory alleging medical negligence at The Canberra Hospital.

2․The plaintiff, who is now in a nursing home, sued by a litigation guardian who was her husband. Unfortunately, her husband has since passed away so the plaintiff put on an application in proceeding dated 1 September 2022 and filed on 8 September 2022 seeking an order under r 280 of the Court Procedures Rules 2006 (ACT) that the plaintiff’s daughter replace the original litigation guardian.

3․The daughter’s name is Ms Deborah Anderson. She has in a statement dated 1 September 2022 said that she consents to being a litigation guardian and gives an undertaking in relation to costs.

4․There should not normally be any problem on those basic facts but the solicitor for the defendant has brought to the attention of the Court a number of inconsistencies and deficiencies that have been pointed out by the Court and seem to arise from the documents. Perhaps the most apparent of these is whether or not the plaintiff actually needs a litigation guardian.

5․The best that the plaintiff’s solicitors can do is to say that one of their number thought that she needed a guardian. There is also a letter from a general practitioner dated 20 October 2022 which, in a demonstration of brevity, stated, “This is to confirm that June is not capable of making an informed decision”. One would have expected a lot more. Ms Fitzpatrick who has carriage of the matter has pointed out that COVID-19 and other issues have stood in the way of getting the appropriate documents but she has told me an assessment is due to be held on 1 December 2022.

6․The application has been in the Court a few times and to continue to delay it would really just be an invitation to incur more costs. The matter was started with a litigation guardian and essentially this application, despite its deficiencies, is to do no more than replace the litigation guardian.

7․I think I should the make the order to that effect to bring the matter to a conclusion and allow the matter to proceed. However, I will make a further order that the plaintiff’s solicitors are to file and serve the report arising from the assessment on 1 December 2022 within 14 days of them having received it.

8․I will also give liberty to the parties to relist the matter should the report cast any doubts on the necessity for the appointment of a litigation guardian.

9․The orders I make are as follows:

(a)Mr Tom Griffiths (deceased) is removed as litigation guardian.

(b)Ms Deborah Anderson of [redacted] is appointed as the litigation guardian.

(c)The solicitors for the plaintiff are to file and serve the report produced as a result of the assessment of the plaintiff due to be conducted on 1 December 2022 within 14 days of receipt of that report.

(d)Liberty given to both parties to restore the matter on 48 hours’ notice in respect of any matter arising from the report or from the absence of a report.

(e)The plaintiff is to pay the defendant’s costs of the application but those costs are not to be recoverable until the completion of the proceedings.

(f)I confirm the directions hearing date of 7 November 2022.

I certify that the preceding nine [9] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: