Queensland Judgments


Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • {solid} Appeal Determined (QCA)

Palmer v The Chief Executive, Queensland Corrective Services Commission


[2009] QCA 296






SC No 8711 of 2007

Court of Appeal


Application for Extension of Time / General Civil Appeal



8 October 2009




8 October 2009


Keane, Muir and Chesterman JJA

Separate reasons for judgment of each member of the Court, each concurring as to the orders made


  1. Appeal adjourned to a date to be fixed
  2. Costs to be costs in the cause


MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where appellant imprisoned – where appellant purporting to institute proceedings for damages for personal injury – where appellant alleges in putative personal injury proceedings that he has suffered an acquired brain injury – where appellant has filed and served voluminous and nonsensical material – where matter adjourned to determine whether litigation guardian should be appointed

Judicial Review Act 1991 (Qld), s 48

Supreme Court of Queensland Act 1991 (Qld), Sch 2

Uniform Civil Procedure Rules 1999 (Qld), r 93

L v Human Rights and Equal Opportunity Commission (2006) 233 ALR 432; [2006] FCAFC 114, applied

Lumley v Crime and Misconduct Commission [2009] QCA 79, cited


The applicant appeared on his own behalf

K A Mellifont, with T F Pincus, for the respondent


The applicant appeared on his own behalf

Crown Law for the respondent

KEANE JA:  The appellant Mr Palmer is in the custody of the Corrective Services Commission.  It seems that he has it in mind to institute legal proceedings including an action for damages for personal injury suffered by him in a motor vehicle accident.  In that accident it is said he suffered an acquired brain injury.  He appears to be aggrieved by decisions of the Commission which he regards as limiting his access to material which he regards as relevant to the formulation and prosecution of his proposed claim.  In October 2007 he commenced proceedings under the Judicial Review Act 1991 Queensland ("the JR Act") to have these decisions reviewed.


The respondents applied to have Mr Palmer's application dismissed pursuant to s 48 of the JR Act on the ground that there was no reasonable basis for the application for judicial review.  The respondents' application was upheld by the learned and Mr Palmer's application for judicial review was dismissed on the basis that her Honour was unable to identify a decision made under an enactment amendable to review under the JR Act.


The learned primary Judge's decision to dismiss Mr Palmer's application was made on 6 February 2009.  On 7 July 2009 Mr Palmer purported to commence an appeal against that decision.  The time for appeal had long expired and in any event by virtue of s 48(5) of the JR Act an appeal to this Court in such circumstances lies only by leave.


It may be assumed in Mr Palmer's favour that he seeks leave to appeal and makes an application for an extension of time in which to do so.[1]  But even if that assumption is made in Mr Palmer's favour, in my opinion, this Court should not exercise the discretion to allow Mr Palmer's appeal to proceed at least at the present time. 


Mr Palmer filed a written submission dated 6 August 2009 in support of his appeal.  He has subsequently supplemented those submissions with further documents.  Mr Palmer's arguments are very difficult to understand.  They exhibit a degree of incoherence which is not explicable simply by reason of the circumstance that Mr Palmer represents himself.  Mr Palmer discloses in his material filed in this Court that he has suffered an acquired brain injury which may explain the incomprehensibility of the arguments he seeks to pursue.  However that may be, this circumstance together with the circumstances I have mentioned concerning his failure to comply with the procedural requirements relating to an appeal to this Court from a decision to dismiss an application for judicial review, raise a concern that he is under a legal incapacity by reason of which he may start proceedings only by a litigation guardian.[2]


In L v The Human Rights and Equal Opportunity Commission,[3] the Full Court of the Federal Court of Australia discussed the law relating to the appointment of litigation guardians making the important point that the rationale for the appointment of the litigation guardian for a litigant whose capacity is impaired is the protection of the litigant, the other parties, and the administration of justice itself.  The Full Court of the Federal Court said:[4]


"The law relating to the appointment of a litigation guardian for a person who lacks the requisite capacity to conduct litigation or the capacity to give instructions to a person conducting litigation on their behalf, has a long history. Its origins can be traced back to the prerogative power of the Crown to protect those in need of protection on account of mental incapacity.


The law developed in the context of property disputes. In 1891, Kekewich J observed that it was 'undoubted' that the Chancery Division of the High Court had jurisdiction 'to protect the estates of those who, though not found lunatic, are yet incompetent, by reason of a weakness of intellect, to take proceedings themselves – that is to say, to instruct their solicitors to take proceedings on their behalf': Howell v Lewis (1891) 61 LJ Ch 89 at 89.


There are valuable statements about the court's power to appoint litigation guardians in Masterman-Lister v Brutton and Co (Nos 1 and 2) [2003] 1 WLR 1511 (Masterman-Lister). In substance, the purpose is to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court. Kennedy LJ said (at [31]):


[31] In the context of litigation, rules as to capacity are designed to ensure that plaintiffs and defendants who would otherwise be at a disadvantage are properly protected, and in some cases that parties to litigation are not pestered by other parties who should be to some extent restrained.


Chadwick LJ (at [65]) said:


[65] The pursuit and defence of legal proceedings are juristic acts which can only be done by persons having the necessary mental capacity; and the court is concerned not only to protect its own process but to provide protection to both parties to litigation which comes before it. A defendant is entitled to expect that he will not be required to defend proceedings brought against him by a person of unsound mind acting without a next friend.


There is a presumption of competence unless and until the contrary is proved; that is, there is a presumption that a litigant of full age is competent to manage his or her affairs: Masterman-Lister at [17] per Kennedy LJ; Murphy v Doman (2003) 58 NSWLR 51; [2003] NSWCA 249 at [36] (Murphy) per Handley JA. When it is alleged that a person is incompetent, the onus of proof is on those so asserting: Masterman-Lister at [17] per Kennedy LJ; Dalle-Molle v Manos (2004) 88 SASR 193; [2004] SASC 102 at [17] per Debelle J; Andreapoulou v Nowak [2002] VSC 462; Pratt v Dickson [2000] QSC 314.


The means by which the court will determine whether a guardian should be appointed can vary from case to case. In Masterman-Lister, Kennedy LJ said (at [29]) that the decision as to capacity rests with the court but in almost every case the court would need medical evidence to guide it. Earlier, Kennedy LJ had observed (at [17]):


[17] … even where the issue does not seem to be contentious, a district judge who is responsible for case management will almost certainly require the assistance of a medical report before being able to be satisfied that incapacity exists.


Cases such as Hutchinson v Gaitazis (1980) 25 SASR 30; AJI Services Pty Ltd v Manufacturers' Mutual Insurance Ltd [2005] NSWSC 709 (AJI Services) and Levey v Levey (1979) 11 BCLR 97 (SC) were decided on medical evidence. There will, however, be cases where no medical evidence is available as, for example, when a litigant refuses to submit to a medical examination. And there will be cases where the lack of capacity is so clear that medical evidence is not called for. In those cases, and perhaps others, the court is entitled to rely on its own observation to make an assessment about the capacity of a party: see, for example Murphy at [37] per Handley JA; AJI Services at [57] per Bell J."


Mr Palmer has not previously been put on formal notice of a concern as to his capacity or his impairment.  He is entitled to consider his position and to obtain medical evidence before any decision adverse to him in terms of his capacity to litigate is made.


On the other hand, I consider that there is sufficient reason for concern that Mr Palmer's capacity to litigate is such that he should not be able to do so without a litigation guardian.  I would not be prepared to exercise a discretion to allow Mr Palmer's present appeal to proceed until the question attending his capacity has been determined.  It would be no mercy to Mr Palmer and it would be an injustice to the respondents if this Court were to exercise its discretion so as to promote the furtherance of the appeal if Mr Palmer is in truth not competent to do so.


I would therefore order that the appeal be adjourned to a date to be fixed at which time if Mr Palmer is not then represented by a litigation guardian the question of his capacity to litigate on his own behalf should be determined on the evidence then available before the issues which Mr Palmer seeks to agitate proceed.


MUIR JA:  I agree.




KEANE JA:  The order of the Court will therefore be that the appeal be adjourned to a date to be fixed.


[1] Lumley v Crime and Misconduct Commission [2009] QCA 79 at [4].

[2] Uniform Civil Procedure Rules 1999 (Qld), r 93 provides that a person under a legal incapacity may start or defend proceedings only by the person's litigation guardian. A person under a legal incapacity is, relevantly for present purposes, a person with impaired capacity, that is, a person who is not capable of making the decisions required of a litigant for conducting proceedings: Supreme Court of Queensland Act 1991 (Qld), Sch 2.

[3] (2006) 233 ALR 432.

[4] (2006) 233 ALR 432 at 438 – 439 [23] – [27].


Editorial Notes

  • Published Case Name:

    Palmer v The Chief Executive, Queensland Corrective Services Commission & Anor

  • Shortened Case Name:

    Palmer v The Chief Executive, Queensland Corrective Services Commission

  • MNC:

    [2009] QCA 296

  • Court:


  • Judge(s):

    Keane JA, Muir JA, Chesterman JA

  • Date:

    08 Oct 2009

Litigation History

Event Citation or File Date Notes
Primary Judgment - - -
Appeal Determined (QCA) [2009] QCA 296 08 Oct 2009 -

Appeal Status

{solid} Appeal Determined (QCA)