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Young v Low and QBE Insurance (Australia) Ltd[2022] QSC 235

Young v Low and QBE Insurance (Australia) Ltd[2022] QSC 235

SUPREME COURT OF QUEENSLAND

CITATION:

Young v Low and QBE Insurance (Australia) Ltd [2022] QSC 235

PARTIES:

ELIZABETH SOPHIA ANNE YOUNG

(plaintiff)

v

GRACE ZE MEI LOW

(first defendant)

AND

QBE INSURANCE (AUSTRALIA) LTD

ABN 78 003 191 035

(second defendant)

FILE NO/S:

6240 of 2019

DIVISION:

Trial – Supervised Case List Review

PROCEEDING:

Claim

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

31 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2022

JUDGE:

Freeburn J

ORDERS:

Reasons for the orders made on 24 October 2022, namely:

  1. The trial of this proceeding, set to commence on 14 November 2022, be adjourned;
  2. There be an order for mediation on a date to be agreed by the parties;
  3. This proceeding be referred to the Attorney-General;
  4. The costs be reserved.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – PERSONS UNDER LEGAL INCAPCITY (OTHER THAN CHILDREN): JURISDICTION AND POWERS – where the Queensland Civil and Administrative ruled the plaintiff as incapacitated – where the tribunal appointed the Public Trustee of Queensland as the plaintiff’s Administrator – where the Public Trustee of Queensland refused to accept an appointed as the plaintiff’s litigation guardian – whether the trial ought to be adjourned – whether the proceeding ought to be referred to the Attorney-General

Guardianship and Administration Act 2000 (Qld)

Public Trustee Act 1978 (Qld), s 27

Uniform Civil Procedure Rules 1999 (Qld), r 95(2)

Energex Ltd v Sablatura [2009] QSC 356

COUNSEL:

M Grant-Taylor and R Morton for the defendants

SOLICITORS:

McInnes Wilson for the defendant

Fisher Dore (as friends of the court)

Public Trustee of Queensland (as friends of the court)

REASONS

  1. [1]
    On 24 October 2022, I made the following orders:
    1. (a)
      the trial of this proceeding, set to commence on 14 November 2022, be adjourned;
    2. (b)
      there be an order for mediation on a date to be agreed by the parties;
    3. (c)
      this proceeding be referred to the Attorney-General;
    4. (d)
      the costs be reserved.

These are my reasons for making those orders.

Background

  1. [2]
    The plaintiff, Ms Young, is 42 years old.  On 2 June 2015, she was injured in a traffic accident.  The first defendant, Ms Low, was the driver of the other vehicle.  The second defendant, and the only active defendant, is the first defendant’s insurer.
  2. [3]
    On 14 June 2019, proceedings were commenced.  A total sum of $7.4m was sought in damages for negligence.  The pleading was settled by Mr SC Williams QC and Mr AS Katsikalis of counsel.  On 30 July 2019, the defendants filed a defence.  That defence admitted negligence.[1]  The defence admits a minor and temporary injury but denies any lasting impairment or disability.  The defence denies that any psychiatric injury was caused by the accident.
  3. [4]
    On 6 August 2019, a reply was filed and served on behalf of Ms Young.  Again it was prepared by solicitors and settled by counsel.
  4. [5]
    From August 2020, the proceeding languished.  On 19 October 2020, the proceeding came before Bowskill J via a caseflow intervention notice.  Her Honour made directions about a document plan and about a request for trial date.
  5. [6]
    On 22 October 2020, Ms Young’s solicitors issued a notice of non-party disclosure to Ms Young’s former employers.
  6. [7]
    However, on 4 March 2021, Ms Young’s solicitors sought leave to withdraw as the solicitors for Ms Young.  On 10 March 2021, Bowskill J granted that application.  It appears from the court file that Ms Young appeared for herself on that day.  On the same day, Ms Young appears to have filed a notice that she was acting in person.
  7. [8]
    The proceeding was placed on the supervised case list and listed for review by Boddice J on 15 April 2021.  When the matter was heard by His Honour, Ms Young appeared for herself.  This appears to be the last occasion on which Ms Young has actively participated in the proceeding.
  8. [9]
    The trial appears to have been set down for five days to commence on 25 October 2021.  However, on 2 September 2021, Applegarth J adjourned that trial ‘on the papers’ and ordered that the parties confer with the Resolutions Registrar.
  9. [10]
    There were then a number of reviews.  Ms Young did not attend.  Another trial date was set for five days commencing on 20 June 2021, but those trial dates were abandoned because Ms Young was not in contact with anybody.  The trial was relisted for five days commencing on 14 November 2022.  Attempts to contact Ms Young failed.
  10. [11]
    This matter has been reviewed on the Self-Represented Litigants list since April 2022.

QCAT

  1. [12]
    Ms Young’s affairs came before the Queensland Civil and Administrative Tribunal (QCAT) on 11 May 2022.  On that occasion, QCAT ordered that the Public Trustee of Queensland be appointed as administrator for Ms Young for the purposes of managing the following financial matter: “The Supreme Court of Queensland proceeding BS6240 of 2019 [i.e. this proceeding].”  That same QCAT order provided that the appointment (of the Public Trustee) is not reviewable and will come to an end on the finalisation of this proceeding.
  2. [13]
    QCAT’s decision was based on its determination that Ms Young was a person under an incapacity.  The evident purpose of QCAT’s order was to enable the Public Trustee to manage and make decisions for Ms Young in this proceeding.  However, despite that order of QCAT, the Public Trustee has not embarked upon any administration of this litigation for Ms Young and certainly has not embarked upon any decision-making role. On the contrary.  For reasons that will be explained, the Public Trustee refuses to administer the proceeding for Ms Young.  There is something unsettling in the idea that a statutory body would simply take no steps to comply with the terms of a court order but that it would refuse to do so. More on that below.
  3. [14]
    Section 239 of the Guardianship and Administration Act 2000 (Qld) states that the provisions of that Act do not affect the rules of court about a litigation guardian for a person under a legal incapacity.  Thus, the two regimes, namely the appointment of guardians or administrators under s 12 of the Guardianship and Administration Act 2000 (Qld), and the appointment of litigation guardians under rules 93 and 95 of the Uniform Civil Procedure Rules 1999 (Qld), appear to operate in a parallel way. Of course, the litigation guardian has a special or confined role to act for the party who lacks legal capacity in litigation and a guardian or administrator can be appointed for a variety of purposes.
  4. [15]
    It is obvious that Ms Young has impaired capacity[2] and is unable to look after her own interests.  Most people in that situation are able to have a friend or a relation represent them as litigation guardian.  Ms Young has no person who can act for her as litigation guardian.
  5. [16]
    Many in the community would expect that in this situation, where no person is available to act as litigation guardian, the Public Trustee would be the entity that would perform that role.  As will be explained, it appears not.

Chronology

  1. [17]
    On 25 July 2022 Ms Wilson, a solicitor in the employ of the Official Solicitor to the Public Trustee, asked Fisher Dore if that firm would be willing to act for Ms Young in this litigation.
  2. [18]
    On 27 July 2022, Mr Herd (a principal of Fisher Dore), Ms Qi (a solicitor of Fisher Dore) and Ms Wilson conferred by video with Ms Young.  Ms Young confirmed that there was nobody in her life who could act as her litigation guardian.
  3. [19]
    At this point, the trial having been adjourned twice, the solicitors for the second defendant were concerned about the fact that Ms Young was not properly represented by lawyers.  And so, on 2 August 2022, the solicitors for the second defendant advised the Public Trustee that they were prepared to agree that, if the Public Trustee became litigation guardians, and the defendants obtained a costs order against the plaintiff, that order would only be executed against any monetary award made in the litigation.  In other words, they assured the Public Trustee that no costs would be sought against the Public Trustee.
  4. [20]
    On 11 August 2022, Ms Wilson advised Mr Herd that, having regard to that proposal from the defendants, the Public Trustee would agree to act as Ms Young’s litigation guardian provided that:
    1. (a)
      Fisher Dore accepted instructions to act for Ms Young; and
    2. (b)
      A grant of legal aid was obtained from Legal Aid Queensland’s Civil Law Subsidy Scheme to fund any disbursements which may be incurred in the proceeding.
  5. [21]
    The next problem was that Ms Richardson, a representative of Legal Aid Queensland advised Mr Herd that:
    1. (a)
      She expected it would be necessary for there to be a litigation guardian in place before an application to that Legal Aid Scheme would be considered;
    2. (b)
      Legal Aid may need some assurance that legal professional fees and disbursements and statutory refunds would not exhaust any potential award so that Legal Aid could be assured it could recover its grant under the Scheme;
    3. (c)
      Legal Aid would be more likely to provide a limited grant of aid via the Scheme, if the claim was referred to a further mediation via the court’s pro- bono mediation referral service.
  6. [22]
    On 16 August 2022, the Public Trustee signed an application for aid under the Scheme.

Review on 19 August 2022

  1. [23]
    And so, when the proceeding came before me for review on 19 August 2022, Fisher Dore’s concerns, and its reasons for not yet agreeing to act for Ms Young were as follows:

“a. the Firm does not yet hold a copy of all relevant documents in the claim;

b. it is apparent that significant professional fees and disbursements, both actual and anticipated, will have already been incurred on the Plaintiff’s behalf in respect to, for example, expert witnesses and Counsel, and the extent of those amounts is not yet known;

c. it is not yet known whether a Litigation Guardian can be obtained for the Plaintiff in the claim;

d. it is not yet known whether Legal Aid will agree to a grant pursuant to the Scheme;

e. if a Litigation Guardian is obtained, at present and in light of the above, the Firm is not in a position to meeting the disbursements that are likely to be incurred should the claim proceed to trial;

f. I am concerned about committing to the Firm to being solicitors on the record with the obligations that will entail;

g. as detailed below, I am concerned the medical evidence does not adequately explore all pertinent issues in the claim; and

h. I am concerned about the Plaintiff’s fitness to stand trial.”

  1. [24]
    Of particular note is the ‘Catch-22’ situation.  Legal Aid were unwilling to consider granting aid under the scheme unless a litigation guardian was in place.  And the only entity that could act as Ms Young’s litigation guardian, the Public Trustee, refused to do so unless Legal Aid granted aid under the Scheme. The further impasse was that Fisher Dore were only prepared to agree to act if a litigation guardian was appointed to represent Ms Young. The Public Trustee was the only realistic candidate for appointment as litigation guardian, and it refused to accept such a position unless both Fisher Dore accepted instructions to act for Ms Young and Legal Aid granted aid to fund disbursements.
  2. [25]
    At the review on 19 August 2022, Mr Charrington QC and Ms S Noble appeared for Fisher Dore as friends of the court.  Ms Wilson appeared for the Public Trustee, also as a friend of the court.  Mr Morton appeared for the defendants.  Ms Young was conspicuous by her absence, and the absence of a person representing her interests.
  3. [26]
    The orders made on that occasion, in an attempt to resolve the impasse were:

“1. Pursuant to r 95(2) of the Uniform Civil Procedure Rules 1999, the Public Trustee of Queensland be appointed as the litigation guardian for the Plaintiff on the following conditions:

a. that Legal Aid Queensland approve a grant of aid sufficient to fund the disbursements that will be incurred in the claim; and

b. that Fisher Dore Lawyers accept instructions from the Public Trustee of Queensland as litigation guardian for the Plaintiff and file a notice of address for service for the Plaintiff.

  1. Upon notification to the Public Trustee of Queensland that the conditions contained in Order 1(a) and 1(b) are satisfied, the Public Trustee of Queensland shall file a Form 13 Consent to act as Litigation Guardian for the Plaintiff.”
  1. [27]
    Neither of those conditions were fulfilled.  Legal Aid have approved the expenditure of an amount, but that is insufficient.  Fisher Dore have not accepted instructions from the Public Trustee.

Review on 24 October 2022

  1. [28]
    By an affidavit filed on 23 September 2022, Mr Herd of Fisher Dore has advised the court that:
    1. (a)
      the application to Legal Aid was made on 19 August 2022;
    2. (b)
      by a letter received on 2 September 2022 Legal Aid asked for further information and documents before it would consider the application;
    3. (c)
      many of the documents requested by Legal Aid, such as bank statements, etc were not able to be obtained from Ms Young, or through the Public Trustee as administrator;
    4. (d)
      Legal Aid had not, at that point, made a decision.
  2. [29]
    When the proceeding was reviewed again on 24 October 2022, which was only some three weeks before the commencement of the trial, Mr Herd explained the situation in this way:
    1. (a)
      For the proper preparation of Ms Young’s case, it was necessary to investigate some cultural issues (Ms Young is of Chinese descent) as well as some psychiatric issues;
    2. (b)
      Legal Aid had granted some aid but reports would not be ready by 14 November 2022;
    3. (c)
      Legal Aid has not agreed to fund other disbursements and (understandably) Fisher Dore was not prepared to fund disbursements – on top of the professional fees it would incur;
    4. (d)
      There were tentative arrangements for a mediation on 31 October 2022, but without the expert reports there was limited utility in such a mediation;
    5. (e)
      He was aware that there was in existence some surveillance evidence which had been suppressed by order of the court;
    6. (f)
      The fitness of Ms Young to undertake a trial had not been determined.
  3. [30]
    At my request Legal Aid Queensland appeared at the review, represented by Ms Muirhead.  Legal Aid has granted a limited amount of aid consistent with the guidelines of the Scheme.
  4. [31]
    Also, at my request, Ms Wilson for the Public Trustee explained the Public Trustee’s position in a letter to the court.[3]  Essentially the Public Trustee relies on s 27(3) of the Public Trustee Act 1978 (Qld) which provides that the Public Trustee’s appointment by the court to any position is subject to the Public Trustee’s consent.

The Public Trustee’s Stance

  1. [32]
    After referring to s 27(3) of the Public Trustee Act 1978 (Qld), which enables the Public Trustee to refuse an appointment, the Public Trustee continues:

“The Public Trustee is unable to act as Ms Young’s litigation guardian in the Proceedings without engaging the services of a personal injuries lawyer who can provide the Public Trustee with advice and act on the instructions of the Public Trustee to progress Ms Young’s claim.

The Public Trustee has agreed to consent to the appointment as Litigation Guardian for Ms Young in the Proceedings.  The consent is subject to two conditions being met as ordered on 19 August 2022.

The Public Trustee has agreed to accept the appointment as Litigation Guardian for Ms Young in the Proceeding provided that two conditions are met being:

  1.  Legal Aid Queensland providing sufficient funds for outlays as required; and
  1.  Fisher Dore Lawyers agreeing to accept instructions from the Public Trustee and file a notice of address for service in the Proceeding.”
  1. [33]
    The letter ends there. What is obvious, but unstated by the Public Trustee, is that the two conditions it requires to be fulfilled have not been fulfilled. For the reasons explained, there is no realistic prospect of those conditions being fulfilled. And so, for all practical purposes, the Public Trustee’s position is that it will not undertake the role of litigation guardian for Ms Young, a person suffering impaired capacity, unless and until:
    1. (a)
      Fisher Dore agree to act on a pro bono basis so that the Public Trustee will not be required to pay that firm’s professional fees; and
    2. (b)
      Legal Aid provides sufficient funds for all of Fisher Dore’s disbursements and thus the Public Trustee will not have any liability for Fisher Dore’s disbursements; and
    3. (c)
      the defendants continue to agree to limit its rights to recovery of any adverse costs orders to a set-off against the damages that are subject to an award.
  2. [34]
    In her oral submissions Ms Wilson submitted that the Public Trustee is not prepared to consent to act as Ms Young’s litigation guardian because it needs to engage the services of a specialist personal injuries firm. Of course, in personal injuries litigation most litigants would wish to engage the services of a specialist personal injuries lawyer – whether that be solicitors or counsel or both.  And, in Brisbane, there are any number of legal firms with this specialist expertise who would be available to act for the Public Trustee if it were appointed as Ms Young’s litigation guardian. As the chronology explained above makes clear, what has happened is not that the Public Trustee finds itself unable to secure the services of a specialist personal injuries firm but rather that it has been unable to secure the services of a specialist personal injuries firm which is willing to act on a pro bono basis, with disbursements borne by Legal Aid.
  3. [35]
    I am unable to accept the submission that the Public Trustee is not prepared to consent to act as Ms Young’s litigation guardian because it needs to engage the services of a specialist personal injuries firm. That really obscures the Public Trustee’s real stance. The real position adopted by the Public Trustee is that it will not consent to act as litigation guardian unless the three conditions set out above are satisfied. In other words, the Public Trustee seeks to ensure that it has a full indemnity for the costs of the proceeding and to ensure that not one dollar of its funds will be put at risk in this litigation. If it does not have that full indemnity it will not step in. And, it is necessary to be realistic. The demand for a full indemnity as a price for participation is a demand for the unattainable. Here, even amid the generous offers on the part of Fisher Dore, the defendants and Legal Aid, the fulfilment of the conditions was unattainable. It would rarely, if ever, be possible for those conditions to be satisfied.[4] Thus, for all practical purposes, the reality is that the Public Trustee refuses to act.
  4. [36]
    At times people in our community need help with their financial or legal affairs.  It is surprising, to me at least, that the Public Trustee’s help is only available if that help can be administered without risk and without any expense to the Public Trustee. And so this is not a case where a considered judgment has been made that the merits of this particular case do not warrant the expenditure or a risk to public funds. Instead, the Public Trustee adopts a stance that it will not consent to act for an impaired person because it is unable to litigate free of any expense or risk.
  5. [37]
    Incidentally, I do not overlook the fact that, in those cases where the Public Trustee does choose to act as litigation guardian, it needs to have its own staff provide instructions to its lawyers. However, in so far as the Public Trustee acts as administrator it is entitled to charge fees.[5]

Energex Limited v Sablatura

  1. [38]
    During the course of the last review, I provided the parties with a copy of the decision of Atkinson J in Energex Limited v Sablatura.[6] There, after referring to the Public Trustee’s power to refuse an appointment under s 27(3) of the Public Trustee Act 1978 (Qld), Her Honour explained the position:

The applicant in this case made an offer in open Court to indemnify the Public Trustee for any costs incurred by it in acting as litigation guardian.  The Public Trustee nevertheless asserted that it would not accept appointment by the Court, however over the luncheon adjournment, further instructions were sought and the Public Trustee has quite properly consented to its appointment as litigation guardian. It is, of course, a matter of some concern to the Court that, where the defendant is or becomes under a legal disability, an applicant or plaintiff  may not be able to vindicate its rights if there is no-one who is able to act as litigation guardian, apart from the Public Trustee; the Court is of the view that the Public Trustee is the appropriate person to be appointed; the Public Trustee nevertheless has the statutory power to refuse appointment; and exercises that  power to refuse appointment.

  1. [39]
    Her Honour continued:

In those circumstances, either the statute needs amendment or the Court would have to look to other public officials to undertake this important public duty.  It would be hard to imagine that another public official would be appropriate, where the Public Trustee was the administrator for such matters, but as a final resort, the Court would presumably have to look to the Attorney General in the Court's exercise of its parens patriae jurisdiction over infants and those who lack legal capacity.  However, that has not been necessary in this case because after argument, and after the luncheon adjournment, the Public Trustee agreed to act as litigation guardian.

This is a topic which is in need of law reform to clarify when the Public Trustee must act as litigation guardian particularly where there is no-one else willing and able to act.  Such law reform should consider if conditions may be attached to the Public Trustee’s appointment particularly as to costs. The need for such law reform has been recognised, albeit in a different statutory context, in Western Australia by Pullin J in Farrell v Allregal Enterprises Pty Ltd [2009] WASC 65.

  1. [40]
    Ultimately, during the luncheon adjournment in Energex Limited v Sablatura the Public Trustee overcame its initial reluctance to be appointed as litigation guardian. Here, the Public Trustee’s stance has endured for several months and appears entrenched. Indeed, it is worth observing that each of Fisher Dore, Legal Aid Queensland and even the defendants were willing to contribute significant value to achieving a solution which would see the Public Trustee undertake the litigation.
  2. [41]
    The remarks of Atkinson J in Energex Limited v Sablatura identify a particular problem where the Public Trustee refuses to act. If the Public Trustee will not act for a person with impaired legal capacity, who will? This case was commenced by Ms Young when she had legal capacity. Solicitors and counsel acted for her initially. She had what they thought was a worthwhile claim. Only quantum is in issue. Since then, she has become impaired. If Ms Young is unable to secure representation, the likelihood is that her claim will be dismissed. The trial has now been adjourned on three occasions and the defendants are entitled to have the case heard within a reasonable time.     
  3. [42]
    It may be that Ms Young has a very significant claim. Or it may be that the claim is worth very little. That is difficult to assess. But even if the claim is worth a modest amount, a dismissal of the proceeding would mean that Ms Young has lost her legal rights and she has lost those legal rights without any opportunity to be heard. Even the prospect of a sensible settlement is beyond her.
  4. [43]
    As I explained earlier, there is another extraordinary aspect to this case. QCAT ordered that the Public Trustee act for Ms Young as administrator for the purposes of this litigation. No actions appear to have been taken by the Public Trustee to comply with that court order. That order does not seem to have achieved anything.
  5. [44]
    For those reasons I have made the orders set out above, including that, in the exercise of the court’s parens patriae jurisdiction, this matter be referred to the Attorney-General to consider whether the Attorney-General should intervene or whether the court should appoint the Attorney-General or some other person as litigation guardian.

Footnotes

[1]The defence denies one of the six allegations of negligence in paragraph 5 of the statement of claim (driving at an excessive speed) but otherwise admits paragraph 5.

[2] Rules 93 and 95 of the UCPR speak of appointing a litigation guardian for a person under a “legal incapacity”.  However, s 12 of the Guardianship and Administration Act 2000 speaks of the adult having “impaired capacity” for the matter.

[3] The letter is ex 1.

[4] It is hard to think of any citizen or corporation who is able to litigate without any expense or risk.  

[5] See Part 3 of the Public Trustee (Fees and Charges Notice) (No.1) 2021.

[6] [2009] QSC 356 (ex tempore). 

Close

Editorial Notes

  • Published Case Name:

    Young v Low and QBE Insurance (Australia) Ltd

  • Shortened Case Name:

    Young v Low and QBE Insurance (Australia) Ltd

  • MNC:

    [2022] QSC 235

  • Court:

    QSC

  • Judge(s):

    Freeburn J

  • Date:

    31 Oct 2022

  • White Star Case:

    Yes

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Energex Ltd v Sablatura [2009] QSC 356
2 citations
Jump To
Cite 1 - [2009] QSC 356
Cite 2 - [2009] QSC 356
Farrell v Allregal Enterprises Pty Ltd [2009] WASC 65
1 citation
Jump To
Cite 1 - [2009] WASC 65

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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