Yerkovich v James

Here, the Court addressed whether at the time of service of a claim and statement of claim upon her, the appellant was an impaired person within the meaning of r 109 UCPR. The Court determined that the primary judge had not miscarried in finding that the appellant was not an impaired person and accordingly service was effective.

Bond, Dalton JJA, and Hindman J

30 August 2024

Briefly, r 109 Uniform Civil Procedure Rules 1999 (“UCPR”) requires that in the case of persons with impaired capacity, any document which is required to be served personally must be served instead on either the person who is the impaired person’s litigation guardian for the proceeding to which the document relates; or a person who is entitled under r 94(2) UCPR to be the impaired person’s litigation guardian for the proceeding to which the document relates; or an adult who has the care of the impaired person.

Schedule 5 Supreme Court of Queensland Act 1991 relevantly provides that a person will have impaired capacity when they are deemed: “…not capable of making the decisions required of a litigant for conducting proceedings …”.

In the current matter, the elderly appellant had been personally served with the proceeding in New Zealand. [34]. Subsequently, the respondent obtained default judgment. [35]. Sometime thereafter the appellant, through her litigation guardian, advised that she intended to seek to set aside the default judgment. [36]. She was unsuccessful in that endeavour and the primary judge held that the appellant was not an impaired person at the time of service and accordingly the default judgment had not been irregularly entered.

The appellant appealed the finding that she was not an impaired person. She submitted that the weight of the available evidence favoured the conclusion that the primary judge should have been persuaded that she was in fact an impaired person [49]. In addition, she contended the primary judge had erred in applying a test for capacity of whether the defendant had capacity to understand the nature of service of a proceeding when it is explained to the person.

Consideration

In dismissing the appeal, the Court held as follows:

(1)That r 109 UCPR is clearly intended to prevent the unfair service of proceedings on individuals who are not capable of making the decisions required of a litigant. In the context of being served with a proceeding that would require timely decisions to be made by the served person such as:

(a)if legal representatives are to be engaged;

(b)if the proceeding is to be defended; and

(c)the content of any defence to be pleaded. [8];

(2)That the express words of Sch 5, Supreme Court of Queensland Act 1991 “prescribe a fixed standard of sanity as requisite for personal service on a person.” [43]. A person will be deemed as having impaired capacity (for the purpose of service of proceedings) in circumstances where they are clearly not capable of participating in the decisions which are involved with conducting proceedings. Someone who is unable to recall that they have been served with proceedings would not meet this standard. However “in the hypothetical case of a person who has no short-term memory ability, who will forget having been served with a proceeding immediately upon putting the document down, it simply cannot be that the person has capacity because if a competent person had been assisting the relevant person at the time of service, they could have assisted the relevant person to respond appropriately to the service of the proceeding. That would be an entirely unreasonable construction of impaired person for the purposes of r 109 of the UCPR and is not supported by the generally expressed principle set out above or the express words in Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld)”. [43]–[46];

(3)That the onus was on the defendant to satisfy the court on the balance of probabilities that she did not possess capacity at the time of service and in addition was unable to deal with the proceeding. [48], [56]. As a general proposition at common law all adults are presumed to have capacity. [6];

(4)That on the available evidence the primary judge had not erred in finding the defendant had not discharged that onus. The evidence did not support the notion that at about the time of service, the appellant was an impaired person within the meaning of r 109 UCPR. In fact, some of the evidence suggested that the appellant did indeed possess the required capacity at the relevant time. [53]–[57].

Disposition

The appeal was dismissed with costs.

A Jarro