Zuecker v Bruggmann [2016] QSC 53

[1] This matter came on for trial before me on 2 November 2015. The nature of the trial was briefly canvassed by me in a ruling which I made on the question whether the defendant could be represented by a McKenzie friend. I will not rehearse what I then said.

[2] On the second day, the defendant became ill. I canvassed the circumstances in which that occurred in my ruling on an adjournment application made on 4 November 2015. I will not rehearse what I then said.

[3] On 4 November 2015, I acceded to the adjournment application and made the following orders and directions:

1. I will adjourn this trial until 10am tomorrow.

2. I direct that the defendant file and serve on the plaintiff, by 9.30am tomorrow, a report from a qualified medical practitioner identifying:

   1. the defendant's present symptomology as observed by that doctor;

   2. whether in that doctor's opinion the defendant is able to continue to represent herself in the current Supreme Court proceedings or, at least, to provide instructions to someone else who could appear as her advocate in those proceedings; and

   3. if, in the doctor's opinion, she is not presently able to do either of those two things, when she might be able to do so.

3. I will reserve the question of the costs which have been thrown away by events yesterday and today.

[4] On 5 November 2015, I received a brief handwritten report from a psychiatrist retained to treat the defendant. His report concluded that in his opinion the defendant was not then capable of representing herself in court or giving instructions to an advocate until early 2016. He gave brief oral evidence over the telephone on the question and was cross examined by counsel on behalf of the plaintiff but maintained his views.

[5] I made the following orders:

1. The further hearing of this trial be adjourned to a date to be fixed.

2. By 29 January 2016, the Plaintiff provide to the Defendant by email:

   1. any proposed amended Statement of Claim;

   2. any proposed amended Reply and Answer;

   3. a list of further documents proposed to be tendered in the trial together with copies of those documents.

3. By 26 February 2016 the Defendant provide to the Plaintiff by email:

   1. any proposed amended Defence and Counterclaim;

   2. a response to the Plaintiff's list of further documents which identifies whether the Defendant objects to the admissibility of any of the documents on the list (and if so which) and the grounds for those objections;

   3. a list of the documents which the Defendant proposes to be tendered in the trial supplementary to those tendered or proposed to be tendered by the Plaintiff together with copies of those documents.

4. If the Defendant is unable to comply with the direction in the proceeding order because of ill health, she must provide by 26 February 2016, a report by a qualified medical practitioner (which complies with the UCPR provisions concerning expert opinion evidence), which identifies:

   1. the Defendant's present symptomology as observed by a medical practitioner;

   2. whether in that doctor's opinion the Defendant is able to continue to represent herself in this proceeding or, at least, to provide instructions to someone else who could appear as her advocate in this proceeding; and

   3. if, in the doctor's opinion, she is not presently able to do either of those two things, when she might be able to do so.

5. By 9 March 2016, the Plaintiff provide a response to the Defendant's list of documents which identifies whether the Plaintiff objects to the admissibility of any of the documents on the list (and if so which) and the grounds for those objections.

6. The proceedings be listed for directions before Bond J on 14 March 2016 at 10:00am at which time, among other things, the questions of:

   1. leave for the proposed amended pleadings; and
   2. the trial date for the further amended hearing of the trial

1. The plaintiff's application for an order that the Defendant pay the costs thrown away by the adjournment on 3, 4 and 5 November be adjourned to be determined on 14 March 2016 at 10:00am.

[6] The matter came back before me yesterday. The evidence reveals that the defendant did not do what she was directed to do.

[7] The plaintiff yesterday pressed for a trial date, further directions requiring the defendant to do what she has not yet done and for the costs the subject of Order 7.

[8] The defendant however appeared before me yesterday by her solicitor. Her solicitor placed before me evidence to the following effect:

• (a) He has acted in this matter since 12 February 2016.
• (b) He has since that date progressively been receiving the documents relevant to this proceeding.
• (c) On 20 January 2016, the defendant left Australia to travel to Zurich on an urgent basis with her former husband who was suffering from dementia and only had a small window of opportunity within which to travel by air to Switzerland with a chaperone, and without further medical certification.
• (d) On 26 February 2016, he spoke with the defendant for the purpose of obtaining instructions but a short way into that conversation gained the impression that she was becoming unduly distressed and otherwise emotional, determined that it would be inappropriate to continue and terminated the conversation.
• (e) He had sought and obtained a report from a Dr Danka, a Swiss psychiatrist, on the defendant's health difficulties and Dr Danka had advised as follows on 11 March 2016:

Mrs Bruggmann consulted me first time on 29 February 2016 in a distressed emotional state and with medical conditions due to the enduring stress of the complex legal proceedings. After a 2 hour consultation for the first time and further consultations on a weekly basis it is obvious and it is my opinion that Mrs Bruggmann is not capable to respond to the current legal proceedings. Further consultations and treatment are necessary in short intervals. It is my opinion that in relation to the above, Mrs Bruggmann is not capable to travel back from Switzerland to Australia, and Mrs Bruggmann is not capable of attending to complex legal matter, and to give further instructions to her appointed advocate. I will reassess the development of her conditions on weekly basis. I expect the recovery to be midyear or later this year.

[9] Based on that material, the defendant's solicitor sought an order that this matter be adjourned to a date not earlier than 30 June 2016 for review, and that at the review date the defendant provide an updated report in terms of Order 4 of the orders made on 5 November 2015, with liberty to apply on 7 days' notice in the event that the defendant is able to proceed at an earlier time. He had no instructions on costs but submitted that they should be reserved to be dealt with at the end of the trial.

[10] During the course of argument I raised the question with both parties whether it might be appropriate for a legal guardian to be appointed. The plaintiff submitted that that might be a matter for the defendant. The defendant submitted that that point had not yet been reached.

[11] Neither party addressed the provisions of the UCPR which are relevant to this is question.

[12] UCPR 72(1) relevantly provides "If a party to a proceeding ... becomes a person with impaired capacity ... during the proceeding, a person may take any further step in the proceeding for or against the party only if ... (a) the court gives the person leave to proceed; and (b) the person follows the court's directions on how to proceed".

[13] UCPR 93 provides:

1. Litigation guardian of person under a legal incapacity

(1) A person under a legal incapacity may start or defend a proceeding only by the person's litigation guardian.

(2) Except if these rules provide otherwise, anything in a proceeding (including a related enforcement proceeding) required or permitted by these rules to be done by a party may, if the party is a person under a legal incapacity, be done only by the party's litigation guardian.

(3) A party's litigation guardian who is not a solicitor may act only by a solicitor.

[14] The definition of "person with impaired capacity" is now contained in schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) which - by operation of s 37 of the Statutory Instruments Act 1992 (Qld) - has the same meaning in that act as it does in the UCPR: Plumley v Moroney [2014] QSC 3 at [28] per Margaret Wilson J.

[15] Relevantly, schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) provides that:

person with impaired capacity means a person who is not capable of making the decisions required of a litigant for conducting proceedings or who is deemed by an Act to be incapable of conducting proceedings.

[16] The current medical evidence raises the possibility that the defendant should be regarded as a person with impaired capacity within the meaning of UCPR 72. If that were the right finding to make, then UCPR 72(1) would operate to prevent either the plaintiff or the defendant from taking any further step in the proceeding without the leave of the Court and then only in accordance with the court's directions. And UCPR 93(2) would require the appointment of a litigation guardian before anything further could be done in the proceeding, by either side.

[17] It seems to me that the implications of the medical evidence for the further conduct of this proceeding have not yet been sufficiently rigorously considered by either party. In particular, I have not heard any submissions directed to the operation of the rules to which I have referred in these reasons or whether I should reach an "impaired capacity" conclusion in relation to the defendant.

[18] If the defendant is a person with impaired capacity within the meaning of the UCPR, then the UCPR presently seem to me to mandate the appointment of a litigation guardian if the litigation is to progress. The practicalities surrounding that course will have to be addressed by the parties. That will involve identifying a person who is willing to be a litigation guardian and addressing how that person is to be funded. Many of the issues surrounding legal proceedings involving adults with impaired capacity are discussed in the Queensland Law Reform Commission's report entitled "A Review of Queensland's Guardianship Laws" (at volume 4, chapter 28).

[19] The result is that it seems to me that the critical question affecting the on-going management of the proceeding is the determination of whether or not the defendant is a person with impaired capacity. That question must be urgently resolved.

[20] Accordingly, I will order the proceeding be adjourned to a date to be fixed before me for the determination of the following issues:

• (a) Whether the defendant is a person with impaired capacity at the present time so that any further step in the proceedings may only be taken with the leave of the court pursuant to UCPR 72;
• (b) If such leave is necessary, whether it should be granted and, if so, on what terms, including in relation to the appointment of a litigation guardian for the defendant.