EJR & Anor v EFHR & Ors [2003] QCA 276

SUPREME COURT OF QUEENSLAND CITATION: EJR & Anor v RFHR & Ors [2003] QCA 276 PARTIES: EJR (first appellant) GJB (second appellant/respondent) v RFHR (first respondent/first applicant) MER (second respondent/second applicant) ADULT GUARDIAN (third respondent) PUBLIC TRUSTEE OF QUEENSLAND (fourth respondent) EJR (first appellant) GJB (second appellant) v RFHR (first respondent/first respondent) MER (second respondent/second respondent) ADULT GUARDIAN (third respondent/third respondent) PUBLIC TRUSTEE OF QUEENSLAND (fourth respondent) FILE NO/S: Appeal No 5108 of 2002 Appeal No 89 of 2003 SC No 372 of 2002 DIVISION: Court of Appeal PROCEEDING: Application to Strike Out General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 11 July 2003 DELIVERED AT: Brisbane HEARING DATE: 2 July 2003 JUDGES: Davies, Williams and Jerrard JJA Judgment of the Court -- 1 of 8 -- 2 ORDER: 1. On Appeal No 5108 of 2002: (i) Appeal struck out with costs (ii) Prohibit publication of the names of the parties to the appeal, and prohibit perusal or copying of the court file, other than by a party, without the leave of a judge 2. On Appeal No 89 of 2003: (i) Appeal dismissed with costs (ii) Prohibit publication of the names of the parties to the appeal, and prohibit perusal or copying of the court file, other than by a party, without the leave of a judge CATCHWORDS: PROCEDURE – COSTS – DEPARTING FROM THE GENERAL RULE – CONDUCT OF PARTIES – MISCONDUCT, ETC – IN PROCEEDINGS – VEXATIOUS PROCESS AND ISSUES – where appellant in Appeal No 89 of 2003 appealed decision of Guardianship and Administration Tribunal to Supreme Court – where sought orders based on evidence not before the Tribunal – whether it was frivolous for the appellant to raise those issues at that time – whether costs should have been ordered against appellant on that basis APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – SECURITY FOR COSTS – where respondent in Appeal No 5102 of 2002 ordered to pay security for costs – where failed to comply with this order – where applicants applied for the appeal to be struck out – where respondent conceded he was unable to pay – whether appeal should be struck out Guardianship and Administration Act 2000 (Qld), s 165 COUNSEL: The first applicant in Appeal No 5108 of 2002 and the first respondent in Appeal No 89 of 2003 appeared on his own behalf and on behalf of the second applicant in Appeal No 5108 and the second respondent in Appeal No 89 of 2003 The respondent in Appeal No 5108 of 2002 and the second appellant in Appeal No 89 of 2003 appeared on his own behalf The first appellant in Appeal No 89 of 2003 appeared on her own behalf M W Jarrett for the third respondent in Appeal No 89 of 2003 SOLICITORS: The first applicant in Appeal No 5108 of 2002 and the first respondent in Appeal No 89 of 2003 appeared on his own behalf and on behalf of the second applicant in Appeal No 5108 and the second respondent in Appeal No 89 of 2003 -- 2 of 8 -- 3 The respondent in Appeal No 5108 of 2002 and the second appellant in Appeal No 89 of 2003 appeared on his own behalf The first appellant in Appeal No 89 of 2003 appeared on her own behalf Adult Guardian for the third respondent in Appeal No 89 of 2003 [1] THE COURT: On the hearing the court had before it Appeal No 89 of 2003, and applications in Appeal No 5108 of 2002. The issues raised at the hearing can only be appreciated after background circumstances have been set out. Because of the multiplicity of parties the factual position is clearer when names are used. In the proceedings at first instance orders protecting confidentiality were made and this court was asked to make similar orders with respect to the proceedings on appeal. In consequence the initials of the parties rather than full names will be used. [2] The Public Trustee of Queensland was named as a respondent in Appeal No 89 of 2003 but no orders affecting that party were sought. The court was notified that in the circumstances the Public Trustee would not be appearing on the hearing of the appeal. In the circumstances that was an entirely appropriate attitude to adopt. [3] EJR was born on 26 June 1960, and now would be aged 43. For a number of years she has suffered from schizophrenia. She was married for a time and a daughter A was born in 1988. Pursuant to an arrangement then made, that child has resided with EJR’s parents, RFHR and MER, since. In about 1997 EJR commenced living with GJB as a flatmate and material describes her now as the fiancée of GJB. [4] In 2001 GJB applied to the Guardianship and Administration Tribunal, constituted pursuant to the Guardianship and Administration Act 2000 (the Act), for an order that he be appointed with RFHR as guardian of EJR. That matter was heard by the Tribunal on 18 December 2001 and for reasons which it published it appointed RFHR guardian of EJR for all personal matters and administrator for EJR for all financial matters. There were consequential orders made which need not be set out in detail. [5] From that decision GJB appealed to the Supreme Court; s 164 of the Act provided for an appeal as of right on a question of law and with leave on other issues. After directions hearings, and some ancillary hearings before other judges, the appeal (designated S 372 of 2002) was heard over two days by Fryberg J. His reasons for judgment were delivered on 10 May 2002. Those reasons noted that at the outset of the hearing RFHR informed the court that he was no longer willing to act as guardian and administrator and would co-operate in any way necessary to have the Tribunal order varied accordingly. Counsel for the Adult Guardian pointed out that the appeal did not demonstrate any error of law on the part of the Tribunal, but Fryberg J thought the most expedient way of dealing with the matter, given the attitude of RFHR, was to allow the appeal, set aside the orders of the Tribunal, and remit the matter to the Tribunal for further consideration. That was an appropriate attitude for the court to take. [6] But by the appeal GJB raised a number of other issues which were canvassed at some length on the hearing of that appeal. Fryberg J then turned to those matters in -- 3 of 8 -- 4 his reasons. GJB sought an order that he be appointed guardian and administrator of EJR in respect of certain nominated matters pursuant to the court’s inherent jurisdiction. Fryberg J correctly concluded that on the hearing of the appeal he ought not make a determination in the exercise of the court’s original jurisdiction which would require the reception of evidence not before the Tribunal. [7] The next issue raised was based on the perception of GJB that he would not get a fair hearing from a Tribunal constituted by a member or judge “who has attended a Catholic church or is of Jewish descent”. It would appear that argument on that issue took up quite a deal of time on the hearing of the appeal. Fryberg J quite properly concluded that on the material and given the nature of the proceedings before him there was no justification for making a declaration that a reasonable apprehension existed that GJB would not get a fair hearing. [8] Another issue which appears to have occupied a deal of time on the hearing of the appeal related to the contention of GJB that a contract had existed since May 1990 between EJR and her parents with respect to the upbringing of A, and that the court should make a declaration that such contract existed and as to its terms. Fryberg J correctly concluded that that was not a declaration which he could or should make in the circumstances. [9] The reasons for judgment also set out at some length why Fryberg J concluded that he ought not appoint GJB as guardian and administrator of EJR, but should refer the matter back to the Tribunal. [10] RFHR and MER then applied for costs. Section 165 of the Act provides as the basic rule that each party to an appeal should bear that party’s own costs, but the court is empowered to make an order for the payment of costs if it considers “the appeal was frivolous or vexatious”. It was on the latter basis that the order for costs was sought. The reasons made it clear that the costs sought were those reserved on the hearing of an ancillary application on 1 March 2002 and part of the costs of the two day hearing of the substantive appeal. Fryberg J then gave reasons for concluding that EJR and GJB should pay one half of the costs of RFHR and MER of the application heard l March 2002 and costs of the hearing of 10 May 2002 “assessed on the basis of a hearing of less than two hours”. [11] Fryberg J noted that in a strict sense the appeal had been successful; the order of the Tribunal had been set aside and the matter remitted to it. But that was simply because the order of the Tribunal was rendered ineffectual by the decision of RFHR that he no longer wished to continue acting in accordance with terms of the order. The reasons then dealt with each of the other issues which had prolonged the hearing of the appeal. Fryberg J came to the conclusion that each of the other matters answered “the description frivolous”. It was on that basis that he made the order for costs. [12] EJR and GJB then on 5 June 2002 filed a Notice of Appeal to this court against the orders of 10 May 2002; that appeal was designated 5108 of 2002. Essentially by that appeal the appellants contended that Fryberg J erred in not making the other orders sought on the hearing of the appeal; the orders sought from the Court of Appeal included a declaration as to the terms of the contract alleged to have existed since 1990, and an order that GJB be appointed guardian and administrator of EJR. Consequential, and other, orders were sought which it is not necessary to detail. -- 4 of 8 -- 5 [13] By application filed 19 July 2002 the appellants sought an order from this court permitting the amendment of the Notice of Appeal to include a number of additional grounds and incorporate some proceedings in the Family Court of Australia. Again it is not necessary to set out those matters in detail. That application, for reasons which will later appear, has not formally been listed for hearing. [14] The next relevant proceeding was an application by the Adult Guardian, RFHR and MER that the appellants (EJR and GJB) provide security with respect to Appeal 5108/02 and for other relief. That application was heard by Moynihan SJA on 12 September 2002, and he published reasons on 1 November 2002 for making an order for security. It appears that his Honour indicated on 12 September 2002 the terms of the order he proposed making. GJB was ordered to provide security in the sum of $5,000.00 with respect to costs which may be awarded to RFHR and MER, and a further $5,000.00 as security for costs which may be awarded to the Adult Guardian upon the hearing of the substantive appeal. Further, by that order Moynihan SJA ordered pursuant to r 95 of the UCPR that the Adult Guardian be appointed Litigation Guardian for EJR “for the purposes of the First Applicant’s appeal in the Court of Appeal No 5108 of 2002 and for the purposes of GJB’s application number S372 of 2002”. [15] In the course of his reasons Moynihan SJA said: “It is impossible to usefully summarise GJB’s argument in support of his application and I won’t attempt to do so. In so far as those arguments are in writing, they are on the file, in so far as they were oral they have been transcribed.” His Honour then went on to say that he did not intend to canvass every aspect of the issues raised before him but concluded that the Adult Guardian should in the circumstances be appointed Litigation Guardian. In so doing he referred to medical evidence and other material relevant to the capacity of EJR to prosecute the appeal without a Litigation Guardian. [16] He then turned to consider the application for security for costs and referred to the recent decision of this Court in Natcraft P/L & Anor v Det Norske Veritas & Anor [2002] QCA 241. He concluded that applying the appropriate considerations an order for security should be made. [17] Undoubtedly in the light of the intimation made by Moynihan SJA on 12 September 2002 as to the order which he would make, GJB filed an application to this Court on 15 October 2002 in Appeal No 5108 of 2002 seeking a variety of orders, including an order “that the operation of the orders of the Honourable Mr Justice Moynihan be suspended until further order of a Judge of Appeal.” [18] It appears that the Registrar of the Court of Appeal considered that, because of the stay consequential upon the making of the order for security for costs, the applications of 19 July 2002 and 15 October 2002 should not be listed for hearing. [19] Against that background GJB filed three applications in the original proceeding S372 of 2002: 28 October 2002, 22 November 2002, and 5 December 2002. There was a deal of overlap between those three applications. Amongst other orders sought the following are of some relevance for present purposes: (i) an order suspending the operation of the orders of Justice Moynihan; (ii) orders facilitating the hearing of Appeal No 5108 of 2002; -- 5 of 8 -- 6 (iii) an order pursuant to s 253 of the Supreme Court Act 1995 granting leave to appeal against the costs orders made on 10 May 2002; (iv) an order removing the Adult Guardian as Litigation Guardian for EJR; (v) an order suspending the operation of the order of 10 May 2002 insofar as it remitted the matter to the Tribunal; (vi) an order directing the Registrar of the Court of Appeal to list for hearing applications filed 19 July 2002 and 15 October 2002. [20] Those three applications came before Fryberg J on 11 December 2002. For reasons which he published on that day, he gave leave to appeal against his costs order of 10 May 2002, but otherwise refused to make any of the other orders sought by GJB. It is not necessary to set out his published reasons for so concluding. [21] From the order of 11 December 2002 EJR and GJB have appealed to this Court; Appeal No 89 of 2003. That appeal was the appeal primarily listed for hearing before this Court. [22] GJB has not complied with the order to provide security and by application dated 27 June 2003 RFHR and MER have applied for an order that Appeal No 5108 of 2002 be struck out. That application is supported by the Adult Guardian. That application was also listed before the Court at the same time as the hearing of Appeal No 89 of 2003. [23] On the hearing of the appeal, GJB appeared in person, as did EJR; essentially GJB made submissions on behalf of each appellant. Because he was self-represented and because of the confusion created by the numerous applications which had been made to the Court, GJB was permitted to make submissions with respect to the order for security for costs. He was given every opportunity of making submissions as to why he contended that order should be set aside. It should be noted that he conceded that he was not in a position to provide security as ordered. [24] RFHR and MER also appeared in person on the hearing; they made no submissions with respect to Appeal No 89 of 2003 but submitted that their application for the striking out of Appeal No 5108 of 2002 should be granted. The Adult Guardian was represented by counsel and that party’s position was substantially the same as that adopted by RFHR and MER. [25] The submissions of GJB with respect to Appeal No 89 of 2003 indicated that four orders were being sought by the appellants. Firstly, it was contended that Fryberg J erred in refusing to set aside the order of Moynihan SJA appointing the Adult Guardian to be Litigation Guardian for EJR with respect to Appeal No 5108 of 2002. It was submitted that further evidence before Fryberg J in the form of a report by Dr WCW as to the medical condition of EJR dated 17 September 2002 indicated that there was no proper basis for making such an order. Essentially, the doctor in that report said: “On superficial examination on this one occasion it would appear that [EJR] has the ability to handle her own affairs. … I have no information on which to base an opinion of what [EJR] would be like when she is experiencing a mood swing.” It was also submitted that the appointment was against the wishes of EJR and that that in itself was a ground for setting the order aside. -- 6 of 8 -- 7 [26] There does not appear to be any error in the reasoning of Fryberg J in declining to set aside the order in question, nor is there any apparent error in the reasoning of Moynihan SJA in making the original appointment. In any event, for reasons which will become obvious, there is no necessity for this Court to give further consideration to the continued appointment of the Adult Guardian as Litigation Guardian of EJR for purposes of Appeal No 5108 of 2002. [27] The second point raised by GJB was with respect to the refusal of the Registrar to list the applications filed 19 July 2002 and 15 October 2002 for hearing. As GJB was given ample opportunity at the hearing to raise matters contained in those applications, there is no necessity for this Court to make any further finding or make any further order on that matter. [28] The next, and most serious submission, was with respect to the order for costs. When it is appreciated that the original proceeding before Fryberg J was an appeal from the Tribunal, it is obvious that there was no jurisdictional basis for the Supreme Court then making the other orders sought by the then appellant. Fryberg J was clearly justified in coming to the conclusion that it was “frivolous” for the appellant to raise those issues at that time. Making the order in question involved the exercise of a discretion, and no error has been demonstrated with respect thereto. [29] No one disputed the appellant’s other contention, namely that confidentiality orders should be made with respect to the appeal. [30] It follows that Appeal No 89 of 2003 should be dismissed with costs but there should be an ancillary order prohibiting publication of the names of the parties to the appeal, and prohibiting perusal or copying of the court file of this proceeding, other than by a party, without the leave of a judge. [31] In making submissions with respect to the order for security for costs, GJB canvassed at some length the merits of Appeal No 5108 of 2002. As would already be obvious, the Supreme Court had no jurisdiction to deal with appeal S 372 of 2002 other than by setting aside the order of the Tribunal and remitting the matter to the Tribunal for further consideration. The other matters raised by the appellants, the matters the subject of Appeal No 5108 of 2002, were outside the scope of an appeal to the Supreme Court from the Tribunal and Fryberg J was clearly correct in dismissing that part of the claim of the appellants. It follows that Appeal No 5108 of 2002 (whether in its original or proposed amended form) is entirely without merits. It follows that there is no basis for setting aside the order for security for costs. [32] As GJB has not complied with the order for security for costs, there is no ground for refusing to strike out that appeal as requested by the respondents, RFHR, MER and the Adult Guardian. [33] The order of the Court should therefore be Appeal No 5108 of 2002 struck out with costs. [34] The orders of this court should therefore be: 1. On Appeal No 89 of 2003: (i) Appeal dismissed with costs. -- 7 of 8 -- 8 (ii) Prohibit publication of the names of the parties to the appeal, and prohibit perusal or copying of the court file, other than by a party, without the leave of a judge. 2. On Appeal No 5108 of 2002: (i) Appeal struck out with costs. (ii) Prohibit publication of the names of the parties to the appeal, and prohibit perusal or copying of the court file, other than by a party, without the leave of a judge. -- 8 of 8 --