UCPR: 72, 93, 95, 367 & 390
A useful discussion of the criteria for appointment of a litigation guardian and whether evidence can be given at trial by affidavit rather than orally.
Margaret Wilson J
Applications for leave to proceed and the appointment of a litigation guardian
 Rule 72(1) of the UCPR provides –
“72 Party becomes bankrupt, person with impaired capacity or dies during proceeding
(1) If a party to a proceeding becomes bankrupt, becomes a person with impaired capacity or dies 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.”
 The UCPR are a statutory instrument made under the Supreme Court of Queensland Act 1991 (Qld). Section 37 of the Statutory Instruments Act 1992 (Qld) provides (relevantly) that words or expressions used in a statutory instrument have the same meanings as they have under the act under which the statutory instrument was made.
 “Person with impaired capacity” is defined in the dictionary in schedule 5 to the Supreme Court of Queensland Act 1991 as follows –
“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.”
 In Thomson v Smith Muir J (with whom McPherson JA agreed) considered this definition of “person with impaired capacity”, and said –
“ The concept of ‘impaired capacity’ concerns a person’s ability to make decisions which must be made in the course of litigation. The existence of a condition or character trait which affects the quality or timeliness of such decisions would not establish ‘impaired capacity’ unless its extent was so gross as to compel the conclusion that the person was relevantly incapacitated. Imprudence or defective judgment, even if resulting from an obsession about the litigation or some aspect of it, normally would not constitute ‘impaired capacity’. The primary judge was entitled, on the evidence before him, not to find ‘impaired capacity’ on the part of the appellant.”
 Thus, the plaintiff needs leave to proceed if she has become incapable of making the decisions required of a litigant for conducting the proceeding.
 Whatever the correct diagnosis of the plaintiff’s condition, I am satisfied that her mental state is such that she is now incapable of making such decisions. In reaching that conclusion, I have relied on what her treating psychiatrist Dr Slack said in his report of 2 July 2013 about the deterioration in her condition and her non-response to treatment, as well as on what Dr Byth said about her capacity in his report of 13 August 2013. As I have noted, Dr Chalk did not address the question of capacity in his report of 9 May 2013.
“93 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.
95 Appointment of litigation guardian
(2) If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian.”
 A “person under a legal incapacity” is defined in the dictionary in schedule 5 to the Supreme Court of Queensland Act 1991 as (relevantly) “a person with impaired capacity”. The plaintiff is, in my view, a person with impaired capacity; thus she is a person under a legal incapacity. In my view her interests require the Court to appoint a litigation guardian. Her mother has consented to act in that role.
 In all the circumstances, I decline to give the direction sought on the material presently before the Court. I think there needs to be a staged approach to the form in which the plaintiff is to give her evidence in chief. By analogy to directions sometimes given in commercial cases in this Court, the plaintiff should be directed to provide a list of topics on which she proposes to give evidence, and summaries of her evidence on those topics. Further directions should then be sought, to identify those topics on which she might give evidence in chief by affidavit, and those on which she must give evidence orally, and limitations (if any) on cross-examination and re-examination on each topic. Consideration might also be given to requiring the plaintiff to file an affidavit by the person who assisted her in preparing her affidavit, describing the process by which it was prepared.
Brisbane Barrister – David Cormack