In several published decisions, the Supreme Court of Queensland has considered the question of a person’s “capacity” and in some cases, whether to refer the question of capacity to the Queensland Civil and Administrative Tribunal (QCAT) in circumstances where the person is a party to a civil proceeding before the Court.
An example of when the Court may need to consider the question of a person’s capacity in a civil proceeding is when the proceeding has been settled or compromised by or on behalf of a party who may be a “person under a legal disability” for the purposes of s 59 of the Public Trustee Act 1978 (Qld).1
The Court may also need to consider the question of a person’s capacity when a party to a civil proceeding becomes a person with impaired capacity during the proceeding.2
Who is authorised to conduct legal proceedings for a person with impaired capacity?
In a relevant case, it may be necessary for the Court to consider appointing a litigation guardian under the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) for a person who is found to be under a legal incapacity and who is a party to a civil proceeding.3
Subject to certain limitations set out under rule 94, a person who may be entitled to be a litigation guardian is a substituted decision-maker such as guardians and administrators appointed under the Guardianship and Administration Act 2000 (Qld) (GA Act).4 The Public Guardian and the Public Trustee of Queensland may be appointed as guardians and administrators in a relevant matter and may, in some cases, be entitled to be a litigation guardian.5
The Court has observed that the Public Trustee of Queensland is the appropriate person to be appointed litigation guardian in a matter involving a party under a legal disability and in circumstances where there was no one available to act as litigation guardian. The Court held in Energex Limited v Sablatura6 that the Public Trustee is the appropriate person to be appointed and “nevertheless has the statutory power to refuse appointment”.7
In Attorney-General v SLS8, the Court took steps to ensure that the person with impaired capacity’s interests are adequately protected and referred the issue of capacity and the person’s ability to defend or respond to proceedings before the Court to QCAT.9 In SLS, the Court said there was no individual identified who would be prepared or appropriate to act as a litigation guardian and observed that the Public Guardian may be appointed as a guardian for legal matters and personal matters.10
Appointment of guardians and administrators for adults with impaired capacity
Subject to s 245 of the GA Act, which applies for settlements or damages awards in a civil proceeding, QCAT has exclusive jurisdiction for the appointment of guardians and administrators. The Supreme Court or the District Court may exercise all the powers of the Tribunal under chapter 3 of the GA Act for the appointment of guardians and administrators.11 The GA Act does not affect the Court’s inherent jurisdiction, including its parens patriae jurisdiction and does not affect the Court rules about a litigation guardian for a person under a legal disability.12
The question of whether guardians and administrators should be appointed will, subject to satisfying the requirements for the appointment under s 12 of the GA Act, depend on the “matter”.13
What is a “matter” for the purposes of the Guardianship and Administration Act 2000?
For a “matter”, s 10 of the GA Act identifies the following categories: 14
- Personal matter
- Special personal matter
- Special health matter
- Financial matter.
A “financial matter” includes several matters relating to the person’s financial or property matters.15 A “personal matter” also includes some matters, other than a special personal matter or special health matter, relating to their care, including the “health care, or welfare”.16 A “legal matter” includes a matter relating to, amongst other things, use of legal services to obtain information about the adult’s legal rights, and “bringing or defending a proceeding, including settling a claim, whether before or after the start of a proceeding”.17
The Supreme Court has held that the compromise of a proceeding in which a plaintiff claims damages for personal injuries is a “matter” within the GA Act.18
In a case involving the compromise of a proceeding, the Court said a “legal matter” includes the use of legal services to bring or defend a proceeding, and also settling a claim, whether before or after the start of a proceeding.19
The Court has also held that a “financial matter” relates to an adult’s financial or property matters “and would include recovery of damages, a legal matter relating to that, and the investment of the proceeds of the settlement of a claim”.20
What is impaired capacity for a matter within the meaning of the Guardianship and Administration Act 2000 (Qld)?
Schedule 4 of the GA Act contains definitions for relevant terms including the meaning of “capacity”.
As reflected in ss 7(a), 11 and 11B of the GA Act, a person, who is referred to as the adult, is presumed to have capacity for the matter until the contrary is proven. There are published guidelines to assist persons required to make assessments about the capacity of adults.21
The GA Act also contains a set of principles (the general principles) in s 11B that must be applied by a person, or other entity that performs a function or exercises a power under the GA Act.22
The Supreme Court has held that the general principles “are not fixed rules, but rather considerations which must genuinely be taken into account to the extent appropriate in the circumstances”.23 Further, the starting point is a consideration of the general principles as they apply to the case.24 The Court has also held that a person’s capacity is to be determined at the present time having regard to a particular matter.25
A helpful case that considered the plaintiff’s capacity to prosecute a claim for personal injuries and to compromise the proceedings is Aziz v Prestige Property Service P/L and Anor.26 In Aziz, the Court directed the issue of capacity as being determined on the basis of whether a person had capacity for a particular matter.27 The Court also found that all of the elements of the definition of “capacity” should be considered “to understand the extent of the plaintiff’s impaired decision-making”.28
In Adamson v Enever & Anor29 the Court considered whether the plaintiff is a “person under a legal disability” and whether or not the plaintiff has impaired capacity regarding a financial or legal matter relevant to receiving, investing and managing a settlement sum in relation to a claim for damages arising from a motor vehicle accident.30
Of particular importance about the Court’s findings about capacity in Adamson was the plaintiff’s “existing support network through her family” and that the plaintiff had the benefit of advice and support from others to make a decision about settlement of her claim.31
Applying for the appointment of guardians and administrators under the GA Act
An application may be made to QCAT as provided under s 115 of the GA Act, the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and Queensland Civil and Administrative Tribunal Rules 2009 (Qld). Information about applying for the appointment of guardians and administrators and the Tribunal’s other functions that may be performed under the GA Act and Powers of Attorney Act 1998 (Qld) can be found on the Tribunal’s website.
Footnotes
1 See s 59 of the Public Trustee Act 1978 (Qld) and rule 98 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR).
2 See rule 72 of the UCPR and schedule 5 of the Supreme Court of Queensland Act 1991 (Qld) for the meaning of a “person with impaired capacity”.
3 See rule 93, UCPR.
4 Subject to the terms of appointment, an attorney appointed under an enduring document, may be entitled to be litigation guardian. See the Powers of Attorney Act 1998 (Qld).
5 See s 12, s 7(f) and s 14(2) of the GA Act.
6 [2009] QSC 356. See also Young v Low and QBE Insurance (Australia) Ltd [2022] QSC 235.
7 Energex, cited in Young at [38]; See also Young v Low and QBE Insurance (Australia) Ltd [2022] QSC 235 citing Energex at [38].
8 (2021) 8 QR 128; See also the Public Guardian Act 2014 (Qld).
9 SLS, [79] and [117].
10 SLS, [69].
11 See s 245 of the GA Act; QCAT also has concurrent jurisdiction with the Supreme Court for enduring documents and attorneys under enduring documents GA Act, s 82(2).
12 GA Act, s 240 and s 239.
13 The Human Rights Act 2019 (Qld) also applies when QCAT appoints guardians and administrators, see NJ [2022] QCAT 283.
14 See also schedule 2 of the GA Act that contains definitions of types of matters.
15 GA Act, schedule 2, s 1.
16 GA Act, schedule 2, s 2.
17 GA Act, schedule 2, s 18.
18 Hewitt v Bayton & Allianz Australia Insurance Ltd [2015] QSC 250 [17].
19 Adamson v Enever & Anor [2021] QSC 221, [12].
20 Adamson v Enever & Anor [2021] QSC 221, [12]
21 GA Act, s 250. The Queensland Capacity Assessment Guidelines are published on the Queensland Government website. See also acknowledgement of rights in s 5 and other relevant sections of the GA Act including s 6.
22 GA Act, s 11B. A person making decisions for an adult on an informal basis must apply the general principles in making the decision, s 11B(2). The general principles are also contained in the Powers of Attorney Act 1998 (Qld).
23 Re: OSD; SMA & Anor v FJX & Anor; OSD & Anor v ABJ [2023] QSC 264, [56] citing TJ v Public Trustee of Queensland [2023] QCA 158 at [33].
24 OSD, [57].
25 Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170 [46]; Also see Aziz, [23].
26 [2007] QSC 265.
27 Aziz, [23].
28 Aziz, [65].
29 (2021) 9 QR 33.
30 Adamson, [20].
31 Adamson, [31] and [85].
One Response
A really helpful article – well written and informative