SUPREME COURT OF QUEENSLAND
CITATION:
Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170
PARTIES:
LISA MAREE MCLAUGHLIN AS LITIGATION GUARDIAN FOR ANTHONY ROY BARR
(applicant)
v
AMALGAMATED PROPERTY MAINTENANCE PTY LTD
ABN 62 093 139 514(respondent)
FILE NO/S:
BS No 4309 of 2019
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
12 June 2020
DELIVERED AT:
Brisbane
HEARING DATE:
4 June 2020
JUDGE:
Williams J
ORDER:
1. The plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act 1978 (Qld) so as to require a sanction of the settlement.
2. The plaintiff does not have an impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum.
3. There be no order as to costs.
CATCHWORDS:
HEALTH LAW – MENTAL HEALTH GENERALLY – GENERAL LAW AFFECTING PERSONS WITH MENTAL ILLNESS OR IMPAIRED CAPACITY – CONDUCTING LEGAL PROCEEDINGS – COMPROMISE – where the parties reached a settlement agreement – where the applicant suffered from PTSD, major depressive disorder and alcoholism – whether applicant is a “person under a legal disability” – whether the applicant has an impaired capacity regarding a “financial matter” or a “legal matter” as defined by the Guardianship and Administration Act 2000 (Qld) – whether a compromise of action should be sanctioned under s 59 of the Public Trustee Act 1978 (Qld)
Guardianship and Administration Act 2000 (Qld)
Public Trustee Act 1978 (Qld), s 59Hewitt v Bayntun & Allianz Australia Insurance Ltd [2015] QSC 250, followed
Morris v Clair [2004] QSC 127, followed
COUNSEL:
DJ Murphy for the plaintiff/applicant
SOLICITORS:
Sciaccas Lawyers for the plaintiff/applicant
Mullins Lawyers for the defendant/respondent
This is an application on behalf of the plaintiff, by his litigation guardian, for the following declarations and orders that:
(a)the plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act 1978 (Qld) (Public Trustee Act);
(b)the settlement of the plaintiff’s claim does not require a sanction of the Court or Public Trustee as prescribed by s 59(1) of the Public Trustee Act;
(c)the matter does not require referral to the Queensland Civil and Administrative Tribunal for consideration of the appointment of an administrator or guardian;
(d)the plaintiff does not have impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum; and
(e)there be no order as to costs.
In support of the application, the applicant relies on the following material:
(a)Affidavit of Anthony Roy Barr sworn on 29 May 2020;
(b)Affidavit of Lisa Maree McLaughlin sworn on 29 May 2020;
(c)Affidavit of Conrad Jason Freeman sworn on 29 May 2020; and
(d)Affidavit of Conrad Jason Freeman sworn on 3 June 2020.
The affidavit of Conrad Jason Freeman sworn on 3 June 2020 exhibits at “CJF2” a number of medical reports as follows:
(a)Dr Michael Hagan dated:
(i)10 September 2015;
(ii)29 September 2015;
(iii)25 February 2016;
(iv)1 March 2016;
(v)7 March 2016;
(vi)24 May 2016;
(vii)7…
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- Case
- [2020] QSC 170
- Decision Date
CaseChat Overview and Summary
The Court examined the statutory definitions and considered the evidence provided, including affidavits from the plaintiff and his sister, as well as expert opinions. The evidence demonstrated that while the plaintiff had a history of alcohol dependency and had experienced cognitive impairments, there was no clear impediment to his decision-making capacity at the time of the settlement. The most recent evaluations by a clinical neuropsychologist indicated that the plaintiff could understand the nature and effect of the compromise, make the decision to accept it, and communicate that decision. The Court concluded that the plaintiff was not a “person under a legal disability” and did not have impaired capacity regarding the financial matter of compromising the legal proceeding.
The Court found that the plaintiff was capable of managing the settlement funds and did not require the sanction of the Court for the compromise. The Court ruled that the plaintiff was not a “person under a legal disability” and did not have impaired capacity for the relevant financial matter, thus the settlement did not require sanction under s 59 of the Public Trustee Act. The Court made no order as to costs.
Orders
Orders of the court
1. The plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act 1978 (Qld) so as to require a sanction of the settlement.
2. The plaintiff does not have an impaired capacity regarding a financial matter relevant to receiving, investing and managing the settlement sum.
3. There be no order as to costs.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Ms Anderson provided a final report on 28 May 2020 where she was asked to provide an opinion in relation to the plaintiff’s capacity to “give instructions to settle his claim” and “thereafter manage his settlement funds”. In her most recent report, Ms Anderson was of the opinion that:(a)The plaintiff is “able to understand (and remember) the nature and effect of decisions, engage in the decision making process without direction and communicate those directions.”(b)“Whilst it would be optimal for [the plaintiff] to obtain independent advice, he was able to demonstrate a satisfactory level of knowledge and understanding about the relevant matters during our discussion.”(c)“… there was no clear impediment to decision making” in relation to giving instructions to settle his claim and afterwards to manage his settlement funds.Consideration Consistent with the authorities and the relevant statutory definitions, the question to be determined by the Court is whether the plaintiff has the necessary capacity at the present time. Historically, two issues of concern were identified: the plaintiff’s alcohol dependency and whether he also suffered from a cognitive impairment. It is clear from the evidence that the plaintiff has previously had an alcohol dependence disorder. However, there is evidence that he has participated in an alcohol detoxification program and is receiving ongoing support. His current consumption of alcohol has been drastically reduced. In respect of whether the plaintiff suffered from any cognitive impairments, there is evidence both ways on this issue. In April 2017 Dr Jill Harding-Clark identified cognitive impairments in memory, concentration and attention. However, this assessment was for the particular purpose of the WorkCover rehabilitation process. Dr Harding-Clark was not expressing an opinion about whether those cognitive impairments impaired the plaintiff’s capacity for decision making of financial matters. Professor Whiteford had the opinion, from a psychiatric perspective, that the plaintiff did have an impaired capacity because of his substance abuse and cognitive impairments. However, Professor Whiteford did not undertake his own cognitive testing but relied on the results of Dr Harding-Clark. It is also noted that Dr Andrew Byth concluded, from a psychiatric perspective, that the plaintiff’s cognitive defects could be explained in terms of “high anxiety and depression”. Ms Debbie Anderson, clinical neuropsychologist, twice performed her own cognitive testing on the plaintiff and also expressed an opinion specifically in relation to the capacity of the plaintiff for the types of “matters” that are being considered by the Court on this application. Further, Ms Anderson evaluated the plaintiff on two occasions since he has undergone the detoxification program. These two evaluations are the closest to the present time and therefore the most relevant. Based on the evidence before the Court, and in particular the 2020 evaluations of Ms Anderson and the affidavits of Mr Barr and Ms McLaughlin, I am satisfied that the plaintiff is presently capable of understanding the nature and effect of the compromise, freely and voluntarily making the decision to accept the compromise, and communicating that decision. The plaintiff does not presently have impaired capacity for the “matter” of compromising the legal proceeding. Accordingly, the plaintiff is not “a person under a legal disability” as defined in s 59(1A) of the Public Trustee Act so as to require a sanction of the settlement.