Beak v Merrett

[2022] QDC 239

DISTRICT COURT OF QUEENSLAND

CITATION: 

Beak v Merrett [2022] QDC 239

PARTIES: 

ELWYN BEAK
(Applicant)

v

BEVERLEY LYNETTE MERRETT  
(Respondent)

FILE NO:

03/22

DIVISION:

Civil

PROCEEDING:

Application  

ORIGINATING COURT: 

Gladstone District Court

DELIVERED ON:

6 October 2022 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE: 

6 October 2022

JUDGE:

Porter KC DCJ

ORDER:

1. Declaration that the Respondent, Beverly Lynette Merrett, is a person with impaired capacity for the purposes of conducting the proceedings under Rule 72(1)(a) UCPR.

2. The application for a freezing order under Rule 260A UCPR is dismissed together with the ancillary orders sought under Rule 260B UCPR.

3. The proceedings be transferred to the District Court of Queensland at Brisbane in accordance with Rule 39(2) UCPR.

4.   Any further applications be listed in consultation with the Associate to Porter KC DCJ.

5.   Liberty to apply with three days’ notice.

6.   No order as to Costs.

CATCHWORDS:

CIVIL PROCEDURE – CONDUCTING LEGAL PROCEEDINGS BY OR AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – Where the plaintiff applies for the appointment of a litigation guardian for the defendant – Whether the  defendant is a person with impaired capacity – Whether the proceeding should be referred to the Queensland Civil and Administrative Tribunal for determination of the defendant’s legal capacity.

COUNSEL:

F. Marconi for the Applicant

SOLICITORS:

OMB Solicitors for the Applicant

RESPONDANT:

Ms C. Ward, daughter of the Respondent, was granted leave to appear for the Respondent

1. I have before me, amongst other things, an application by the applicant Mr Beak, executor of the estate of his father, for the appointment of a litigation guardian for the defendant respondent in these proceedings, Ms Beverley Lynette Merrett.

2. The necessary statutory pre-condition to the appointment of a litigation guardian is that, under Rule 93(1) of the Uniform Civil Procedure Rules 1999, Ms Merrett is a person under a legal incapacity. That expression is defined in the way explained by Justice Margaret Wilson in Plumley v Moroney [2014] QSC 3 as, relevantly to this case, being a person with impaired capacity. That is defined relevantly for this matter anyway, as, “a person not capable of the decisions required of a litigant for conducting proceedings”. [1]

   [1] At [27] to [35]

3. The plaintiff, Mr Beak, has had concerns about that matter for some time in respect of Ms Merrett.  The suggestion that Ms Merrett might not have that capacity was first raised by her then solicitors on the record, Results Legal, some months ago.  Ultimately, a report was obtained from a Dr Sayani in August this year, which, though not decisive, described Ms Merrett as a person with all the hallmarks of a very significantly reduced cognitive capacity as a result of Alzheimer’s disease and possibly other cognitive decline conditions related to old age. 

4. Dr Sayani noticed that, on instructions from the family, there was a noticed decline in ability to remember recent conversations, important dates and appointments over the last six months.  The difficulties described by the doctor’s report provide…