BRT - [2012] QCAT 128

CITATION:

BRT [2012] QCAT 128

PARTIES:

BRT

APPLICATION NUMBER:

GAA8762-11

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

21 February 2012

HEARD AT:

Brisbane

DECISION OF:

Mr Ron Joachim, Member

DELIVERED ON:

20 March 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] That the applicants are interested persons for the purpose of bringing an application for declaration of capacity in respect of BRT.

[2] That BRT is directed to undergo an examination by a psychiatrist, preferably Dr X, to determine whether BRT has capacity to instruct lawyers and make decisions about:

§ Initiating the current application before the Queensland Supreme Court against the applicants and SG;

§ Prosecuting the action throughout the Court proceedings;

with particular reference to the definition of capacity as defined in Schedule 4 of the Guardianship and Administration Act 2000.

[3] That BRT make the appointment and advise the registry in writing of the name and address of the assessing psychiatrist when he has made the appointment, and the date of the appointment by 4pm on 13 April 2012.

[4] That BRT provide a copy of his application to the Queensland Supreme Court to the registry by 4pm on 30 March 2012.

[5] That the Registry provide the following documents to the assessing psychiatrist upon being advised of his/her contact details:

§ The definition of capacity;

§ A copy of the application to QCAT, the covering letter and Annexure A;

§ A copy of BRT’s application to the Queensland Supreme Court commencing the litigation;

§ A copy of this order.

[6] That the applicants pay the fees of the assessing psychiatrist.

CATCHWORDS:

Guardianship and administration – Declaration of capacity – Interested party – where applicant stepsons seek a declaration about stepfather’s capacity to bring litigation against them – where stepfather says stepsons wish to frustrate his litigation – whether stepsons have a sufficient and continuing interest in stepfather

Guardianship and Administration Act 2000, ss 114, 115, 126, 140, 146, Schedule 4

EEP, Re [2005] QGAAT 45
MAD, Re [2007] QGAAT 56

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	CM and CB represented by Plastiras Lawyers through Ms A Andric
RESPONDENT:	BRT represented by Hickey Lawyers through Mr Scott Eustace

REASONS FOR DECISION

On 29 September 2011 the Tribunal received an application from Plastiras Lawyers. The application was signed and submitted by Anja Andric, a solicitor from the law firm. It was submitted on behalf of CM and CB who are the applicants. The applicants say that BRT suffers from bipolar disorder, and are seeking a declaration from the Tribunal about his capacity to bring an action in the Supreme Court. They have been unable to obtain a health professional report regarding BRT’s capacity.
BRT has commenced proceedings in the Queensland Supreme Court against the applicants and against SG, a company of which the applicants are the directors.
BRT is represented by Hickey Lawyers. BRT does not consider he lacks capacity for undertaking the action and argues that the applicants who are the sons of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCAT 128
Decision Date: 20 March 2012

CaseChat Overview and Summary

In the case, the applicants, who are the stepsons of BRT, sought a declaration regarding their stepfather's capacity to bring litigation against them. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT), where the applicants argued that BRT, their stepfather, wished to frustrate their efforts to resolve the dispute. BRT, on the other hand, asserted that the applicants were attempting to undermine his litigation capabilities.

The central legal issues before the court involved determining whether the applicants had a sufficient and continuing interest in the matter to warrant a declaration of BRT's capacity. Additionally, the court had to consider whether it was appropriate to order BRT to undergo a psychiatric examination to assess his capacity to manage his legal affairs and to proceed with the litigation against his stepsons.

The tribunal concluded that the applicants indeed had a sufficient and continuing interest in the matter, justifying their request for a declaration. The court emphasised the importance of ensuring that BRT's capacity to conduct his litigation was appropriately assessed. As such, the tribunal ordered that BRT undergo a psychiatric evaluation, with specific reference to the definition of capacity provided in the Guardianship and Administration Act 2000. The applicants were also required to cover the fees associated with the psychiatrist's assessment.

The court issued several orders to facilitate the assessment process, including directing BRT to provide details of the appointed psychiatrist and copies of relevant documents to the registry. The tribunal further mandated that BRT furnish the registry with a copy of his application to the Queensland Supreme Court by a specified deadline. Ultimately, the court's decision underscored the need for a thorough evaluation of BRT's capacity to proceed with litigation against his stepsons.

Orders

Orders of the court

[1] That the applicants are interested persons for the purpose of bringing an application for declaration of capacity in respect of BRT.

[2] That BRT is directed to undergo an examination by a psychiatrist, preferably Dr X, to determine whether BRT has capacity to instruct lawyers and make decisions about:

§ Initiating the current application before the Queensland Supreme Court against the applicants and SG;

§ Prosecuting the action throughout the Court proceedings;

with particular reference to the definition of capacity as defined in Schedule 4 of the Guardianship and Administration Act 2000.

[4] That BRT provide a copy of his application to the Queensland Supreme Court to the registry by 4pm on 30 March 2012.

[5] That the Registry provide the following documents to the assessing psychiatrist upon being advised of his/her contact details:

§ The definition of capacity;

§ A copy of the application to QCAT, the covering letter and Annexure A;

§ A copy of BRT’s application to the Queensland Supreme Court commencing the litigation;

§ A copy of this order.

[6] That the applicants pay the fees of the assessing psychiatrist.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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