Till v Nominal Defendant

Case [2010] QSC 121


SUPREME COURT OF QUEENSLAND

CITATION:

Till v Nominal Defendant [2010] QSC 121

PARTIES:

PETER TILL

Plaintiff

And

NOMINAL DEFENDANT

Defendant

FILE NO/S:

S73 of 1997

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Mackay

DELIVERED ON:

22 April 2010

DELIVERED AT:

Supreme Court Mackay

HEARING DATE:

12 April 2010

JUDGE:

McMeekin J

ORDER:

1. Order the question of the plaintiff’s capacity to bring the proceedings pending in the Supreme Court numbered S73 of 1997 be referred to the Queensland Consumer and Administration Tribunal for determination.

2. Direct that the Registrar of the Court serve on the Registrar of the Queensland Consumer and Administration Tribunal:

A copy of these reasons;(a)    

a transcript of the proceedings of 2 September 2009; (b)   

copies of Exhibits 24, 25 and 26 in the proceedings; and(c)    

a copy of the affidavit of Stephen Patrick Byrne filed 26 March 2010.(d)   

CATCHWORDS:

MENTAL HEALTH – LEGAL PROCEEDINGS BY AND AGAINST MENTALLY ILL AND OTHER PROTECTED PERSONS – where a party to a proceeding may be a person with impaired capacity – where trial adjourned to determine the plaintiff’s capacity to give instructions – where plaintiff refused to be psychiatrically examined – whether the plaintiff should be referred to the Queensland Civil and Administrative Tribunal for the purpose of determining his capacity. 

Guardianship and Administration Act 2000 (Qld), s 12, s 81(1)(a), s 82, s 146, s 240, s 241(1)

Public Trustee Act 1978 (Qld), s 59

Queensland Civil and Administrative Tribunal Act 2009, s 10

Uniform Civil Procedure Rules 1999 (Qld), r 72(1)

H v Nominal Defendant [1997] QSC 233

McDermott v Suncorp & Ors – 4670/06 – 11 February 2008

Till v QPS [2008] QCA 304

VJC v NSC [2005] QSC 068

COUNSEL:

SP Byrne (solicitor) for the plaintiff

J Power (solicitor) for the defendant

SOLICITORS:

McKays for the plaintiff

Walsh Halligan Douglas for the defendant

  1. McMeekin J: Peter Till is the plaintiff in proceedings that are part heard. On 2nd September 2009 I adjourned the trial, then into its third day, on the application of Mr Till’s counsel, Mr Mullins. Mr Mullins had become concerned through the trial that his client lacked the necessary capacity to provide him with instructions. I stayed the proceedings pending an enquiry into Mr Till’s capacity pursuant to r 72(1) of the Uniform Civil Procedure Rules 1999 (Qld).

  1. If Mr Till’s capacity is impaired then a litigation guardian must be appointed to enable rational decisions to be made in the conduct of the litigation.

  1. Mr Till has since refused to cooperate with any psychiatric examination.

  1. Matters have not progressed. The Public Trustee has been approached by Mr Till’s solicitors but has declined to become involved without a specific order.

  1. Mr Till’s solicitors have now applied, orally, to have Mr Till transferred to the Queensland Consumer and Administration Tribunal (QCAT) for the purpose of that body investigating whether Mr Till has capacity to provide instructions to enable the proceedings before me to proceed. The application is…

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AGLC
Till v Nominal Defendant [2010] QSC 121
Case
[2010] QSC 121
Decision Date

CaseChat Overview and Summary

The case of Till v Nominal Defendant involved a dispute concerning the mental capacity of the plaintiff, who was the sole applicant in a proceeding in the Supreme Court. The defendant sought to have the plaintiff's capacity to bring the proceeding assessed by the Queensland Civil and Administrative Tribunal. The plaintiff had previously refused to be psychiatrically examined and had not participated in the proceedings in a meaningful way. The matter was heard in the Supreme Court of Queensland, where the presiding judge considered the relevant legal issues.

The primary legal issue before the court was whether the plaintiff's capacity to bring the proceeding should be referred to the Queensland Civil and Administrative Tribunal for determination. The court had to balance the plaintiff's right to access the courts against the need to ensure that the proceedings were fair and just. The court also had to consider the plaintiff's right to refuse psychiatric examination and the potential impact of his impaired capacity on the proceedings.

The court found that the plaintiff's refusal to be psychiatrically examined and his lack of participation in the proceedings raised concerns about his capacity to bring the proceeding. The court noted that the plaintiff's behaviour in the proceedings suggested that he may have impaired capacity and that this could impact on his ability to give instructions to his legal representatives. The court held that it was appropriate to refer the question of the plaintiff's capacity to the Queensland Civil and Administrative Tribunal for determination. The court also directed that certain documents and transcripts be served on the Tribunal to assist in its determination.

The court made an order referring the question of the plaintiff's capacity to bring the proceeding to the Queensland Civil and Administrative Tribunal for determination. The court also directed that certain documents and transcripts be served on the Tribunal to assist in its determination. The court did not make any further orders in relation to the proceeding itself, as it considered that the question of the plaintiff's capacity needed to be resolved before any further steps could be taken.

Orders

Orders of the court

1. Order the question of the plaintiff’s capacity to bring the proceedings pending in the Supreme Court numbered S73 of 1997 be referred to the Queensland Consumer and Administration Tribunal for determination.

2. Direct that the Registrar of the Court serve on the Registrar of the Queensland Consumer and Administration Tribunal:

A copy of these reasons;(a)

a transcript of the proceedings of 2 September 2009; (b)

copies of Exhibits 24, 25 and 26 in the proceedings; and(c)

a copy of the affidavit of Stephen Patrick Byrne filed 26 March 2010.(d)

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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