Till v Nominal Defendant

[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 2^nd 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…