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SUPREME COURT OF QUEENSLAND
Hyytinen v Palmer & Anor  QSC 240
SARI KATRIINA HYYTINEN
MARC ANTHONY PALMER
(first defendant/ respondent)
RACQ INSURANCE LIMITED
ACN 009 704 152
(second defendant/ respondent)
SC No 291 of 2020
Supreme Court at Cairns
DELIVERED EX TEMPORE ON:
22 July 2020
22 July 2020
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – DECLARATIONS – OTHER MATTERS – where the plaintiff/ applicant’s personal injury claim was settled at a compulsory conference – where there was limited material which cast doubt on the plaintiff/ applicant’s capacity – where a term of the settlement required, inter alia, the Supreme Court’s sanction – where the plaintiff/ applicant brought an application for sanction but argued that the application should be dismissed – where the plaintiff/ applicant invited the Court to give ex tempore reasons that reflected a factual finding the plaintiff/ applicant did in fact have capacity – where the applicant adopted this approach out of fear there was no proper contradictor for the purposes of a declaratory order – whether the Court should entertain an application brought by an applicant that seeks the application be dismissed – whether there is a contradictor for the purposes of granting declaratory relief
Public Trustee Act 1978 (Qld) s 59(1)
Civil Proceedings Act 2011 (Qld) s 10
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; 59 A Crim R 255; 66 ALJR 271; 106 ALR 11, considered
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, applied
Barr v Amalgamated Property Maintenance Pty Ltd  QSC 170, considered
IMF (Australia) Ltd v The Sons of Gwalia Limited (2004) 211 ALR 231;  FCA 1390, cited
Re Queensland Police Credit Union Ltd (2013) 279 FLR 420;  QSC 273, applied
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd  2 AC 438, considered
Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015)
M Grant-Taylor QC for the plaintiff/ applicant
M Husband (sol) for the first and second defendants/ respondents
Kahler Lawyers for the plaintiff/ applicant
Jensen McConaghy Lawyers for the first and second defendants/ respondents
HIS HONOUR: The applicant’s personal injuries claim before this Court has been settled at a compulsory conference. The terms of settlement included a clause alluding to the possibility of “the event of a finding that the plaintiff has an impaired capacity for a financial matter”.
The perception of such a possibility appears to have had a tenuous foundation. Nonetheless, the terms of settlement commence with this introductory clause:
“Subject to the sanction by the Queensland Supreme Court or a declaration of capacity by QCAT, the matter is settled on the following terms…”
The inclusion of this form of words regrettably made it necessary, in effect, for the applicant plaintiff to enlist the guidance of the Courts, lest, contrary to the applicant’s view, she is under a disability such as would require this Court to sanction the settlement – see s 59(1) Public Trustee Act 1978 (Qld). That guidance is sought via an application for alternate relief, namely a sanction or declarations.
The respondents do not resist the application or take any point about the declarations being sought from this Court, rather than in a separate application before QCAT, as the settlement terms inefficiently contemplated. The real issue in the application goes to the proper mechanism for relief.
The underlying merits of the application are tolerably clear. In summary, the only evidence suggestive of any issue with capacity is what is fairly described as a throwaway line in a report of Dr Derek Lovell, consultant psychiatrist, to the effect, “I believe she would require assistance in managing any financial award.” The same observation might be made of many people who do not lack any legal capacity but are not particularly good with their money. But even if the comment were intended to mean that the applicant lacks capacity, such a view is convincingly contradicted by the preponderance of other evidence relevant to the point. On the whole of the evidence, I readily conclude the applicant plaintiff does not have impaired capacity regarding a financial matter and is not a person under a legal disability.
Wary that she did not have an active contradictor, the applicant was concerned as to whether declarations giving effect to such conclusions were the proper form of relief. This and, indeed, the opening clause of the settlement agreement, prompted the alternative course within the application of applying for a sanction. The difficulty with such an application is that the party applying for the orders did so with the admitted intention of arguing that the orders should not be made and that the application should be dismissed. This was evidently done in the hope that I would give short reasons exposing my conclusion on the merits, as indeed I already have.
I accept there is good faith motivating such an approach, but the orders sought are not genuinely sought. I am reluctant to conclude that good intentions are an answer to my concern that it would be an abuse of the Court’s process to entertain an application the applicant brought and continued with no intention of arguing in support of and, rather, intending all along that it be dismissed.
I need not decide that point because the alternative remedy sought, declarations, present as a viable form of relief. I note it was the form of relief sought and granted by Williams J in similar circumstances in Barr v Amalgamated Property Maintenance Pty Ltd  QSC 170. The applicant properly drew my attention to the fact that there, as here, there was a defendant respondent who appeared but made no substantive submissions.
The applicant here noted that decision made no reference to the principle that a declaration should not be made if there is no contradictor. As authorities for that principle, the applicant cited Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd  2 AC 438 at 448 and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 596.
The rationale behind the principle is said to be “not merely to ensure that the Court will be provided with all materials but also that absent a contradictor there is no person to be bound by the relief sought” – per French J, as he then was, in IMF (Australia) Ltd v The Sons of Gwalia Limited (2004) 211 ALR 231 at 244 .
Section 10(2) Civil Proceedings Act 2011 (Qld) provides, in reference to the Supreme Court only:
“The court may hear an application for a declaratory order only and may make a declaratory order without granting any relief as a result of making the order.”
That section is in similarly broad terms to s 10 Equity Act 1901 (NSW). Of that section, Gibbs J noted in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 437–8:
“It is neither possible nor desirable to fetter the broad discretion given by s. 10 by laying rules as to the manner of its exercise. It does, however, seem to me that the Scottish rules summarised by Lord Dunedin in Russian Commercial and Industrial Bank v The British Bank for Foreign Trade should, in general, be satisfied before the discretion is exercised in favour of making a declaration:
‘The question must be a real, and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.’”
In the above quoted words by Lord Dunedin, when speaking of the need for a contradictor, his Lordship appears to have been speaking of a person with sufficient interest to give the person standing to oppose, not necessarily a person who, in fact, chooses to oppose.
I am fortified in that view by the Federal Court’s decision in Australian Competition and Consumer Commission v MSY Technology Pty Ltd (2012) 201 FCR 378, where the Court held it had power to order a declaration when a party who has an interest to oppose the declaratory relief sought, nonetheless, decides not to oppose it. The Court observed the participation of a party with an interest to oppose the declaratory relief sought meant there was a proper contradictor. It reasoned, at 387:
“There was no want of power to grant declaratory relief. Rather, the question was whether, in light of the events which had transpired, which relevantly included a lack of any continued opposition to the declaratory relief sought, that relief ought still be granted as a matter of discretion.”
That decision was referred to by McMurdo J, as he then was, in Re Queensland Police Credit Union Ltd (2013) 279 FLR 420. His Honour there concluded he had jurisdiction to make the declaration sought, despite no party other than the applicant appearing. ASIC had been served with the application but did not appear. It had a theoretical interest in opposing the application as the agency responsible for prosecuting breaches of provisions of a kind the applicant sought by the declaration to establish had not occurred. His Honour concluded at 424–5:
“Therefore ASIC has a ‘true interest to oppose the declaration sought’, because of its statutory role or roles in connection with a potential prosecution. The fact that ASIC has chosen to express no view about the merits of the application does not prevent it from being a proper contradictor.”
The present case is not the occasion to revisit whether the existence of a contradictor is always a jurisdictional prerequisite for the making of a declaration, as distinct from an issue informing the discretion whether a declaration should be made (as to the latter, see Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies (LexisNexis, 5th ed, 2015) at 633 [19-235]). That is because a contradictor clearly does exist here, has notice of the application and, indeed, appears. That the contradictor, in the form of the respondent defendants, does not oppose the declarations, is no obstacle because the jurisdictional principle goes to the existence of a contradictor, not the position taken by the contradictor.
Of course, there will be cases where a contradictor’s absence of opposition will cause a Court to take greater than usual care before exercising the discretion to make a declaration. This is not one of them. The case is a clear one. I should make the declarations sought.
I order, as per the amended draft order signed by me and placed with the papers.
- Published Case Name:
Hyytinen v Palmer & Anor
- Shortened Case Name:
Hyytinen v Palmer
 QSC 240
22 Jul 2020
- Selected for Reporting: