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RACQ Insurance Limited v Kitt[2015] QCATA 158

RACQ Insurance Limited v Kitt[2015] QCATA 158


RACQ Insurance Limited v Kitt [2015] QCATA 158


RACQ Insurance Limited



Will Kitt

Robyn Kitt



APL034 -15




22 April 2015




Justice Carmody

Senior Member Stilgoe OAM


11 August 2015




  1. Leave to appeal refused.


APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where insurer of defendant in personal injury action not a party to application for declaration of capacity of plaintiff – whether tribunal obliged to notify insurer – whether insurer an active party – whether insurer an interested party – whether insurer an eligible party – whether insurer should be given leave to appeal – whether tribunal decision usurped jurisdiction of the Supreme Court

Guardianship and Administration Act 2000 (Qld) ss 6, 10, 11, 11A, 115, 118, 119, 123, 163, Schedule 2

Dearman v Dearman (1908) 7 CLR 549

Fox v Percy (2003) 214 CLR 118

Pickering v McArthur [2005] QCA 294

Chambers v Jobling (1986) 7 NSWLR 1



C Job of Counsel, instructed by Quinlan Miller & Treston


P Feely of Counsel, instructed by McInnes Wilson & Jensen


  1. [1]
    Will Kitt[1] is a young man who was injured in a motor vehicle accident in February 2012. He filed proceedings in the Supreme Court of Queensland against Jan Clash[2] claiming compensation for those injuries. RACQ Insurance Limited is Ms Clash’s insurer.
  2. [2]
    On 18 September 2014, Robyn Kitt[3], Mr Kitt’s mother and litigation guardian, applied to the tribunal for a declaration about capacity. The application was in two parts: did Mr Kitt have capacity to give instructions about his personal injuries action; and did Mr Kitt have capacity to administer any proceeds he received from the litigation. The tribunal answered “no” to both questions.
  3. [3]
    RACQ was not a party to the application for a declaration about capacity. It wants to appeal that decision. It must first establish that it has a right to appeal.
  4. [4]
    An eligible person may appeal against a tribunal decision[4]. RACQ does not fall within any of the usual definitions of an eligible person[5]. The tribunal may, however, give a person leave to appeal[6].
  5. [5]
    The appeals tribunal must therefore consider the general principles in determining whether to grant leave to appeal. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[7]
  6. [6]
    RACQ’s has submitted multiple grounds for leave to appeal. In summary, they are:
    1. a)
      The tribunal failed to give RACQ notice of the hearing, recognise RACQ’s interest in the hearing, take submissions from RACQ and denied RACQ natural justice.
    2. b)
      The tribunal failed to have proper regard to the weight of the psychiatric evidence before it.
    3. c)
      The tribunal failed to recognise that the declaration about Mr Kitt’s capacity to manage his money was not necessary. By implication, RACQ submits that the only declaration required was that Mr Kitt lacked capacity to give instructions about his personal injuries action.
    4. d)
      The tribunal failed to recognise that the determination was a matter to be decided in the Supreme Court proceedings and failed to recognise that the declarations circumvented or usurped the Supreme Court’s jurisdiction to determine the issue.

The tribunal’s obligation to involve RACQ in the hearing

  1. [7]
    The tribunal should have been aware that RACQ was involved in Mr Kitt’s personal injuries action, as it had a copy of a report addressed to RACQ[8]. That fact, of itself, does not impose an obligation on the tribunal to inform RACQ of its proceedings.
  2. [8]
    The question of whether the tribunal should have notified RACQ of the proceeding, and then given it a right to be heard, depends upon a reading of the Guardianship and Administration Act 2000 (Qld) as a whole.
  3. [9]
    Section 6 states that the Act is to strike an appropriate balance between the rights of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making.
  4. [10]
    Section 11 requires any person performing a function under the Act, including the tribunal, to apply the principles stated in schedule 1 of the Act. Schedule 1 focuses on the rights of the adult, the adult’s value in society, the adult’s participation in society, an encouragement to self-reliance, minimal intervention, the maintenance of existing supportive relationships, and the maintenance of environmental values.  None of the principles in schedule 1 speaks to the rights of third parties.
  5. [11]
    Section 11A(1) states that adults with impaired capacity are the primary focus of the Act. Unless RACQ can show that its involvement in tribunal proceedings is for Mr Kitt’s benefit, we find it difficult to see why it should have been a party to the tribunal proceeding.
  6. [12]
    Section 115(2) states that an application can be made by the adult concerned or another interested person. “Interested person” is defined as a person who has a sufficient and continuing interest in the other person[9].The tribunal can decide who is an interested person[10].
  7. [13]
    Section 118 of the sets out the parties to whom the tribunal must give notice of a hearing. Apart from the adult, the Act lists the adult’s family, primary carer, current guardians or administrators, the Public Guardian or the Public Trustee, or a service provider. RACQ does not fall within any of the nominated parties.
  8. [14]
    Section 118(1)(g) states that the tribunal should give notice to “anyone else the tribunal considers should be notified”. Although that power is at large, the tribunal should read it within the context of the preceding provisions in s 118. Ordinary principles of statutory interpretation suggest that “any other person” should be a person who is involved in the adult’s life and current decision-making structure, or a person who is concerned to ensure that the principles of s 11A(1) are met. RACQ does not have that role in Mr Kitt’s life.
  9. [15]
    Section 119 of the Act defines “active party” for a proceeding in relation to an adult. Active parties have a right to appear before the tribunal[11]. Again, the Act lists the adult, the applicant, a proposed guardian or administrator, or any current guardian or administrator. RACQ does not fall within any of the nominated parties but the tribunal has a discretion to join a person as a party to the proceeding. Again, however, ordinary principles of statutory interpretation suggest that the power to add parties should be read in light of the specific powers and that the person should have an active interest in the adult’s decision-making processes. RACQ does not have that role in Mr Kitt’s life.
  10. [16]
    RACQ’s interest in the tribunal proceeding was to protect its own financial position. It had no interest in Mr Kitt’s rights, value to society, independence or self-reliance.
  11. [17]
    We are not persuaded that the tribunal was obliged to notify RACQ of the tribunal proceedings. It follows, therefore, that RACQ did not have an interest in the proceedings, it did not have a right to make submissions on the hearing of the application or to a right to be heard. The tribunal did not deny RACQ natural justice.

The weight of the evidence

  1. [18]
    RACQ submits that the tribunal failed to consider comments by Dr Byth in his report of 3 June 2014, failed to hear further from Dr Byth, failed to give proper regard to Dr Oelrich’s assessment, failed to recognise that Dr Oelrich had not been asked to consider the relevant ground for the declaration sought and failed to call Dr Oelrich.
  1. [19]
    The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[12]  An appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.[13] 
  1. [20]
    In addition to reports from those two doctors, the tribunal also had a report from Dr Emily O'Leary and the learned Senior Member took the opportunity to talk to both Mr Kitt and his mother. The evidence could support the tribunal’s findings and we can find no compelling reason to come to a different view.

The need for a declaration that Mr Kitt could not manage his finances

  1. [21]
    An adult may have capacity for some decisions, but not others. The Act categorises matters as personal, special personal, special health and financial[14]. The management of the proceeds of litigation is a financial matter[15]. Legal matters that are not related to an adult’s financial or property affairs are personal matters[16]. The application for a declaration of capacity asked for a declaration for both financial and legal matters.
  2. [22]
    RACQ submits that the declaration that Mr Kitt could not manage his finances was not necessary at the present stage of the Supreme Court proceedings.
  3. [23]
    The application for a declaration about capacity noted that the amount of compensation Mr Kitt might receive in the Supreme Court proceeding might turn on the result of the application to the tribunal. The application also noted that any settlement negotiations might be compromised without such a declaration. If Mr Kitt’s capacity to manage his finances was a matter that might have affected the quantum of compensation – because he would require assistance – and the parties are engaging in settlement negotiations as they are required, then we find it difficult to accept that the declaration was not necessary.
  4. [24]
    RACQ’s submissions also ignore the fact that the declaration of capacity was a decision made on the evidence available at the time. RACQ sought leave to file a further report at the directions hearing. The parties had differing views about the significance of that report. Even if the report demonstrated that Mr Kitt now had capacity, the better course is to file a new application for a declaration about capacity, not challenge a decision made properly on the basis of material before the tribunal.   

The tribunal has ousted the jurisdiction of the Supreme Court

  1. [25]
    The tribunal has not appointed an administrator. The cost of administration might be one factor the tribunal considers when assessing whether there is a need for an administrator. Otherwise, the financial impact of a tribunal decision is not the primary motivation for making, or refusing to make, an order. The financial impact on a third party is of no consequence to the tribunal.
  2. [26]
    The Supreme Court may, and does, determine legal capacity for the purpose of appointing a litigation guardian[17]. Ms Kitt has already been appointed to that role.
  3. [27]
    The Supreme Court may also, in the course of determining the personal injury action, determine whether Mr Kitt has an impairment, whether the impairment was caused by the incident, whether he should receive compensation for that impairment, and the level of that compensation, if any. Nothing in the tribunal’s decision impacts upon that exercise. The tribunal’s jurisdiction and process focusses on the protection of the adult. The tribunal is not concerned with, and will not interfere in, what happens to the adult’s finances, or what decisions are made about an adult’s legal affairs. The tribunal is not concerned with the financial consequences of a declaration of capacity. There is nothing in the tribunal’s decision that ousts the jurisdiction of the Supreme Court or usurps its decision-making authority.


  1. [28]
    RACQ has no standing to appeal. We refuse leave to appeal. The application    filed 30 January 2015 is dismissed.


[1]  Not his own name.

[2]  Not her own name.

[3]  Not her own name.

[4] Guardianship and Administration Act 2000 (Qld) s 163(1).

[5]  Section 163(3).

[6]  Section 163(3)(A)(Viii).

[7] Pickering v McArthur [2005] QCA 294 at [3].

[8]  Report Dr Catherine Oelrich dated 26 May 2014.

[9]  Schedule 4.

[10]  Section 126.

[11]  Section 123.

[12] Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

[13] Chambers v Jobling (1986) 7 NSWLR 1 at 10.

[14]  Section 10.

[15]  Schedule 2 Part 1 s 1(i), (j).

[16]  Schedule 2 Part 2 s 2(i).

[17] Uniform Civil Procedure Rules 1999 Chapter 3 Part 4.


Editorial Notes

  • Published Case Name:

    RACQ Insurance Limited v Kitt

  • Shortened Case Name:

    RACQ Insurance Limited v Kitt

  • MNC:

    [2015] QCATA 158

  • Court:


  • Judge(s):

    Carmody J

  • Date:

    11 Aug 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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