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- Unreported Judgment
RTC v KMR QDC 269
DISTRICT COURT OF QUEENSLAND
RTC v KMR & Anor  QDC 269
KMR (First Respondent)
MBR (Second Respondent)
Appeal No 2189 of 2018
Magistrates Court at Beenleigh
14 December 2018 (delivered ex tempore)
14 December 2018
Porter QC DCJ
MAGISTRATES – APPEAL AND REVIEW QUEENSLAND – APPEAL – where the appellant and the second respondent were seeking protection orders against the other – where such orders were made by consent by the Magistrate – where there is an application by the appellant to lead fresh evidence on the appeal – where the appellant was of impaired capacity and subject to a guardianship order – where the appellant did not have capacity to consent to the orders – where this fact was known at the time but not put before the Magistrate – whether the Magistrate erred in making the consent orders in such circumstances – whether the consent order should be set aside.
Domestic and Family Violence Protection Act 2012 (Qld) s 51
Uniform Civil Procedure Rules 1999 (Qld) rr 93, 94
Colgate-Palmolive Company v Cussons Pty Limited (1993) 46 FCR 225
Knight v F P Special Assets Ltd (1992) 174 CLR 178
S Walker-Munro for the appellant
M O'Brien for the first respondent
Legal Aid Queensland for the appellant
Queensland Police Service Legal Unit for the first respondent
- The starting point for this appeal is an application by the appellant to lead fresh evidence on the appeal. That evidence is evidence of the fact that on the 29th of June 2017, the Queensland Civil and Administrative Tribunal made a guardianship order in respect of the appellant, appointing the Public Guardian as guardian for her in relation to, relevantly, legal matters, not relating to her financial or property matters, which appointment was ordered to be current for five years.
- The appeal is an appeal against a protection order made by Magistrate Kilmartin on 17 May 2018. On that date, his Honour made a protection order in respect of the appellant, RTC and the second respondent, MBR on the application of the first respondent, KMR, a police officer. Each of RTC and MBR were seeking protection orders against the other, and such orders were made by consent. At the hearing of the application for protection orders, RTC was supported by her support workers. No further evidence was adduced from her, her support workers, or the police regarding whether RTC was subject to a guardianship order. (I make no assumption that the police were aware of the order).
- As I have said, his Honour then made orders, by consent, on the cross-applications for protection orders. The orders were made without admission, to expire on 17 May 2020. On the 14th of June 2018, an appeal was lodged from the consent orders. I deliberately use a passive voice in describing that event, because there is some difficulty about the identity of the person who commenced the appeal. The reason for that is that the appeal was initially filed by the Office of Public Guardian, as litigation guardian, and then replaced with a notice of appeal by RTC, in her own right.
- There was only one ground of appeal that need trouble me, and that is that his Honour erred, in making the consent orders, in circumstances where RTC was of impaired capacity, and did not have capacity to consent to the orders. The power to make an order by consent arises under section 51 of the Domestic and Family Violence Protection Act 2012 (Qld). A court cannot make an order by consent based on the consent of a person who did not have capacity to consent to the order. In the ordinary meaning of capacity, the person would have to have capacity to understand the nature and effect of the legal act that they are undertaking.
- It is obviously of fundamental importance that parties who consent to orders anywhere, much less in the domestic violence environment, have capacity to do so. Although the fact of the appointment of the Public Guardian was a fact that was known at the time of the hearing, and could have been put before his Honour at that time, does not mean that I cannot, in appropriate circumstances, give leave to lead that fresh evidence. And this is plainly a case where that leave should be given.
- The order has been made in QCAT on the basis that RTC had impaired capacity for legal matters not relating to her financial, or property matters. While it might be questioned whether, as a matter of strict law, that would bind his Honour as to whether RTC had capacity to consent to his Honour it seems to me, that it is a fundamental matter relevant to whether he ought to make consent orders which was not considered.
- In those circumstances, through no fault of his Honour’s I should emphasise, the making of the consent order is affected by an error, and should be set aside on this appeal. I am conscious of the extent of the list which his Honour has to deal with, but in the circumstances of the evidence before me, it did not seem reasonably possible for me to determine the matter myself. And therefore, with some regret, I have to refer the matter back to his Honour.
- I want to make some comments, though, about the procedural aspects of this case. It is evident that this order came to the attention of the Office of Public Guardian, as guardian for RTC. It was responsible, under the order made by QCAT, for legal matters of this kind. That having been discovered, the Public Guardian understandably thought it was necessary to appeal his Honour’s order to deal with the fact that RTC had consented to an order which there is significant evidence to suggest she had no capacity to consent to (and indeed brought the proceedings in circumstances where to do so was a matter for her guardian).
- The notice of appeal was initially filed by the Office of Public Guardian as litigation guardian, and then in a way that eludes precise identification, amended on the same day to remove the Office of Public Guardian as litigation guardian. There are a number of difficulties with this situation.
- The first is this: rule 93(1) of the Uniform Civil Procedure Rules 1999 (Qld), which, it seems to me, apply to this appeal, provides that a person under a legal incapacity may start, relevantly, a proceeding, only by the person’s litigation guardian. Rule 93(2) provides, except if the Rules provide otherwise:
Anything in a proceeding…required or permitted by these rules to be done by a party, may, if the party is a person under legal incapacity, be done only by the party’s litigation guardian.
- Also relevant to this particular situation is Rule 94. It provides that a person may be a litigation guardian of a person under a legal incapacity, if the person is not a person under a legal incapacity, and has no interest in the proceeding, adverse to the interest in the proceeding of the person under a legal incapacity. More directly relevant is Rule 94(2) which provides that:
… If a person is authorised by, or under an Act, to conduct legal proceedings in the name of, or for a person with impaired capacity, the authorised person is, unless the court otherwise ordered, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends.
- Bearing in mind those rules, there are some difficulties with the way this matter has proceeded. First of all, the Office of Public Guardian has instructed and caused the starting of a proceeding by a person who, to the Office of Public Guardian’s knowledge, has impaired capacity for legal matters. Rule 93(1), as I have said, provides that such a person may only start a proceeding by their litigation guardian.
- Further, rule 94(2) seems to contemplate that a person in the position of the Public Guardian, is the appropriate person to conduct such legal proceedings. I note in that regard that reasonable minds might differ as to whether appointment as guardian for legal matters makes you “a person authorised under an Act to conduct legal proceedings in the name of a person with impaired capacity”. In my respectful view, it plainly does because conducting, for example, an appeal is a legal matter, which is a matter in respect of which the Public Guardian has been appointed. So it seems to me that the Public Guardian that would be the appropriate entity to be the litigation guardian.
- Second, the Public Guardian, in my respectful view, certainly should not be counselling or procuring the commencement of litigation by a person it knows or believes, on proper grounds, to have impaired capacity, and at the same time choose not to act as the litigation guardian, as seems to have occurred here.
- There are real difficulties of substance that can arise from this kind of approbation and reprobation of the role as the guardian for legal matters. For example, I infer that RTC did not give instructions to a solicitor to commence these proceedings, and even if she did, her solicitor being aware of the appointment would probably have real concern acting on her instructions. And, in fact, meaning no criticism of Legal Aid, they have acted on the instructions of the Public Guardian, not of RTC. But that means that there are proceedings of RTC’s which she has not given instructions to commence, or at least was not capable of giving instructions to commence. That can have all sorts of problems in respect of cost orders, compliance with the obligations under Rule 5 in the conduct of the proceedings and so on. And can, ultimately, undo the efficacy of orders made by a Court, exactly what has just happened in this case in respect of the consent orders under appeal.
- If the Office of Public Guardian is concerned about exposure to costs, it would seem to me that having been the party that gave instructions and counselled the commencement of the appeal, the Public Guardian could, in any event, it seems to me, potentially be exposed to a third party costs order under the Colgate-Palmolive or Knight v Special Assets type jurisdiction. So I do not think their reluctance to act as litigation guardian is going to give them much comfort when it comes to exposure to costs. I have a great deal of sympathy for the demands on the Public Guardian. As the population ages the pressures on the office increases. I suspect the funding might not keep pace with those increasing demands. Nonetheless, the situation that has occurred in this case is, in my respectful view, problematic and needs to be addressed.
- While I recognise that considered advice might lead to different views than mine, it is my view that what has happened here is not appropriate and some other approach needs to be adopted by the Public Guardian in these kinds of cases where it is counselling the institution of proceedings by people for whom it has responsibility under an appointment by QCAT for legal matters.
- However, in the circumstances, it seems to me, notwithstanding the irregularity in respect of the commencement of the proceedings, I am not without power to deal with the appeal and, in these particular circumstances, I plainly should.
- Accordingly, the orders that I make are to set aside the consent order made on 17 May 2018 in respect of the appellant, and remit the Queensland Police Service’s application in respect of the appellant to the Magistrates Court at Beenleigh for further consideration. I make no order as to costs.
- Published Case Name:
RTC v KMR & Anor
- Shortened Case Name:
RTC v KMR
 QDC 269
Porter QC DCJ
14 Dec 2018