Beak v Merrett[2022] QDC 239

DISTRICT COURT OF QUEENSLAND

1. [1]
   I have before me, amongst other things, an application by the applicant Mr Beak, executor of the estate of his father, for the appointment of a litigation guardian for the defendant respondent in these proceedings, Ms Beverley Lynette Merrett.
2. [2]
   The necessary statutory pre-condition to the appointment of a litigation guardian is that, under Rule 93(1) of the Uniform Civil Procedure Rules 1999, Ms Merrett is a person under a legal incapacity.  That expression is defined in the way explained by Justice Margaret Wilson in Plumley v Moroney [2014] QSC 3 as, relevantly to this case, being a person with impaired capacity. That is defined relevantly for this matter anyway, as, “a person not capable of the decisions required of a litigant for conducting proceedings”. ^[1]
3. [3]
   The plaintiff, Mr Beak, has had concerns about that matter for some time in respect of Ms Merrett.  The suggestion that Ms Merrett might not have that capacity was first raised by her then solicitors on the record, Results Legal, some months ago.  Ultimately, a report was obtained from a Dr Sayani in August this year, which, though not decisive, described Ms Merrett as a person with all the hallmarks of a very significantly reduced cognitive capacity as a result of Alzheimer’s disease and possibly other cognitive decline conditions related to old age. 
4. [4]
   Dr Sayani noticed that, on instructions from the family, there was a noticed decline in ability to remember recent conversations, important dates and appointments over the last six months.  The difficulties described by the doctor’s report provide a powerful suggestion of such reduced capacity (as to memory, to reason and to emotional stability) as to give rise to a real concern about the capacity of Ms Merrett to give instructions.  That report was put before this Court in a way that was not strictly admissible, but no party raised any objection on that point.
5. [5]
   On the appearance today, the applicant sought a transfer of this matter to the Queensland Civil and Administrative Tribunal (‘QCAT’) for that Tribunal to assess capacity because the applicant did not think he knew enough of Ms Merrett’s condition to persuade me in this hearing of impaired capacity. 
6. [6]
   That difficulty was resolved by the appearance today before me of two of Ms Merrett’s daughters, Ms Carmel Ward and Ms Donella Merrett.  I gave Ms Ward leave to appear on behalf of her mother. She gave evidence, in a frank and clear manner, about her mother’s cognitive decline.  That evidence was not sworn but the applicant did not call for it to be so and did not seek to challenge it.  I have no hesitation in accepting Ms Ward’s statements on the issue.
7. [7]
   Ms Ward described a very significant decline in her mother’s memory and her understanding, both as to short term memories and as to longer term issues.  She described someone with very little functional short-term memory and very little understanding of these proceedings. On her evidence alone, taken with Dr Sayani’s evidence, there would be ample ground to conclude that the kind of capacity required for this case (that is to understand the nature and effect of the proceedings, to understand their importance, and to be able to understand the issues and give instructions on the facts) was very significantly impaired.
8. [8]
   To be on the safe side, I arranged for Ms Merrett’s other daughter and Power of Attorney, Donella Merrett, to give unsworn evidence, and I note again the applicant’s counsel did not seek her to be sworn.  Ms Donella Merrett gave evidence on the telephone in response to my questions as to her observations of her mother’s intellectual capacity.  It is sufficient to say that Ms Donella Merrett’s statements confirmed what her sister had said.  She also reported what had been discussed in a recent specialist appointment where the prospects of any improvement was described by the doctor, even on medication, as limited.
9. [9]
   Ms Donella Merrett, also said that she had raised this litigation with her mother in recent times, and her mother had naively said that she thought that it was all sorted out.  In the context of the material before me, as to the conduct of the proceedings in the last few months, it is impossible to see how she could have formed that view if she had sufficient cognitive capacity to recall what had happened, and to understand the present circumstances of the litigation.
10. [10]
    For all those reasons, I was satisfied that it was unnecessary to transfer the matter to QCAT, and that I was able to make a declaration that Ms Beverley Merrett, the defendant, is a person under a legal incapacity for the purposes of Rule 93(1) of the UCPR.  
11. [11]
    I do not think there is any doubt whatsoever that this Court has the power to make that determination.  It is an issue that arises under the Rules and is part of the Court’s exercise of its jurisdiction to hear and determine the proceedings before it.  I should say, though, that if I had been unable to make that determination, either because, for example, there was objection to the informal procedure adopted or there was not any witness available to me to obtain evidence from about capacity, I agree with Mr Maconi’s submission that this Court has power to transfer that specific question to QCAT for determination.
12. [12]
    I am going to briefly explain how and why that is possible. 
13. [13]
    The starting point is section 69 of the District Court Act 1967. That section gives this Court all the powers of a Supreme Court Judge, for the purposes necessary to the exercise of the Court’s original jurisdiction.  There is no doubt the Court has original jurisdiction over these proceedings.  Therefore, the question is what could the Supreme Court do in like circumstances?  I think that is the correct approach to this issue.  Section 69 is a jurisdiction conferring provision, and as is well known, such provisions should not be read down.
14. [14]
    In Till v Nominal Defendant [2010] QSC 121, Justice McMeekin formed the view that the Supreme Court had the power to transfer to QCAT the determination of the question of whether a person was a person of impaired capacity under Rule 93(1).  As I read that judgment, his Honour appears to have located the power to transfer that issue in s. 241(1) of the Guardianship and Administration Act 2000 (‘Guardianship Act’) which provides;

241  Transfer of proceeding

1. (1)
   The court may, if it considers it appropriate, transfer a proceeding within the tribunal’s jurisdiction to the tribunal.

15. [15]
    It may be, however, that his Honour considered, looking at the statutory scheme, that the parens patriae jurisdiction of the Supreme Court authorises the Court to transfer the issue to QCAT.^[2]  It is unnecessary for me to decide which basis his Honour adopted to sustain the transfer of the issue.  It seems to me that if the Supreme Court has power to transfer the issue of whether a person was a person of impaired capacity under rule 93 arising from its parens patriae jurisdiction, then this Court also has the same power under s. 69 District Court Act to the extent it is necessary to dispose of proceedings in its original jurisdiction.  For my part, though, I prefer rule 241(1) as expressly conferring a power to transfer.
16. [16]
    It remains to note the following.  QCAT has power to make a declaration about capacity, and in particular under 146(1) of Guardianship Act, “The tribunal may make a declaration about the capacity of an adult … for a matter”.
17. [17]
    The question of whether a person is a person of impaired capacity rule 93(1) by reason of cognitive impairment is clearly, in my view, an issue as to “the capacity of an adult for a matter” within the meaning of s. 146(1); in this case, capacity for the matter of conducting legal proceedings. 
18. [18]
    QCAT therefore has power to make declarations about that issue.  What is important, however, is that if a transfer is to be made, the transferring Court identifies for QCAT:

    1. (a)
       A party that is the moving party or applicant in respect of the matter; and
    2. (b)
       The issue to be determined.
19. [19]
    In that respect, it seems to me, that the power arises where the applicant, for the appointment of a litigation guardian or indeed the applicant for a declaration about legal incapacity, puts before the Court an application for that relief, which can be specifically articulated, and then be the subject of the transfer, with the applicant being the person who will be moving for the declaration in QCAT.  That practical consideration is an important one for such a transfer to be able to be actioned in a practical way by QCAT. 
20. [20]
    Having said all that, it ultimately was unnecessary for me to transfer the matter to QCAT because it was possible for me to make the determination in the Court with the assistance of everyone involved.