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Authorised Reports & Unreported Judgments
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JDM v Hodges & Anor  
Unreported Citation: [2019] QSC 65
EDITOR'S NOTE

In this decision, Henry J considered whether the Supreme Court had jurisdiction to appoint an administrator under ss 12 and 245 of the Guardianship and Administration Act 2000.  The application was made because of unresolved issues in relation to the settlement monies from the compromise of a proceeding in the District Court. Henry J explained that the power to appoint an administrator under s 245 only arises consequentially upon the exercise of the power to make a payment order but it does not confer a power to make a payment order.  Here, the application for appointment of the administrator was not part of the originating process of, or an interlocutory step in, the District Court proceeding and there was no application to sanction a settlement. Accordingly, his Honour held that the Court did not have jurisdiction.

Henry J

19 March 2019

Background

The applicant, who was 23 years old, suffered chronic post-traumatic stress disorder as a result of her involvement, as a pedestrian, in a car accident. [3]. She was the beneficiary of settlement monies under a release arising out of the settlement of a personal injury claim. [1]. The consensus of psychiatric opinion supported the conclusion that the applicant had “an impaired capacity to manage the administration of her settlement monies”. [5].

Release

The release provided for the payment of $600,000 by the second respondent to the applicant. [9]. The release did not record any agreement for the payment of administration and management fees separately to the agreement to pay settlement monies. [9]. However, the definition of settlement monies in the schedule to the release noted that it was “[e]xclusive of reasonable administration and management fees to be agreed or assessed”. [9]. The release “did not identify who was supposed to assess the administration and management fees if they were not agreed”. [9].

The second respondent conceded that it was implicit in the release that, in addition to paying the $600,000 settlement amount as primary damages, it agreed to pay “reasonable administration and management fees to be agreed or assessed”. [10]. Subsequent to the settlement, a dispute developed as to whether agreement had been reached on the quantum of “reasonable administration and management fees”. [11].

Supreme Court

The applicant applied to the Supreme Court for orders for and in connection with the appointment of an administrator for the applicant under the Guardianship and Administration Act 2000 (“the Act”). [1]. The second respondent queried whether the Court had jurisdiction to appoint an administrator, and also, asserted that the Court should not itself assess the administration and management fees to be paid to the administrator because there had been an agreement between the parties. [2]. The applicant denied that there had been any such agreement and sought an assessment of a higher amount. [2].

Two issues arose for determination. [12]. The first was whether the Court had the jurisdiction to make the orders sought. [12]. The second was, if the Court did have jurisdiction, whether the parties had agreed on, or it remained for the court to assess, the amount to be ordered to be paid as administration and management fees. [12].

Legislation

Section 12 of the Act provides that “[t]he tribunal may, by order, appoint a guardian for a personal matter, or an administrator for a financial matter, for an adult” in certain circumstances. [15]. The “tribunal” referred to is QCAT. [16]. Section 245 of the Act further provides:

“(1) This section applies if, in a civil proceeding –

(a) the court sanctions a settlement between another person and an adult or orders an amount to be paid by another person to an adult; and

(b) the court considers the adult is a person with impaired capacity for a matter.

(2) The court may exercise all the powers of the tribunal under chapter 3. ...

(7) In this section –

court means the Supreme Court or the District Court.

settlement includes a compromise or acceptance of an amount paid into court.” [15].

Determination

Henry J noted that the present proceeding was not part of the originating process of, or an interlocutory application in, the District Court claim that was the subject of the settlement agreement. [18]. It was a civil proceeding, but a separate civil proceeding from the District Court claim. [18]. His Honour further noted that the present proceeding was not one where the Court was being asked to sanction a settlement. [19]. Accordingly, for s 245 to apply, the application would need to be a civil proceeding in which the Court “orders an amount to be paid by another person to an adult”. [20].

His Honour continued:

“It is true that some of the orders sought are orders that an amount be paid by another person to an adult ... However, it is circular to reason that the source of the Court’s jurisdiction under the Act derives from orders sought on the assumption the Court has jurisdiction to make them under the Act ... Section 245 confers a power arising consequentially upon the exercise of a power to make a payment order. For s 245 to be triggered there would have to exist power, in the Court being asked to exercise the tribunal’s powers, to make a payment order in the first place. Section 245 does not confer that power.” [20]–[21].

Accordingly, his Honour held that “[t]he fact that s 245 does not confer jurisdiction to make the payment orders is a determinative obstacle to the present application in this Court, unless a viable other source of jurisdiction empowers this Court to make the payment orders sought”. [23]. After rejecting an argument based on the Court’s parens patriae jurisdiction, his Honour dismissed the application for want of jurisdiction. [32]. Accordingly, his Honour did not decide the second issue. [31].

M J Hafeez-Baig