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An unusual issue arose in this case as to the appropriate form of relief in circumstances where the applicant brought an application for sanction of a settlement but sought to have the application dismissed and a declaration made instead as to her capacity to agree to the settlement. The respondent defendants did not oppose the declarations. At issue was whether the contradictor’s absence of opposition affected the court’s jurisdiction to make the declarations. As his Honour explained the jurisdictional issue goes to the existence of a contradictor and not the position taken by it. Therefore, as the evidence indicated the applicant did not have impaired capacity there was no impediment to making the declarations sought.
22 July 2020 (delivered ex tempore)
The applicant’s personal injury claim was settled at a compulsory conference. The terms of that settlement were described by Henry J as “regrettable”. They included an introductory clause which provided that “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 key term in question referred to “the possibility” of “the event of a finding that the plaintiff has an impaired capacity for a financial matter”.
By virtue of the wording of these two settlement terms, it was necessary for the applicant to seek guidance from the Courts, in order to establish whether she was under a disability which would require the Court to sanction the settlement. Critically, the respondents did not oppose the application for such a declaration.
In considering the merits of the application, Henry J found there was limited evidence of any issue of capacity. Rather, the evidence as a whole indicated the applicant did not have impaired capacity.
The key issue in the case was therefore the proper mechanism for relief. An issue arose because there was no active contradictor in the case. An application for a sanction had been made both on the basis of the introductory clause of the settlement agreement and because the applicant was concerned that the absence of an active contradictor raised questions as to whether declarations were the proper form of relief.
As outlined by his Honour, the difficulty with the application for sanction was that the applicant had applied with the admitted intention of arguing the orders should not be made, and the application ought to be dismissed.
Whilst Henry J accepted the good faith intention underlying the application for sanction, his Honour was reluctant to conclude that those good intentions allayed the concern that it would be an abuse of the Court’s process to entertain an application which the applicant had no intention of arguing in support of and, instead, intended to be dismissed.
Ultimately, this point did not need to be decided as declarations were sought as an alternative remedy. In respect of the application for declarations, the applicant submitted that there is no principle that a declaration should not be made if there is no contradictor.
After consideration of the relevant authorities, Henry J decided this case was “not the occasion to revisit” the question of whether the existence of a contradictor is a prerequisite for the making of a declaration. In this case, a contradictor clearly did exist. That they did not oppose the declarations, was held to be “no obstacle”. This was because the jurisdictional principle concerns the existence of a contradictor and not the position taken by the contradictor.
Justice Henry concluded by noting that whilst there will be cases where the absence of opposition by a contradictor must prompt the Court to take greater than usual care before making a declaration, this case was not one of them. Accordingly, Henry J made the declarations sought.