Bodsworth v Queensland BHP Ltd & Ors [2003] QSC 55

\iccff] ox: oss State Reporting Bureau # Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. REVISED COPIES ISSUED State Reporting Bureau Date >/ D*> SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No WRT1554 of 1993 KEVIN CHARLES BODSWORTH Plaintiff By his next friend YVONNE BODSWORTH and QUEENSLAND BHP LIMITED First Defendant (ACN 010 558 871) and B&M ENGINEERING (QLD) PTY LTD Second Defendant (ACN 055 066 049) and VOEST ALPINE (AUSTRALIA) PTY LTD Third Defendant (ACN 001 725 668) and VOEST ALPINE (AUSTRALIA) INDUSTRIES P/L Fourth Defendant (ACN 003 703 008) and WARNING : The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 lh Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 7 -- VOEST ALPINE MINING & TUNNELLING Fifth Defendant AUSTRALIA) P/L (ACN 001 725 668) and VOEST ALPINE INDUSTRIEANLAGENBAU GMBLT Sixth Defendant and WALKERS LIMITED Seventh Defendant (ACN 009 656 848) BRISBANE ..DATE 05/02/2003 JUDGMENT 05023003 T1-2/TAB29 M/Tl/2003 (Mackenzie J) 1 10 20 30 40 50 2 80 -- 2 of 7 -- HIS HONOUR: This is an application to sanction a settlement. I have no difficulty in accepting that on the material before me the settlement itself should be sanctioned. The settlement sum is $3 million which is a small amount higher than the estimate by SC Williams QC and Mr M. Martin who appears this morning . That opinion was given on the 28th of June 2002. It has not apparently been updated, but I am prepared to accept that it remains current. What does concern me, and this is what has led to some discussion, is that there is a very large sum of money involved and the mother and sister of the plaintiff are nominated in the order as joint financial guardians. There is no evidence that they have any formal experience in managing money of this kind, although it appears from other material that advice has been sought as to certain plans which might be put in place. The concern that I have is really that a large sum of money, especially in uncertain times, needs appropriate management to ensure that its purpose is capable of being fulfilled over the life expectancy of the plaintiff. So far as the history of the matter is concerned, it appears that the plaintiff's mother lodged an application to the Guardianship and Administration Tribunal on the 7th of January 2002, seeking appointment of herself as guardian and administrator for the plaintiff . 05023003 T1-2/TAB29 M/Tl/2003 (Mackenzie J) 1 10 30 40 50 3 JUDGMENT 60 -- 3 of 7 -- 05023003 T1-2/TAB29 M/Tl/2003 (Mackenzie J) On the 16th of May, the Tribunal part heard that application. It found that the plaintiff had impaired capacity for personal and financial matters. It dismissed the application for the appointment of a guardian on the grounds that there was no need for such appointment, but found that there was clear need for the appointment of an administrator in that a damages settlement of several millions of dollars was likely to occur in the near future. The Tribunal decision proceeds to say that at that time it seemed likely that the family would want to remove him from nursing home care, whereas the financial, plans that had been submitted to the hearing did not address that possibility. Accordingly, the Tribunal adjourned the application for appointment of an administrator and on the 8th of August 2002, that hearing was continued by the Tribunal. Following the part hearing on the 16th of May, the Tribunal was satisfied that he lacked the capacity to make personal and financial decisions and that there was need for appointment of an administrator. The decision goes on to say that the only application received was from the plaintiff's mother and his adult sister as joint administrators. The observation was made that other possibilities were the Public Trustee or a trustee company under the Trustee Companies Act. The sole issue for the Tribunal was to determine whether the plaintiff's mother and sister were the most appropriate people to administer the financial affairs of the plaintiff and if 1 10 20 30 40 50 4 JUDGMENT 80 -- 4 of 7 -- 1 not, who else was the most appropriate for appointment as administrator. The reasons go on to set out, in some detail, what was considered by the tribunal. The Public Trustee was apparently represented, although it appears not as an applicant, and seems to have performed more of an advisory 10 role. If I am incorrect in that, it does not'seem to have been a case where the Public Trustee truly contested the application from the tenor of the reasons. In any event, paragraph 16 of the reasons goes on to state * that in relation to the relevant qualifications and experience of the proposed administrators, the Tribunal was informed that the plaintiff's mother took care of the books of a building business owned by her husband and herself and that the plaintiff's sister's vocation was computer network consultant. 30 It was apparent that members of the immediate family have absolute faith, to use the expression quoted in the reasons, in the analytic ability of the plaintiff's mother as that related to the duties and responsibilities of an 40 administrator. The Tribunal also said that from its own questioning of her and her responses to matters raised by other parties, the tribunal found no reason to bring into question the faith that other members of her family placed in her analytic ability. 50 The reasons continue that the Tribunal was favourably impressed by the understanding of financial affairs that both 05023003 T1-2/TAB29 M/Tl/2003 (Mackenzie J) 5 JUDGMENT 60 -- 5 of 7 -- of the proposed administrators demonstrated in their statement and their responses to questions, and it saw no reason to conclude that their performance as joint administrators was likely to be inferior to that of professionals. It is also to be noted that the maintenance of existing supportive relationships was a factor that was taken into account in accordance with General Principle 8. In any event, the conclusion of the Tribunal was that it was not satisfied that any financial disadvantage to the plaintiff would result from the appointment of the two applicants as administrators. It considered that should there be any financial disadvantage, it was not likely to be such that it would outweigh the other advantages to him but would be consequent upon their appointment rather than a non-family professional agency. The Tribunal accepted that the proposed administrators were clearly the most appropriate in relation to the maintenance of existing supportive relationships. I am not quite clear in my own mind, without having done further research, what particular relevance the existing supportive relationship has to managing a fund of money, but no doubt it was a factor that was taken into account by the Tribunal. In any event, the appointment was for 12 months unless the Tribunal ordered otherwise. In a way I am being asked to give a sort of full faith and credit to the decision of the Tribunal. I propose to do that, but I do wish to say this, that it seems to me to be highly 05023003 T1-2/TAB2 9 M/Tl/2003 (Mackenzie J) 1 10 20 30 40 50 6 JUDGMENT 60 -- 6 of 7 -- desirable and I imagine that it would be done in any event, that when the extension of period of the Tribunal's order in relation to the administration of the fund becomes a live issue again, that the Tribunal rigorously examine the progress of the administration of the fund. I propose therefore to make an order in terms of the draft. I do, however, intend to add one further clause which will be the following: That a copy of the transcript of the reasons delivered by Justice Mackenzie in conjunction with making this order be delivered forthwith to the Registrar of the Guardianship and Administration Tribunal. So I will make an order in terms of the draft initialled by me and placed with the papers, as amended. 05023003 T1-2/TAB29 M/Tl/2003 (Mackenzie J) 1 10 30 d(\ SO 1 JUDGMENT 60 -- 7 of 7 --