BRT [2012] QCAT 128

CITATION: BRT [2012] QCAT 128 PARTIES: BRT APPLICATION NUMBER: GAA8762-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 21 February 2012 HEARD AT: Brisbane DECISION OF: Mr Ron Joachim, Member DELIVERED ON: 20 March 2012 DELIVERED AT: Brisbane ORDERS MADE: [1] That the applicants are interested persons for the purpose of bringing an application for declaration of capacity in respect of BRT. [2] That BRT is directed to undergo an examination by a psychiatrist, preferably Dr X, to determine whether BRT has capacity to instruct lawyers and make decisions about:  Initiating the current application before the Queensland Supreme Court against the applicants and SG;  Prosecuting the action throughout the Court proceedings; with particular reference to the definition of capacity as defined in Schedule 4 of the Guardianship and Administration Act 2000. [3] That BRT make the appointment and advise the registry in writing of the name and address of the assessing psychiatrist when he has made the appointment, and the date of the appointment by 4pm on 13 April 2012. [4] That BRT provide a copy of his application to the Queensland Supreme Court to the registry by 4pm on 30 March 2012. [5] That the Registry provide the following -- 1 of 7 -- 2 documents to the assessing psychiatrist upon being advised of his/her contact details:  The definition of capacity;  A copy of the application to QCAT, the covering letter and Annexure A;  A copy of BRT’s application to the Queensland Supreme Court commencing the litigation;  A copy of this order. [6] That the applicants pay the fees of the assessing psychiatrist. CATCHWORDS: Guardianship and administration – Declaration of capacity – Interested party – where applicant stepsons seek a declaration about stepfather’s capacity to bring litigation against them – where stepfather says stepsons wish to frustrate his litigation – whether stepsons have a sufficient and continuing interest in stepfather Guardianship and Administration Act 2000, ss 114, 115, 126, 140, 146, Schedule 4 EEP, Re [2005] QGAAT 45 MAD, Re [2007] QGAAT 56 APPEARANCES and REPRESENTATION (if any): APPLICANT: CM and CB represented by Plastiras Lawyers through Ms A Andric RESPONDENT: BRT represented by Hickey Lawyers through Mr Scott Eustace REASONS FOR DECISION [1] On 29 September 2011 the Tribunal received an application from Plastiras Lawyers. The application was signed and submitted by Anja Andric, a solicitor from the law firm. It was submitted on behalf of CM and CB who are the applicants. The applicants say that BRT suffers from bipolar disorder, and are seeking a declaration from the Tribunal about his capacity to bring an action in the Supreme Court. They have been unable to obtain a health professional report regarding BRT’s capacity. [2] BRT has commenced proceedings in the Queensland Supreme Court against the applicants and against SG, a company of which the applicants are the directors. [3] BRT is represented by Hickey Lawyers. BRT does not consider he lacks capacity for undertaking the action and argues that the applicants who are the sons of his former wife by another partner, lack the standing to bring the -- 2 of 7 -- 3 application. BRT says that the applicants do not have a sufficient and continuing interest in him. In fact, BRT submitted to the Tribunal that the applicants have no interest whatsoever in his welfare and are only interested in the resolution (frustration) of the Supreme Court proceeding. The Supreme Court proceeding arises because BRT maintains he has an entitlement to one third of the profits of the company, from July 2005 to the present. [4] The applicants have submitted to the Tribunal that BRT suffers from a mental health condition and in the past has been detained involuntarily in hospital under the New South Wales Mental Health Act. They say he has been the subject of a domestic violence order for harassing and stalking CM and CB. The applicants maintain that BRT does not have legal capacity to instruct Hickey Lawyers. They say his condition manifests itself periodically. For example in November 2010 BRT declared on oath he did not have any interest in the company, now he says he does. They say BRT’s recent declaration that he intends to financially exhaust himself to pursue this delusion is most alarming as it will have catastrophic consequences on his family. [5] The relevant legislation in respect of this matter is contained in section 146 of the Guardianship and Administration Act 2000 and Schedule 4 of the Act. Section 140 empowers the Tribunal to make a declaration about the capacity of an adult. The Tribunal may do this on its own initiative or on the application of the individual or another interested person. Interested person is defined in Schedule 4 of the Act: Interested person, for a person, means a person who has a sufficient and continuing interest in the other person. [6] On 28 October 2011 the Registry wrote to BRT and the applicants advising that the Tribunal had determined to conduct a directions hearing to hear arguments on the standing of the applicants having regard to section 115 of the Act and to determine whether to direct BRT to undergo an examination by a doctor or psychologist pursuant to section 114 of the Act. Section 115 outlines the scope of applications and by whom applications may be made. This is consistent with section 146 of the Act referred to earlier. Section 126 of the Act empowers the Tribunal to decide whether a person is an interested person for another person under this Act. It is this power that the Tribunal is exercising in this matter. [7] The directions hearing was held in Brisbane on 21 February 2012. Prior to the hearing the parties provided submissions to the Tribunal regarding the question of whether the applicants had a sufficient and continuing interest in BRT also taking into account the previous cases Re MAD1 and Re EEP2. [8] The Tribunal received a further submission on the day of the hearing from the applicants. [9] The applicants first met BRT as a result of their mother’s relationship with him which lasted approximately 19 years. The applicants resided with their 1 MAD, Re [2007] QGAAT 56. 2 EEP, Re [2005] QGAAT 45. -- 3 of 7 -- 4 mother and stepfather, BRT, for approximately two years after which they left to go to university. Their mother and BRT had two children, born in 1993 and 1998. The applicants completed their university training as geologists and worked in the mining sector from 2000/2001. The applicants advised the Tribunal that they have had continued contact with BRT through family birthdays and Christmas and that they employed BRT from approximately June 2005 until September 2008 when they terminated his employment. Despite this and despite the relationship with their mother and BRT having broken down they continue to meet BRT regularly and spend time at festive seasons together. [10] The applicants further advised that although formally separated, BRT is still considered a member of the extended family as he attended Christmas functions in December 2011 and attended his step daughter’s wedding the month before. [11] The applicants also submitted that BRT remains a company director and trustee with the applicants. [12] The applicants advise they are not looking for the proceedings in the Queensland Supreme Court to be dismissed. They simply want someone else to deal with them on behalf of the applicant, who has stated he will sell everything to fund the litigation. The applicants in their submissions advise that: “BRT continues to make threats to financially exhaust himself for the sole purpose of “destroying” our clients. He has made numerous death threats against the Applicants, their family and employees. BRT is clearly lacking rational thought and the Applicants concern over the welfare of their siblings and other family is evident. The applicants interest extends to obtaining proper care and protection of BRT. This is evidenced by the fact the Applicants have previously obtained orders from the Court to have BRT attend hospitals and psychiatrists to be provided with the necessary treatment for his condition and improve his quality of life and those around him.” [13] The applicants commented that in 2006 changes to BRT’s personality were noted and he was exhibiting signs of mania, including not eating or sleeping. [14] The applicants also refer to apprehended violence orders being taken out against BRT because of harassment of their mother and themselves in 2010. [15] The applicants submit their aim is to resolve the matter though negotiation or mediation, but are concerned that BRT’s judgment may be impaired by his mental illness. Other issues follow: a. The applicants remain concerned that BRT is selling his assets (home) and accessing superannuation in order to fund the litigation. b. The house sale occurred on 20 February 2012, and the applicants are informed that BRT may be renting a property. -- 4 of 7 -- 5 c. It appears that BRT may be making decisions that are not in his best interests, in order to pursue litigation, whereby the risks may be high and financial outcome is uncertain. [16] BRT advised the Tribunal that he sees his children from the relationship with the applicants’ mother every fortnight and has regular phone calls. He advised that the split up was amicable. [17] He agreed with the family contact described by the applicants. [18] BRT advised he had been scheduled in 2008 and assessed for mental illness. He was prescribed lithium at that time. He stated his mental health was fine now. [19] BRT further advised he last saw a psychiatrist Dr X some 18 months ago and is not on any medication. He had about 10 to 12 sessions with the psychiatrist. Do the applicants have standing? [20] The former Guardianship and Administration Tribunal was required to consider the issue of standing in two matters where litigation had been on foot between the parties. These were Re EEP [2005] QGAAT 45 and Re MAD [2007] QGAAT 56. In EEP the applicants sought the appointment of an administrator. This application was dismissed. EEP was the defendant in an application before the District Court brought by a company, the applicant was a director of that company. At the time of the hearing EEP was under an involuntary treatment order under the Mental Health Act. The applicant was seeking the appointment of the Public Trustee for the purpose of litigation between the applicant and EEP. The applicant wanted an administrator appointed so he could expedite his legal action against EEP. In that matter the Tribunal determined that the applicant’s interest was limited to the resolution of the litigation and that the interests was not necessarily concerned with the adult’s proper care and protection and was not of continuing interest. The Tribunal commented that the applicant’s interest was tainted as he was in a position of conflict. [21] In MAD an application for a declaration of capacity was sought. The application was dismissed. The applicants in this matter were two doctors defending an application in the Supreme Court by MAD, asserting that the doctors had breached their duty of care in providing reports about him to an insurer that were factually incorrect. As a result MAD was seeking to recover damages from his former employee for lost working capacity arising from a work injury. The Tribunal concluded that the applicants did not have sufficient standing to bring the application because the doctors did not have an ongoing concern for the welfare of MAD. [22] In this matter the applicants contend that BRT has been sufficiently and is continuously connected with both business and family interests. They argue that the current litigation presently before the Supreme Court is not the only connection of the parties. They submit that this is significantly different from both EEP and MAD. They submit that as part of BRT’s family the applicants have a continuing concern for the welfare of BRT both emotionally and -- 5 of 7 -- 6 financially. Whilst acknowledging that they are engaged in litigation against BRT they argue that this does not preclude them from having a continuing interest in his welfare. The applicants contend they satisfy the test of sufficient and continuing interest because their interest is not merely limited to the resolution of litigation to which they are connected. They further advised that they had provided financial support to BRT in relation to tax liabilities. One of the companies owned by the applicants had also paid $100,000 off a loan in respect of a house BRT had been living in. This occurred in financial year 2009/2010. This was not contested by BRT. [23] On the other hand BRT contends that the applicants’ only concern is in the Supreme Court proceeding. In this regard BRT refers the Tribunal to paragraphs 15 and 16 of the annexure to the application in which it stated the claim made against the applicants and the company is a product of a delusion. BRT’s lawyer argued at the hearing that the applicants suggest that there is an ongoing relationship because of business partnership and directorships. He submitted that the business relationship fell apart in 2008 and that there is no ongoing relationship. He submitted that there are no shareholders meetings conducted. [24] Whilst acknowledging that there was some contact between the parties as a result of family functions, Mr Eustace submitted that the limited contact on these occasions was not sufficient to suggest an ongoing family relationship. He submitted that the real motivation is to frustrate the legal proceedings. He further submitted that the interest in BRT started after the filing of the Queensland Supreme Court application rather than a genuine concern as to his welfare. He referred the Tribunal to paragraph 30 of the applicants’ submissions and submitted that all of the concerns expressed by the applicants are in relation to the legal proceedings. [25] Mr Eustace advised the Tribunal that in his client’s view there was a written agreement regarding the sharing of profits and he wants a reasonable settlement. He further stated that the AVO referred to was consented to by BRT. The Tribunal’s view [26] The Tribunal is satisfied that the applicants do satisfy the test for being an interested person. It accepts the submissions of the applicants in respect of the long involvement of BRT as a family member as the applicants’ former stepfather and father to their siblings as well as the previous long term relationship with their mother. [27] The Tribunal also accepts that there has been a range of business ventures undertaken with the applicants and that there remains some common interest in some companies. There is no doubt that BRT remains involved in a range of family functions. [28] The Tribunal accepts that the applicants’ interest extends beyond the legal proceedings in that they have genuine concern for the family in respect of BRT’s overall financial situation. The family connection is a clear point of distinction between this case and EEP and MAD. The applicants are also concerned about the impact of the litigation on their half siblings. -- 6 of 7 -- 7 [29] The Tribunal also accepts that the applicants financially assisted BRT during the financial year 2009/2010. [30] The Tribunal does not accept the arguments by BRT and his legal representative in respect of the paragraphs referred to in the various submissions as reflecting the applicants’ only interest being the Supreme Court proceedings. The fact that the Supreme Court proceedings are mentioned in the paragraphs referred to does not exclude their being interested in other aspects of BRT’s life. [31] BRT has been understandably reluctant to this point to submit himself to a medical examination for the purposes of these proceedings. In the circumstances now where the Tribunal finds that the applicants do have standing to bring the application for a declaration of capacity, the Tribunal will make a direction that BRT is to undergo a psychiatric examination pursuant to section 114 of the Guardianship and Administration Act 2000. This will be necessary to assist the Tribunal in determining whether BRT has capacity to initiate and prosecute the proceedings in the Supreme Court. [32] It will be necessary for the examining psychiatrist to have access to a various documents including these reasons. The further documents that the Tribunal will direct be made available to the examining psychiatrist are as follows:  Definition of capacity in schedule 4 of the Act;  A copy of the application and annexure A, and the covering letter to the Tribunal;  A copy of the application of BRT’s to the Queensland Supreme Court commencing the litigation. [33] As these proceedings are not being brought by BRT it is unreasonable to expect that he would meet the costs of the psychiatric examination. As a result the Tribunal will order that the applicants pay the psychiatrist’s fees. [34] The Tribunal considers that BRT last treating psychiatrist, Dr X, would be the most suitable psychiatrist to report on whether BRT has capacity to instruct solicitors in relation to the proceedings. Orders will be made accordingly. -- 7 of 7 --