Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [2020] QDC 84 (15 May 2020)

CITATION:	Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [2020] QDC 84
PARTIES:	Patricia Margaret Wheatley (Applicant) v The Public Trustee of Queensland as Litigation Guardian of BBJ. (Respondent)
FILE NO/S:	1201/20
DIVISION:
PROCEEDING:	Originating Application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	15 May 2020
DELIVERED AT:	Brisbane
HEARING DATE:	11 May 2020
JUDGE:	Byrne QC DCJ
ORDERS:	1. Pursuant to r 375(1) and r 377(1)(c) of the Uniform Civil Procedure Rules 1999, the name of the Respondent be amended to “The Public Trustee of Queensland”. 2. The application filed on 24 April 2020 is dismissed. 3. The applicant pay the respondent’s costs of the application.
CATCHWORDS:	HEALTH LAW – MENTAL HEALTH GENERALLY – DECLARATION OR FINDING OF MENTAL ILLNESS OR IMPAIRED CAPACITY – JURISDICTION OF COURT – where the applicant has made an application that BBJ be assessed by a registered psychiatrist – where the respondent opposes the application – where BBJ is not a party to the proceeding – whether the court has power to order that BBJ be assessed. HEALTH LAW – MENTAL HEALTH GENERALLY – DECLARATION OR FINDING OF MENTAL ILLNESS OR IMPAIRED CAPACITY – JURISDICTION OF COURT – where the applicant has made an application to adjourn the originating application to allow BBJ to be psychiatrically assessed, should he consent – where the respondent opposes the adjournment – where a determination has previously been made as to BBJ’s capacity under Guardianship and Administration Act 2000 - whether adjournment of the application would be inutile. PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – PERSONS UNDER LEGAL INCAPACITY OTHER THAN CHILDREN – where the applicant has commenced proceedings seeking provision from the deceased’s estate – where the applicant’s sibling BBJ has commenced proceedings seeking provision from the deceased’s estate – where the applicant has made an application to replace the respondent as the litigation guardian of BBJ in the proceedings – whether a conflict of interest arises if the applicant were to replace the respondent as BBJ’s litigation guardian – whether there is evidence that demonstrates that removal of the respondent as BBJ’s litigation guardian would be in BBJ’s interest. Mental Health Act 2016, s 441, s 443 Succession Act 1981, s 41 Uniform Civil Procedure Rules 1999, r 94, r 95, r 375, r 377, r 430 Guardianship and Administration Act 2000, s 12 Doleman v Doleman [2017] QSC 113, considered. Gronnerud (Litigation Guardian of) v Gronnerud Estate [2002] SCR 38 417, cited. L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; [2006] 233 ALR 432, considered. King & Ors v Fister & Anor [2019] QSC 217, applied. Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, considered.
COUNSEL:	J McConvill (sol) for the applicant. R Whiteford, with M Crofton for the respondent.
SOLICITORS:	James McConvill & Associates for the applicant. Official Solicitor to the Public Trustee of Queensland for the respondent.

[1] The applicant by originating application filed 24 April 2020 has applied for orders that:

1. Pursuant to r 95(2) of the Uniform Civil Procedure Rules 1999 (Qld), the Applicant seeks to replace the Public Trustees [sic] of Queensland as Litigation Guardian for BBJ [1] in relation to his Family Provision Application in the Estate of the deceased.

2. Pursuant to r 94 of the Uniform Civil Procedure Rules 1999 (Qld), the Applicant be determined to be a suitable Litigation Guardian for BBJ in relation to his Family Provision Application in the Estate of the deceased.

[2] On the morning of the hearing on 11 May 2020, the applicant provided the court with a draft order that in effect ordered that BBJ be assessed by a registered psychiatrist agreed between the parties within 14 days of the order. It also sought an order requiring the appointed psychiatrist to prepare a report as to BBJ’s capacity to conduct his affairs (financial, legal and otherwise) and to understand and execute legal documents including an affidavit. The third order sought was that the parties endeavour to ensure that report be prepared by 31 July 2020, with the expense of the report shared between the parties. Fourthly, the applicant was seeking an order that the substantive application be adjourned to a date to be fixed after a hearing to be held in QCAT, currently tentatively listed for 30 August 2020. Finally the applicant sought to amend the wording of the substantive application to in effect remove the Public Trustee as Litigation Guardian in respect of all legal matters and to replace it with the Applicant as Litigation Guardian in all legal matters.

[3] The respondent objects to the application to adjourn, the terms of the proposed orders requiring a report be prepared and to the substantive application itself and, if the applicant succeeds on the substantive application, to the amendment to enable the appointment of the applicant as a Litigation Guardian at large.

[4] The respondent has also brought to the court’s attention that the respondent is misnamed in the proceedings.

[5] The deceased passed away on 5 June 2019. His then wife had pre-deceased him. He had at the time of his death fathered a total of eight children between he and his two wives over the course of his life.

[6] He did not provide for all of his children in the last of his Wills. Two of the children who were not named as beneficiaries in the last Will are the applicant and BBJ. The material, as filed for the purposes of the substantive application, accepted between the parties that BBJ suffers from a legal incapacity. It was said that he suffers from paranoid schizophrenia, dis-social personality disorder, anti-social personality and poly substance abuse. It was also noted that he is the subject of a Forensic Order which, at the hearing of the application, it was established was an order made by the Mental Health Court.

[7] On 30 August 2019, the Public Trustee was appointed as BBJ’s administrator for all financial matters. It was not, at least until the hearing of the application, in any contest that BBJ remained under a legal incapacity.

[8] On 6 April 2020, the present applicant applied for a review of the decision appointing the Public Trustee as BBJ’s administrator for all financial matters. It should presently be noted that such an appointment carries with it an appointment as, in effect, a litigation guardian as the appointment makes the Public Trustee the administrator for all legal matters as well. I am informed that the application for review of the QCAT decision has a tentative listing date of 30 August 2020. The applicant was not, I am told, a party to the original proceeding in QCAT, although had been notified of the matter.

[9] There have been a number of applications made in relation to the deceased’s Will and in respect of family provision applications. The history of these is of importance in the determination of this application.

[10] On 4 September 2019, proceedings were commenced in the Townsville Supreme Court (numbered 685/19) by the applicant lodging a caveat against probate being granted for any of the Wills of the deceased. The material before me demonstrates that, in part, the applicant contends that the estate should be distributed on intestacy.

[11] On 24 February 2020 BBJ, by the Public Trustee as litigation guardian, commenced proceedings in the Brisbane District Court seeking provision from the deceased’s estate under s 41 of the Succession Act 1981 (proceedings numbered BD557/2020). It is said that those proceedings were commenced to preserve BBJ’s rights as the nine month period for instituting Family Provision proceedings against the deceased’s estate would expire on 5 March 2020. By agreement with the solicitors for the executors appointed under the deceased’s last Will, no further steps have been taken in the proceedings pending the outcome of the probate proceedings.

[12] On 2 April 2020, the present applicant also commenced proceedings (numbered 311/2020) in the Townsville Supreme Court seeking provision from the deceased’s estate under s 41 of the Succession Act 1981.

[13] On 24 April 2020, the applicant filed this present application in terms that I have already outlined.

[14] On 5 May 2020, North J ordered that the Townsville proceedings 311/2020 (i.e. the family provision application by the applicant) be remitted to the Brisbane District Court to be heard with the proceedings numbered BD557/2020 (i.e. the family provision application brought on BBJ’s behalf).

[15] The net result is that the applicant has taken active steps to further her own family provision application and is now applying to be the litigation guardian in another family provision application to be heard at the same time as her own application. This is against the background of her taking active steps to stop probate on all Wills made by her father, the deceased.

(1) A person may be a litigation guardian of a person under a legal incapacity if the person—

(b) has no interest in the proceeding adverse to the interest in the proceeding of the person under a legal incapacity.

(2) If a person is authorised by or under an Act to conduct legal proceedings in the name of or for a person with impaired capacity, the authorised person is, unless the court orders otherwise, entitled to be litigation guardian of the person with impaired capacity in any proceeding to which the authorised person’s authority extends.

(3) A corporation, other than the public trustee or a trustee company under the Trustee Companies Act 1968, may not be a litigation guardian.

(1) Unless a person is appointed as a litigation guardian by the court, a person becomes a litigation guardian of a person under a legal incapacity for a proceeding by filing in the registry the person’s written consent to be litigation guardian of the party in the proceeding.

(2) If the interests of a party who is a person under a legal incapacity require it, the court may appoint or remove a litigation guardian or substitute another person as litigation guardian.”

[17] It has been said, and I accept, that a litigation guardian has fiduciary duties to the represented person which the court can oversee and enforce – see Dauguet v Centrelink [2015] FCA 395 at para [113] per Mortimer J.

[18] It has also been said in L v Human Rights and Equal Opportunity Commission [2006] FCAFC 114; [2006] 233 ALR 432 at para [25] that the appointment of a litigation guardian has in substance as its purpose “to protect plaintiffs and defendants who would otherwise be at a disadvantage, as well as to protect the processes of the court”.

“[23] In order to determine whether it is in the interests of Mrs King that her litigation guardians be removed, it is necessary:

(a) to consider whether she is at the relevant time still under a legal incapacity, and

(b) to determine whether there is some reason, established on the evidence, that demonstrates that removal of the litigation guardians is in her interests.

[28] The discretion afforded the court by r 95(2) of the UCPR to remove a litigation guardian is premised on a finding that the interests of the party require that the litigation guardian be removed. That is expressed broadly because it must be able to apply to the many different circumstances which can exist when a litigation guardian is appointed.

[29] Matters which might give rise to circumstances which could lead to a litigation guardian being removed include:

(a) where the litigation guardian has a conflict, for example, where the litigation guardian has an interest contrary to the person under a disability,

(b) where the litigation guardian is not conducting the litigation in an appropriate manner, or

(c) where the litigation guardian seeks orders or other relief which are not in the interests of, or for the benefit of, the person under a disability.” (underlining added)

[20] Further, the Canadian Supreme Court in Gronnerud (Litigation Guardian of) v Gronnerud Estate [2002] SCR 38 417 para [20] said that:

“The third criterion, that of “indifference” to the result of the legal proceedings, essentially means that the litigation guardian cannot possess a conflict of interest vis-à-vis the interests of the disabled person. Indifference by a litigation guardian requires that the guardian be capable of providing a neutral, unbiased assessment of the legal situation of the dependent adult and offering an unclouded opinion as to the appropriate course of action. In essence the requirement of indifference on the part of a litigation guardian is a prerequisite for ensuring the protection of the best interests of the dependent adult. A litigation guardian who does not have a personal interest in the outcome of the litigation will be able to keep the best interests of the dependent adult front and centre, while making decisions on his or her behalf. Given the primacy of protecting the best interests of disabled persons, it is appropriate to require such disinterest on the part of a litigation guardian. (underlining added)

[21] As a preliminary issue, the respondent has orally applied for the amendment of its name on the originating application, pursuant to Rules 375(1) and 377(1)(c) of the UCPR the respondent has been named in the originating application as “Public Trustees of Queensland” rather than the title bestowed by statute, namely “The Public Trustee of Queensland”.

[22] The amendment is clearly warranted and was not opposed by the applicant. The respondent’s application to amend its name in the originating application is granted.

[23] The oral application made on the morning of the hearing to adjourn application is said to be for the purpose of having BBJ assessed by a registered psychiatrist, whose identity is to be agreed by the parties, and that I order this occur as well as some ancillary orders concerning a report from that psychiatrist.

[24] The first substantial difficulty for the applicant is that the respondent does not agree to any psychiatrist undertaking any such assessment.

[25] The second difficulty for the applicant is that she is asking the court to compel a person not a party to the proceeding to undergo a medical assessment. When pressed, the applicant’s advocate accepted that he could not point to a power to do so. In the absence of an express power, whether statutory or created by case law, I do not accept that I have the power to order that BBJ be assessed, and I decline to make that order.

[26] However, the issue remains whether the originating application should be adjourned without an order compelling medical assessment but nonetheless in the expectation that it would allow BBJ to be psychiatrically assessed, should he consent.

[27] The respondent opposes the application on the basis it is inutile, that any assessment is designed to go behind the determination of QCAT appointing The Public Trustee as BBJ’s administrator for all financial affairs and it is inappropriate to adjourn to allow this to occur and finally that any adjournment may eat into BBJ’s meagre assets.

[28] The first point to note is that the originating application was supported by an affidavit from the applicant which, although deficient in that it did not pay close attention to delineating between matters of personal knowledge and those of which the applicant had been told and believed, positively asserted that BBJ was suffering from mental illness. The applicant, by her latest application, now casts doubt on her own account.

[29] I have already mentioned that BBJ is the subject of a Forensic Order. In the course of submissions it became clear that the applicant was in possession of a report from the Mental Health Review Tribunal, concerning a comparatively recent decision to continue the Forensic Order. It seems likely to me, that this was a periodic report generated as a result of a review conducted under s. 433 of the Mental Health Act 2016 (MH Act). The applicant informed the court that the Forensic Order was made by the Mental Health Court, but could not provide any details as to when nor whether it was made based on a finding of unsoundness of mind or a finding that BBJ was not fit for trial. The applicant could tell me that the order continues through to today. It must therefore follow that the underlying condition remains extant – see s. 441 MH Act. That the report does not expressly consider that BBJ cannot control his financial or legal affairs is a distraction, in my view. It is a report of the decision of the tribunal considering matters other than that directly in issue in these proceedings. That is, it was not generated with that specific purpose in mind.

[30] On that basis there seems little point in adjourning the originating application. However, I also record that I hold some doubts whether I can consider that material put before me, albeit by way of oral submission from the Bar table as the confidentiality provisions of the MH Act seem to preclude publication of the report.[2] If that is correct, there is no foundation laid for the adjournment.

[31] I accept there is an issue as to the propriety of allowing an adjournment to permit what appears to be an attempt to go behind QCAT’s determination. That determination carries the necessary acceptance that the Member in making the determination was satisfied that BBJ had impaired legal capacity – see s. 12(1)(a) of the Guardianship and Administration Act 2000.

[32] However I need not determine this issue as I accept that any adjournment of the substantive application is inutile in the sense that the substantive application is doomed to fail regardless of any results obtained during the adjournment.

[33] In my view a conflict of interest arises if the applicant were to replace The Public Trustee as litigation guardian. In the context of a relatively modest estate in which the applicant is making a claim, which claim will be determined at the same time as BBJ’s application, the conflict is evidenced by at least the following features:

1. BBJ’s application has been brought out of an abundance of caution. There have been none of the necessary administrative and procedural steps taken other than the filing of the claim within the limitation period. It necessarily follows there must be a decision made as to whether to pursue it or not. That initial decision impacts on the availability of assets from the relatively meagre estate which would also be available to the applicant in her separate but concurrently heard claim.

2. Similarly, any settlement negotiations or the conduct of any mediation by the applicant necessarily creates a conflict with her own interests and that of BBJ.

3. The High Court in Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201 at 209–210 outlined a two-stage test that must be undertaken in the consideration of family provision applications. The first, broadly speaking, calls for a determination of whether the particular applicant has been left without adequate provision for proper maintenance, education and advancement in life.

The second stage, which only arises if the first question is answered favourably to the applicant, requires a determination of what provision ought to be made out of the estate for the applicant. It has also been noted that one of the relevant considerations for both stages is to consider amongst other things the applicant’s financial position. That must necessarily include his financial position in light of his future care needs.

In this matter it is clear that because of his illness, BBJ has future care needs that are likely to be more costly than the future care needs of the applicant does not depose to any particular illness or need for future costs. This evidences the obvious conflict that, in my view, exists.

[34] None of these issues arise if the Public Trustee remains as, effectively, the litigation guardian. Further, considerations of the protection of the court process as well as breaches of fiduciary duty are avoided if the Public Trustee remains appointed.

[35] The applicant’s legal representative did not accept that there was a conflict of interest arising on the material. In part he submitted that it was his client’s intention to ensure that she and BBJ received equal allocations. That is consistent with her application to in effect have the last Will of the deceased dealt with on intestacy. In my view, it cannot be assumed that that will succeed. Further, the application under s 41 can be pursued regardless of the outcome of the intestacy.

[36] In all the circumstances I am satisfied that, considering r 94 of the UCPR, the applicant does in fact have an interest in the proceeding adverse to the interests in the proceeding of the person under the legal capacity and so she may not on that basis be appointed as a litigation guardian.

[37] I should for completeness note that the applicant has effectively given an undertaking to conduct herself in BBJ’s best interests. If, at least in part because of that undertaking, there is no actual conflict of interest (which as my reasons above demonstrate I consider does exist) there is at least a perceived conflict of interest which should not be countenanced by the court granting the application.

[38] The appointment of the litigation guardian is a discretionary decision and it does not protect court processes or offer the protection to the litigants that is required by the consideration of this style of application by the appointment of a person even under a perceived conflict of interest.

[39] I do not intend by these reasons to suggest that the applicant is deliberately acting in bad faith by bringing the application. It may be that her intentions are good, but the actual fact of a conflict of interest or at least the perception of a conflict of interest cannot be countenanced in my view.

[40] The respondent has brought to my attention the decision of Justice Bond in Doleman v Doleman [2017] QSC 113 at p 6, where his Honour observed that the financial administrator is:

“The person who is prima facie entitled to be litigation guardian – if litigation was to be commenced on behalf of (an incapacitated person).”

[41] This is certainly a relevant consideration if there were to be a contest as to who was the more appropriate of the contended for litigation guardians. However, in my view, and for reasons that I have expressed, the applicant is disqualified from appointment.

[42] As to the second of the matters raised in the cited passage from King and Ors v First and Anor, there is little admissible evidence to suggest any complaint as to the manner in which the Public Trustee is conducting BBJ’s affairs. There had initially been a suggestion that the Public Trustee was charging $150 a month in the role as administrator, but the evidence before me, and as now accepted by the applicant, is that it is in fact costing less than $5 per month and that there is no separate charge for acting as his litigation guardian.

[43] The submission by the respondent that to adjourn the matter would eat into BBJ’s meagre resources derives from the fact that although there is no fee for acting as the litigation guardian, the court costs would nonetheless be borne by BBJ. This is a further discretionary matter which tends to favour not adjourning the application.

[44] In the applicant’s affidavit supporting the originating application, she includes this:

[45] That passage is objectionable on two bases as I see it. It is either an inadmissible statement of opinion given by the applicant or it is something which she has been told by BBJ but the form in which it is provided in the affidavit is defective given that it does not nominate the source of information and the grounds for the belief as to the truth – see r 430 of the UCPR.

[46] Taking a benevolent view and assuming that it is something that she has been told and believed, this is nonetheless only one consideration that must be considered in the course of an application such as this. It is a matter to which I have regard, but to which I do not feel overwhelms the other considerations that I have outlined.

[48] I should for completeness note that the applicant also sought to amend the terms of the originating application to provide for the applicant to be a litigation guardian in general. The respondent opposes that and points to the fact that there is no precedent for such an appointment other than on the statutory basis under the Guardianship and Administration Act 2000. I need not determine that issue as even if the application were amended, it does not resolve the vice which leads me to conclude the application must be dismissed.

[49] The usual rule is that costs follow the event [3], and the respondent has been wholly successful on the application. The respondent has sought its costs be paid by the respondent, and I can see no reason to deny them the benefit if such an order.

[50] I have been provided with a draft order by the respondent. I accept that its terms, subject to one typographical error, are appropriate.

1. Pursuant to r 375(1) and r 377(1)(c) of the Uniform Civil Procedure Rules 1999, the name of the Respondent be amended to “The Public Trustee of Queensland”.

Queensland District Court Decisions

Wheatley v The Public Trustee of Queensland as Litigation Guardian of BBJ [2020] QDC 84 (15 May 2020)