January 10, 2016 | 1207 ViewsRACQ rebuffed on QCAT ruling re MVA victim’s financial capacity

The mother of a young man injured in a motor accident in February 2012 obtained rulings from the Queensland Civil and Administrative Tribunal that he lacked capacity to give instructions about his Supreme Court personal injuries claim or to administer any proceeds received.

The rulings under the Guardianship and Administration Act were related to both “financial” and legal matters, which under the scheme established by the Act – if not related to financial or property affairs – fall in the “personal” category.

RACQ – the CTP insurer of the at-fault vehicle – objected that it had been given no notice of the QCAT application.

On that basis and because the tribunal had, it claimed ignored some medical evidence as to the man’s capacity that was available or potentially available at the time of the hearing.

RACQ also contended that the declaration that the youth could not manage his finances was not necessary at the present stage of the Supreme Court proceedings and had the effect of “ousting” that court’s jurisdiction.

Justice Tim Carmody sitting on appeal with senior member Peta Stilgoe, ruled that as the tribunal was not obliged to notify RACQ of the proceedings, it had no interest in them and no right to be heard on the application.

Given that any incapacity of the man – donned by the tribunal with the pseudonym “Will Kitt” to preserve privacy – to manage finances might affect the extent of his compensation and that the parties were engaged in settlement negotiations, the tribunal consideration’s of the capacity issues was in their view, clearly appropriate regardless of whether that was in RACQ’s absence.

Although RACQ was not eligible to lodge an appeal as-of-right, the tribunal went on to consider whether it ought nevertheless give it leave to appeal.

Justice Carmody and his colleague senior member noted the tribunal’s role was to make decisions only in the interest of an impaired person. “The tribunal is not concerned with the financial consequences of a declaration of capacity” to a third party, they wrote.

On the other hand, RACQ’s interest in the tribunal proceeding was clearly only to improve its own financial position. “It had no interest in the man’s rights, value to society, independence or self-reliance”.

The tribunal refused leave to appeal but left open the possibility of it filing a new application for a declaration about capacity on the basis of any new material it might be able to put before it.

In arriving at their decision, Justice Carmody et al noted that the tribunal had not – in making the capacity rulings – deny RACQ natural justice or “oust the jurisdiction of the Supreme Court or usurp its decision-making authority”.

RACQ Insurance Limited v Kitt [2015] QCATA 158 Justice Carmody Senior Member Stilgoe OAM published 23/11/2015

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