Determination of capacity where the plaintiff is unwilling

Till v Nominal Defendant [2010] QSC 121


The application regarding Mr Till’s capacity was brought by his lawyer in circumstances where Mr Till refused to be examined by a psychiatrist to determine capacity.

The principal question was whether there was jurisdiction to intervene and if so on what basis. The incident giving rise to the claim was on 10 May 1996, and his Honour McMeekin J was conscious of any further delay.

The capacity of Mr Till flowed from a number of statements he made:

[12] First, Mr Till has made statements in the course of giving evidence that are suggestive of a disturbed mind. He at all times rejected that he was in fact Peter Till and would not answer any question prefaced by a reference to his name. His views are reflected in this introduction to a document tendered at his insistence in which he states: “i the living man the sovereign being the living agent/scribe who represent the energy part of the artificial person/persona the birth certificate/corporation Peter : Till living in body….”.2

[13] In another document Mr Till records his definition of “Person/Natural Person/Individual” as being “1. Under the law of man, this means an artificial entity which is subject to the government and not a real soul, or body claimed by a soul” or “2. A real live soul and body”.3 He then goes on: “Only I can choose which definition applies at any time I feel. This word I generally use as definition number 2, but when dealing with souls who do not understand the difference, I will use definition number 1 and possible (sic) switch back to definition 2 at will”.

[14] In another document Mr Till signs as “agent for the artificial person”.4

[15] It is this dichotomy between the two possible entities that are potentially Mr Till and between which he might switch at will that caused Mr Mullins to become concerned. It became increasingly unclear to him whether Mr Till accepted that he was responsible for evidence that he might give or responsible for accurate disclosure of facts or documents.

2 See p10 of Ex SPB1 To the affidavit of Mr Byrne of 25 March 2010.

3 See p34 of Ex SPB1 To the affidavit of Mr Byrne of 25 March 2010.

4 See p11 of Ex SPB1 To the affidavit of Mr Byrne of 25 March 2010.

And further there were unrelated incidents:

[18] Fourth, Mr Till has a history of litigation, the details of which seriously raise the issue of his mental capacity. On 8 January 2007, Mr Till was apprehended on his entry into the Magistrates’ Court at Brisbane with two cannabis plants in his possession. They were seized by the security staff when placed on the conveyor for screening. As a result he was charged and found guilty of possessing a dangerous drug. He appealed to the District Court and McGill DCJ, in what was described on appeal as a scholarly judgment,5 declined to uphold an apparent attempt to claim sovereign immunity – “apparent” as his Honour gleaned the ground from material filed that he described as “unintelligible”. As a result of the documentary material placed before the Court of Appeal, Daubney J observed that either Mr Till was “significantly disconnected from reality” or “treating the judicial system as a joke”: Till v QPS [2008] QCA 304.

5 [2008] QDC 74.

His Honour relied on psychiatric evidence that if Mr Till did indeed believe this, there was cause to be concerned as to his capacity. This was heightened by Mr Till’s refusal not to be examined, which would advance his claim against the Nominal Defendant in his 1996 claim.

His Honour reviewed the inherent jurisdiction of parens patriae at paragraph 19 and concluded:

[24] Whilst the parens patriae jurisdiction of this court is preserved,6 the responsibility for appointing guardians and the function of holding enquiries passed to the Guardianship Tribunal constituted under the Act and now to QCAT: Guardianship and Administration Act 2000, s 12; Queensland Civil and Administrative Tribunal Act 2009, s 10.

[26] QCAT has “exclusive jurisdiction for the appointment of guardians… for adults with impaired capacity for matters”: s 82 of the Act; and has as one of its functions the function of “making declarations about the capacity of an adult… for a matter”: s 81(1)(a) of the Act. The relevant matter is within paragraph 18(d) of Schedule 2 to the Act – “bringing or defending a proceeding… whether before or after the start of a proceeding”. In short QCAT has the responsibility to investigate matters relating to capacity and the exclusive jurisdiction to appoint a guardian if needed.

 6 Guardianship and Administration Act 2000 (Qld), s 240.

Accordingly, his Honour referred the issue of capacity to QCAT and stayed the present proceedings. In respect of general discussion of parens patriae jurisdiction, I refer you to my earlier posting regarding Dickson v Australian Associated Motor Insurers Limited [2010] QSC 69.

Brisbane Barrister – David Cormack

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