Section 59(2) PT Act – rehabilitative expenses paid during the claim and query court sanction

McKay v McKay and Anor [2010] QSC 84

I refer to my earlier posting regarding the jurisdiction of the court in respect of sanctioning compromises or settlement for persons under a legal disability pursuant to section 59 of the Public Trustee Act 1978 (Qld).

In this instance, her Honour Margaret White in an ex tempore decision held that an agreement to make an advance payment for rehabilitative needs, which exceeded the statutory limit (and so would fall under another item of damages) before the claim had been resolved did not fall within the section requiring a sanction:

The second respondent, Suncorp Insurance, is willing to fund the additional $109,000 by way of an advance on the damages or settlement moneys which it anticipates ultimately having to pay, rather than as a rehabilitation measure. The applicant’s litigation guardian is satisfied that that is an appropriate way of dealing with the matter.

As I have said, the applicant sustained severe brain damage such that she is now a person under a legal disability. She brings this proceeding by her litigation guardian, who is her daughter. The first respondent (the person allegedly responsible for her injuries) is her husband. In July 2007 the Guardianship and Administration Tribunal appointed the applicant’s husband and her daughter as her joint administrators.

The application has been brought because the second respondent, Suncorp, asserts that it is a matter requiring the sanction of the Court pursuant to section 59(2) of the Public Trustee Act. I apprehend that Suncorp’s real concern is to obtain a valid and binding receipt for the moneys and a legally binding assurance that the moneys will be deducted from the damages ultimately ordered or agreed to be paid. While I can understand Suncorp’s concern, I am not satisfied that this is a matter in relation to which the Court has the necessary power.

As I understand the law, Suncorp is under no obligation to make this payment at this time. Mr Grant-Taylor of Senior Counsel, who appears for the applicant, has submitted that it is being made without consideration. Mr Jensen, the solicitor for Suncorp, has submitted that there is consideration, namely a compromise of rehabilitation rights. I am not in a position to resolve that dispute.

But, be that as it may, section 59(2) is in my view simply not engaged. That provision deals with “the settlement or compromise of a claim for money or damages by or on behalf of a person under a legal disability before proceedings are commenced. Such a settlement or compromise requires the sanction of a Court or the Public Trustee but no money or damages agreed to be paid in respect of the claim, whether by settlement or compromise, shall be paid to anyone other than ‘the appropriate person’ for the legally disabled person unless by direction of a Court.” “Appropriate person” is defined in subsection (1A) as, in the circumstances of this case, the administrators.

Subsection (2) is not engaged because this is not a settlement or compromise out of Court of a claim for damages. Accordingly I consider that the application ought to be dismissed.

Brisbane Barrister – David Cormack

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