What is ‘capacity’ in civil litigation?

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An adult person is presumed to have the legal capacity to conduct their affairs.[1] However, in civil proceedings, a person is under a legal incapacity if they are under 18 or are a person with ‘impaired capacity’.[2] A person with impaired capacity is defined as a person who ‘is not capable of making the decisions required of a litigant for conducting proceedings’.[3] When there is doubt about the capacity of a person who is a party in court proceedings, it is necessary for the issue of capacity to be decided in order to ensure their proper protection.

Who decides the issue of capacity?

The capacity of a person involved as a party in litigation is decided by the Supreme Court or by the Queensland Civil and Administrative Tribunal (QCAT).

Consideration by the court

In its inherent jurisdiction, the Supreme Court has the power to make a declaration of capacity.[4]

Consideration by QCAT

The jurisdiction of QCAT is established under a separate statutory scheme[5] which defines and deals with capacity and the appointment of an administrator and guardian (as distinct from a ‘litigation guardian’). QCAT has exclusive jurisdiction for the appointment of guardians and administrators for adults with impaired capacity. Appointment of an administrator by QCAT does not make the administrator the litigation guardian for the court proceeding. The QCAT appointment is only for the administration of the adult’s financial and property affairs. Only the courts can appoint a litigation guardian for civil proceedings.

Both the Supreme Court and QCAT can transfer the proceedings to the other at their own initiative or on the application of an ‘active party’ to the proceeding.[6]

Issues for self-represented litigants

There are few supports for litigants whose capacity is impaired, especially if they lack the resources to engage a solicitor to represent them or do not have the support of family or friends to act as guardian. This problem is compounded if a litigation guardian is appointed because the litigation guardian must be represented by a solicitor.

To effectively participate in court proceedings, self-represented litigants must understand the legal issues and the civil procedure rules and have the skills to communicate their case to the court. These abilities are difficult for a self-represented litigant without impairment. While the courts are mindful that a self-represented litigant’s difficulties in understanding and coping with the stress and complexities of litigation may not be indicative of a lack of capacity,[7] the extra demands on litigants with impaired capacity means that it will be more difficult for them to navigate the proceedings and may also mask their incapacity.

When a party is unrepresented, if they do not raise the issue themselves with the Court or QCAT, consideration of their capacity can remain in limbo, leading to difficulties and delays in resolving the court proceedings.

How is the issue of capacity of a party raised?

In addition to the party or their solicitor raising the issue of capacity, it can also be raised by the party’s opponent or their legal representative or by the court itself.

By the opposing party’s lawyers

For the opposing party, the consequences of a declaration of incapacity can be the freezing of the proceeding, preventing them from prosecuting or defending the claim.

When the issue is considered by QCAT, it is difficult for an opposing party to establish they have an interest in a proceeding. In a case[8] where the defendant’s solicitor in court proceedings applied to the Guardianship and Administration Tribunal (now QCAT) for a declaration of capacity after evidence was raised that the plaintiff was diagnosed with paranoid schizophrenia, the Tribunal determined that an “interested person” must be interested in the ongoing welfare of the individual (as distinct from the proceedings or litigation). The Tribunal held that the solicitor was not such a person.[9]

The issue of whether an opposing party has standing to apply for a determination about capacity does not apply where the application is made to the Court rather than to QCAT.[10]

On the court’s initiative

The powers of the court are typically utilised when the court is faced with an application by a litigant’s solicitor that relates to the capacity of their client. Indeed, the courts, seeking to remain impartial, can be reluctant to initiate an investigation into a litigant’s capacity or make their own judgments about capacity when there has been no application made by the party themselves, when it is not raised by the other party, when there is no documentation about the party’s condition, or when on brief appearances there is limited opportunity for the court to observe the litigant.

How is the issue of capacity determined?

Determination by the court

The Supreme Court can decide the issue of capacity at any time during the proceedings, and this usually occurs when the party or their solicitor raises the issue and applies for a declaration of capacity and appointment of a litigation guardian.

When the issue of capacity arises either directly or indirectly from the subject matter of the proceedings, the courts and legal representatives can be guided by assessments of neuropsychologists or psychiatric reports submitted in evidence about the party’s capacity to provide instructions, to make decisions and to understand the nature of the proceedings.

However, the courts and legal representatives do not always have access to expert reports, for example where the party’s psychological condition is not an issue in the proceedings, and a judge is not always in a position to make a decision on capacity from only what they see in the court room and the documentation provided. In those circumstances, the court may refer the issue to QCAT for a declaration of capacity. The party or their solicitor may also approach QCAT directly for a declaration of capacity and then apply to the Court for appointment of a litigation guardian if incapacity is determined.

Consideration of capacity is a legal issue not a medical one.

In the context of litigation, the following are relevant factors (although not an exclusive list) a court will consider in assessing a party’s capacity:

  • Whether the person had the ability to understand that he or she required advice in respect of the relevant legal proceeding;
  • Whether the person had the ability to communicate this requirement to someone who could arrange an appointment with an appropriate advisor or, alternatively, whether he or she could arrange such an appointment of his or her own accord;
  • Whether the person had the ability to instruct the advisor with sufficient clarity to enable him or her to understand the situation and to advise the person appropriately; and
  • Whether the person had the ability to make decisions and give instructions based upon, or otherwise give effect to, such advice as might be received.
  • Whether the plaintiff understands the factual framework for his or her claims and the type of evidence required to succeed in his or her claims;
  • Whether the plaintiff is capable of understanding what is relevant to the proceeding and what is not relevant when these matters are explained to him or her;
  • Whether the plaintiff is capable of assessing any settlement proposal on its merits, having regard to the state of the evidence, the parties’ submission and other developments in the proceedings as at the time the proposal is made?

Under Queensland’s Guardianship and Administration Act 2000 (GAA), an adult’s capacity is specific to a particular matter, determined in the context of the matter.[11] An adult may lack capacity for one issue, but have capacity for another at the same time. In the conduct of litigation, a declaration of incapacity and appointment of a litigation guardian is usually made for the whole proceedings.

In assessing whether a party has impaired capacity, it is difficult to take guidance from previous decisions on how the court determines the issue of capacity and each case should be approached on its own facts.

Determination by QCAT

QCAT can make a declaration of capacity on its own initiative or on the application of the individual or another interested person.[12]

QCAT’s specialist guardianship and administration jurisdiction can be better placed to assess capacity in the absence of sufficient evidence before the court. QCAT can more closely examine the party in a less formal, less intimidating and specialised setting.

The tribunal process allows for other interested parties to make submissions and for reports to be obtained for the particular issue at hand, rather than a court relying on the information that may have been generated for other purposes or on their own observations of the party and the submissions of the lawyers for the other party who may have a conflict of interest.

What are the consequences of a finding of incapacity?

When the Supreme Court or QCAT finds that a party is a person with impaired capacity, they become a person under a legal incapacity[13] and may only start or defend proceedings by a litigation guardian.[14]

When a party to a proceeding becomes a person with impaired capacity during the proceeding, a person cannot take any further step in the proceeding without leave of the court, until a person files written consent in the Registry to be the plaintiff's litigation guardian[15] (pursuant to) and only then if the person follows the court's directions on how to proceed.[16]

A person under a legal incapacity can only start, defend or continue proceedings by their litigation guardian and a litigation guardian who is not a solicitor must be represented by a solicitor.[17]
  1. Schedule 1, Principle 1 and s7 Guardianship and Administration Act 2000 (GAA)
  2. Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld)
  3. Schedule 5 of the Supreme Court of Queensland Act 1991 (Qld)
  4. Till v Nominal Defendant [2010] QSC 121
  5. sections 12, 81 and 146 Guardianship and Administration Act 2000 (GAA)
  6. s 241 GAA
  7. Thompson v Smith [2005] QCA 446
  8. Re MAD [2007] QGAAT 56
  9. Re EEP [2005] QGAAT 45
  10. Pratt v Dickson [2000] QSC 314; s 241
  11. Gibbons v Wright (1954) 91 CLR 423
  12. s 146 (2) GAA
  13. Plumley v Moroney and Hunt [2014] QSC 3
  14. Rule 93(1) of the Uniform Civil Procedure Rules 1999 (UCPR)
  15. Rule 95 (1) UCPR
  16. UCPR r 72 (1)
  17. Rule 93, Uniform Civil Procedure Rules 1999