Wheatley v The Public Trustee of Queensland

[2020] QCA 212

Queensland Court of Appeal

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Catchwords

1. Practice and Procedure
2. › Litigation guardian
3. › Replacement of litigation guardian
4. › Conflict of interest
5. › Whether person seeking provision from same estate may be appointed litigation guardian for another claimant
6. › Uniform Civil Procedure Rules 1999 (Qld), rr 94, 95(2)
1. Practice and Procedure
2. › Litigation guardian
3. › Removal of existing litigation guardian
4. › Whether interests of person under incapacity require removal
5. › Onus on applicant to demonstrate grounds for removal
6. › Uniform Civil Procedure Rules 1999 (Qld), r 95(2)
1. Appeal
2. › Leave to appeal
3. › District Court to Court of Appeal
4. › Whether error of law resulting in substantial injustice
5. › Whether primary judge's decision plainly correct

Quick Take

Where a person seeks appointment as litigation guardian in place of an existing litigation guardian, the correct question under r 95(2) UCPR is whether the interests of the person under incapacity require the removal of the existing guardian, not whether the proposed replacement is qualified. A person who is themselves a claimant against the same estate has an interest adverse to the person under incapacity for the purposes of r 94 UCPR, even where they profess an intention to seek equal provision.