Amending court documents - Queensland Courts

Amending court documents – Queensland Courts

Sometimes in civil proceedings, you may want to amend one of your court documents. This factsheet tells you how to amend your court documents.

Similarly, the other party might amend one of their court documents, for example their statement of claim. This factsheet tells you how to respond.

Amending a court document

Under the Uniform Civil Procedure Rules 1999 (UCPR) the court can allow an amendment of a claim, a pleading, an application or any other document.

There are six limits on the ability of a party to amend a document:

  1. To amend an “originating process” you need the leave of the court (rule 377(1)). If the amendments are technical or if you haven’t yet served the plaintiff then a Registrar can give that leave. An originating process is a Claim, Originating Application or a Notice of Appeal.
  2. If you are amending a document so that you are adding a new party, changing the capacity in which a party is suing, or claiming a new cause of action, and the limitation date for your cause of action has expired, you will need to seek the leave of the court to make the amendment (rule 376).
  3. Once a request for trial date has been filed, you need the leave of the court to amend any court documents (rules 380 and 470(a)). The courts can be quite strict on allowing amendments to documents during the course of a trial so it is best to bring any applications well in advance of the court hearing.
  4. While you can amend, the other party can ask that you pay their costs of responding to the amendment (rule 386).
  5. If you are amending your Defence, and if your Defence made any deemed admissions, then the plaintiff might object to you amending your Defence to effectually withdraw your deemed admissions, unless you first seek the leave of the court to withdraw an admission (rule 166(1)).
    • In that case, we recommend that you write to the plaintiff’s lawyers, provide them with a copy of your amended Defence, and ask them if they agree to those amendments without the need (and cost) of applying to the court for leave to amend or withdraw those admissions.
    • If they don’t agree, then you can bring an application to the court using a form 9 application and a form 46 affidavit. You should exhibit your letter to the plaintiff to your affidavit.
  6. You should always bear in mind rule 5 of the UCPR. This rule requires a party to court proceedings to proceed quickly and efficiently to resolve their dispute. While on one reading of rule 378, a party can amend a document as many times as they like before a request for trial date is filed, this has got to be considered in light of the overall purpose and philosophy of the UCPR.
    • In any event, repeated amendments of documents, while sometimes necessary, become very difficult to read and are confusing for not only the other party, but also for the judge hearing your case.

How to amend

To amend court documents you need a copy of the original document to work from.

You can not just add and remove material from the documents. Additions and deletions need to be clearly shown and distinguishable (rule 382).

You should underline new material.

You should rule a line through material that you are no longer relying on.

E.g. The Defendant was the registered owner of the property at 100 Green Street, Brisbane in the State of Queensland, being described as Lot 1 on Survey Plan 12 345 12 346 Parish of Brisbane County of Stanley in the State of Queensland.

If you are amending a document that has already been amended, then on the front page of the document that you have amended you should:

  1. amend the title of the document; and
  2. write down the left hand side of the page, “Amended pursuant to the order of [INSERT NAME OF JUDGE] dated [INSERT DATE OF ORDER]” if a judge made an order for the amendment, otherwise “Amended pursuant to rule 378 of the Uniform Civil Procedure Rules 1999.” In both cases, you also need to sign and date this notation (rule 382).

Amending out of time

The court has a general discretion to allow amendments that have been made after the limitation date that applies has expired. You can find more information by reading LawRight’s factsheet Limitation periods.

The court’s approach has been to allow these amendments where the new cause of action arises out of “substantially the same facts” that have previously been pleaded. This means that if the amendments change the cause of action you are relying on, but you are still using the same facts that you pleaded in your initial statement of claim, then the court is more likely to allow an amendment even if it is out of time: Draney v Barry [202] 1 QdR 145.

Responding to an amendment

If you receive an amended document from the other party, you should consider if you need to respond to it.

For example, if you receive an Amended Statement of Claim that amends the amounts of damages that the plaintiff is claiming, but your existing Defence responds to the allegations that have been made, then you may not need to amend (rule 385(3)).

On the other hand if the Amended Statement of Claim raises new allegations that are not responded to by your Defence, then you can respond by amending your Defence.

Under rule 385(2) of the UCPR a response to an amended pleading is due eight days after the amended pleading was served on you. This is the case even where an Amended Statement of Claim is served, and means that you can have very little time in which to respond to an amended pleading.

You can also respond to an amended pleading, by applying to disallow the amendments (rule 379).

by Karen Dyhrberg

Amending court documents - Federal Courts

Amending court documents – Federal Courts

This factsheet sets out the relevant rules for making changes (called “amending”) a court document after it has been filed and how to respond to an amended document if one is served on you by the other party to your proceeding.

Amending a court document

The Federal Circuit Court (“FCC”) and the Federal Court each have different rules that set out when you can amend a court document. Circumstances in which you may need to amend a document include where you:

  • have not named the correct respondent;
  • need to change the final orders you are seeking; or
  • have not included an essential fact within your initial application.

This is not an exhaustive list. In all circumstances, you should consider whether an amendment is necessary. This is particularly so in the FCC which is a more informal court and any deficiencies in your pleadings can be often cured by filing an affidavit containing the relevant facts of your case.

Federal Circuit Court

Under the Federal Circuit Court Rules 2001 (Cth) (“the FCC Rules”) the FCC can allow the amendment of any document (other than an affidavit) at any stage in a proceeding (rule 7.01 of the FCC Rules).

If you are amending a document so that you are adding a new party, changing the capacity in which a party is suing, or claiming a new cause of action, and the limitation date for your cause of action has expired, there are certain matters you will need to demonstrate in order to be allowed to amend. These requirements can be found in rule 7.03 of the FCC Rules and include:

  1. To add a new party after the relevant limitation period has expired: that you are seeking to correct a genuine mistake and were not attempting to mislead the court or other parties or cause doubt as to the identity of the correct party to the proceedings.
  2. To change the capacity in which you are seeking orders (for example, by adding a counterclaim) after the relevant limitation period has expired: that you were able to seek the orders in your amended capacity at the time the proceedings were started.
  3. To include a new cause of action after the relevant limitation period has expired: that the new cause of action arises out of the same, or substantially the same, facts as the cause of action that is already being claimed in the proceeding.

To ask the FCC for permission to amend a document you will need to apply by filing and serving an Application in a Case and an Affidavit. Both these forms can be found on the Federal Circuit Court’s website.

It is also recommended that you complete a draft of the amended document (see “How to Amend” below) and attach that to your affidavit as an annexure. While this is not a formal requirement, it will expedite the process and assist the court and the other party to clearly understand what amendments you are seeking to make.

Under the ‘Order sought’ section of the Application in a Case you should briefly state the orders you want the court to make. For example:

  1. Pursuant to rule 7.01 of the Federal Circuit Court Rules 2001 the Applicant be granted leave to file and serve an Amended Application – Fair Work Division in the form of Annexure JC-A to the affidavit of John Citizen dated 1 January 2013 and filed herewith.

In the Affidavit, you will need to set out the reasons why you need the amendment and address any particular points required by rule 7.03.

Federal Court

The Federal Court Rules 2011 (“the Federal Court Rules”) set out the requirements for amendment of an Originating Application, Pleading, Cross-claim or Notice of Appeal. The relevant rules are:

  1. For amending an originating application, rules 8.21 to 8.25;
  2. For amending the parties to a proceedings, rule 9.54;
  3. For amending a cross-claim, rules 15.15 to 15.19;
  4. For amending pleadings, rules 16.51 to 16.60;
  5. For amending a Notice of Appeal (other then an appeal from the AAT), rule 36.10; and
  6. For amending a Notice of Appeal from a decision of the AAT, rule 33.14.

There are two types of documents you can amend in certain circumstances without getting permission (“leave”) from the court. These are:

  • Under rule 16.51 pleadings (which includes a Statement of Claim, Statement of Cross-claim, Defence or Reply) can be amended once before pleadings close (see rule 16.12 for the definition of ‘close of pleadings’) without leave or a second time if each other party consents; and
  • Under rule 36.10 a Notice of Appeal can be amended by filing a supplementary Notice of Appeal within 28 days after filing the original Notice of Appeal.

In all other circumstances, you will need to obtain the leave of the court before you can file an amended document. If you need to ask the Federal Court for leave to amend a document you will need to apply by filing and serving an Interlocutory Application and an Affidavit. Both these forms can be found on the Federal Court’s website.

It is also recommended that you complete a draft of the amended document (see “How to Amend” below) and attach that to your affidavit as an annexure. While this is not a formal requirement, it will expedite the process and assist the court and the other party to clearly understand what amendments you are seeking to make.

Under the ‘Order sought’ section of the Interlocutory Application you should briefly state the orders you want the court to make. For example:

  1. Pursuant to rule 8.21 of the Federal Court Rules 2011 the Applicant be granted leave to file and serve an Amended Originating Application in the form of Annexure JC-A to the affidavit of John Citizen dated 1 January 2013 and filed herewith.

In the Affidavit, you will need to set out the reasons why you need the amendment and address any particular points required by the rules relevant to the document you are seeking to amend.

How to amend

To amend court documents you need a copy of the original document to work from.

You cannot just add and remove material from the documents. Additions and deletions need to be clearly shown and distinguishable. This is achieved by underlining new material and ruling a line through material that you are no longer want to include.

Eg: The Defendant was the registered owner of the property at 100 Green Street, Brisbane in the State of Queensland, being described as Lot 1 on Survey Plan 12 345 346 Parish of Brisbane County of Stanley in the State of Queensland.

On the front page of the document that you have amended you should:

  1. Amend the title of the document to distinguish it from the original version (e.g. “ Amended Originating Application”).
  2. When amending an originating application, notice of cross-claim or pleading in the Federal Court, write down the left hand side of the page, “Amended on [INSERT DATE OF FILING] pursuant to the order of [INSERT NAME OF JUDGE] dated [INSERT DATE OF ORDER]”, if a judge made an order for the amendment, otherwise “Amended on [INSERT DATE OF FILING] pursuant to rule [INSERT RELEVANT RULE FOR PARTICULAR DOCUMENT] of the Federal Court Rules 2011 (Cth).”

Filing and service of the amended document

An amended document, whether amended with or without leave of the court, needs to be filed in the relevant registry and a sealed copy served on the other parties to the proceeding as soon as possible.

Other points to keep in mind

  • The courts can be quite strict on allowing amendments to documents during the course of a trial so it is best to bring any applications well in advance of the court hearing.
  • While you can amend, the other party can ask that you pay their costs of responding to the amendment.
  • Repeated amendments of documents, while sometimes necessary, become very difficult to read and are confusing for not only the other party, but also for the judge hearing your case.

Responding to an amendment

If you receive an amended document from the other party, you should consider if you need to respond to it.

For example, if you receive an amended statement of claim that amends the amount of damages that the plaintiff is claiming, but your existing defence responds to the allegations that have been made, then you may not need to amend your Defence. On the other hand if the Amended Statement of Claim raises new allegations that are not addressed by your Defence, then you can respond by amending your Defence. Under rule 16.55(4) of the Federal Court Rules an amended defence must be filed within 28 days after the amended Statement of Claim was served on you.

In the Federal Court you can also respond to an amended pleading by applying for it to be disallowed under rule 16.52 of the Federal Court Rules. An application of this type needs to be made within 14 days after the date on which the amended pleading was served on you.

Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

by Karen Dyhrberg

Alternative Dispute Resolution - Offers to settle

Alternative Dispute Resolution – Offers to settle

The Uniform Civil Procedure Rules 1999 (UCPR) encourage the parties to attempt to resolve civil cases before the need for a trial.

An offer to settle can either be made formally under the UCPR, or it can be made informally.

Offer to settle under the UCPR

Chapter 9 Part 5 of the UCPR allows any of the parties to a matter to make an offer to settle a case.

The UCPR encourages the parties to a case to reach a settlement, by potentially rewarding a party who makes a favourable offer (that is an offer that is better than the outcome at trial) that the other party rejects.

An offer to settle under the UCPR:

  1. Can be made by any party to the proceeding.
  2. Must be made in writing (rule 353(3)).
  3. Must say that it is made under Chapter 9 Part 5 of the UCPR (rule 353(3)).
  4. Can be served at any time before a verdict (in a jury trial) or judgment is given (354(1)), or if a judgment is conditional on an assessment of damages, before that assessment has taken place (rule 354(3)).
  5. Must specify how long the offer remains open, which must be at least 14 days (355(1)).
  6. Does not have a prescribed form.
  7. Is confidential. The fact that an offer is made or the terms of that offer should not be disclosed to the court unless the offer is accepted (rule 357(1)), or until after a final court decision is granted, at which time the offer becomes relevant to the issues of costs.
  8. Can be accepted by serving a written notice of acceptance on the party who made the offer (rule 358) within the time period for acceptance.

“Without prejudice”

To encourage the parties to settle a dispute, communications between parties for the purposes of resolving a dispute, including offers to settle, can be made “without prejudice.”

This means that the contents of those “without prejudice” letters and conversations cannot be put before the court hearing the case. “Without prejudice” communications may include admissions or offers to settle the proceedings, and the court considers that the parties should be able to negotiate openly without the risk of these discussions being disclosed to the court.

If you are writing a letter that makes an offer to settle you should write “without prejudice” at the top of the letter. If you are writing a “without prejudice” letter, you should not address any other issues or matters in that letter.

If you are having a discussion about settling the case with the lawyer for the other party or the other party, you should say at the beginning of the conversation that you are contacting them for a “without prejudice” discussion.

Failure to accept offer and costs

A failure by a party to litigation proceedings to accept an offer is relevant to costs. The consequences are set out in the UCPR and it is necessary to distinguish a plaintiff’s offer from a defendant’s offer.

Costs if made by the plaintiff (rule 360).

If the defendant does not accept an offer of compromise by the plaintiff, the plaintiff is entitled to indemnity costs if:

  1. judgment for the plaintiff is equal to or better than the offer;
  2. the plaintiff’s offer has to be of a compromise: Jones v Millward [2005] 1 QdR 498;
  3. the plaintiff was ready willing and able to comply with the offer; and
  4. the court is not satisfied that another order would be more appropriate.

These costs extend from the commencement of proceedings until judgment.

Example:

On 1 June 2010, Paul sues Doris in the District Court for $200,000 for breach of contract. On 1 December 2010, Paul offers to settle the case for $150,000. Doris rejects the offer. On 1 June 2012, the District Court finds in Paul’s favour, and awards him $160,000. Paul is entitled to his indemnity costs, which are $40,000.

On the other hand, if Paul offered to accept $175,000, his result at trial is worse than his offer to settle and he is only entitled to his standard costs which are $25,000.

Costs if offer made by the defendant (Rule 361).

Where the defendant makes an offer which the plaintiff does not accept, and the plaintiff obtains judgment that is not more favourable than the offer, it is necessary to separate the period before the offer from the period after it.

In that case, the usual position is that:

  1. the plaintiff is entitled to standard costs up to the date of service of the offer; but
  2. the plaintiff must pay the defendant’s standard costs for the period after the offer was served.

If the offer is served during the trial, the position is altered. The Plaintiff remains entitled to standard costs up to the end of the day on which the offer is served, however, the Defendant is entitled to indemnity costs from the beginning of the next day.

Example:

Using the above scenario, on 1 August 2010, Doris offers to pay $165,000. Paul rejects this offer. On 1 June 2012, Paul obtains judgment for $160,000.

Because the offer Paul rejected was better than the judgment he received, Paul only gets his costs up to 1 August 2010, which are only $5,000. Paul then has to pay Doris’ costs from 1 August 2010 to 1 June 2012, which are $20,000.

By giving the cost incentives to parties, the UCPR encourages them to make realistic offers that they feel have a good chance of being accepted.

Turning down an offer to settle can have serious cost consequences to a party. It is possible to obtain a favourable judgment from the court, but to essentially lose because of the cost consequences.

Informal settlement offers

In addition to a settlement offer under the UCPR, you can also make an informal settlement offer.

Such an offer should state either that it is “without prejudice save as to costs” or say that it is a “Calderbank v Calderbank” offer.

More factsheets about Going to Court

by Karen Dyhrberg

Health care planning

Health Care Planning

Advance Care Planning involves setting out your wishes now for your future health and medical care.

There are three main types of advance care planning. These are:

  1. Enduring Power of Attorney
  2. Advance Health Directive; and
  3. Statement of Views.

These forms of advance care planning only come into effect when you are no longer able to speak for yourself.

1. Enduring Power of Attorney (EPA)

An Enduring Power of Attorney (EPA) is a formal document used by an adult (the principal) to authorise one or more persons (the attorneys) to make personal and/or financial decisions on the principal’s behalf if the principal lacks capacity to make those decisions. An EPA allows you to name someone to make decisions on your behalf if or when you can no longer do so. That person (referred to as your “attorney”) can be authorised to make financial (money) decisions, personal decisions (for example, relating to health care), or both. An attorney appointed for personal matters will become the primary contact if you need medical treatment. People often make an EPA when they make a Will.

The person you select cannot make decisions about “special health matters” (e.g. organ donation). Those decisions are made by your next of kin (closest relative).

An example of an enduring power of attorney document that you can complete online can be found at: https://publications.qld.gov.au/dataset/power-of-attorney-and-advance-health-directive

Paper copies can also be obtained from many newsagents.

For more information, see LawRight’s:

2. Advance Health Directive (AHD)

This legally binding document tells health care professionals what treatment you would like to receive (or not receive) in the event that you are no longer able to make your wishes clear (e.g. you might be unconscious). While you are still able to speak for yourself, the Advance Health Directive will not be used.

Health professionals treating you must abide by your instructions in the Advance Health Directive, unless they are not consistent with good medical practice (you might have asked for something that could make your health worse) or are illegal (eg. a request for euthanasia).

When you fill out an Advance Health Directive, your doctor must agree that you understand your health condition(s) and the effect of making the Advance Health Directive. It is worth talking with your doctor before completing any forms.

You must also be at least 18 years old.

View LawRight’s step-by-step guide to completing an Advance Health Directive (with links to electronic forms) can be found by clicking the box below.

3. Statement of Views/Choices

If the person has completed an Enduring Power of Attorney or Advance Health Directive whilst they had capacity, they don’t need to do anything else. However, if a person lacks legal capacity and they have not pre-arranged an EPA or AHD, they may be able to get assistance to prepare a Statement of Views/Choices. Unlike an Advance Health Directive or EPA, this document lacks legal force, but it still may help guide medical and care practitioners in deciding care arrangements. A Statement of Views/Choices is usually prepared by a family member in collaboration with care professionals.

Read a more detailed explanation about a Statement of Views.

For information on other decision-makers for a person without legal capacity, such as the appointment of a guardian for health care for a person by the Queensland Civil and Administrative Tribunal (‘QCAT’) or appointment of a statutory health attorney see the factsheets at: Guardianship and Administration.

External resources

  • Public Guardian – The Office of the Public Guardian is an independent body, working to protect the rights and interests of adults who have an impaired capacity to make their own decisions.

More factsheets about Health Care Planning.

Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

by Karen Dyhrberg

Statement of views

Statement of Views

 

A Statement of Views/Choices is a document that tells health care professionals what treatment a person would like, but unlike an Advance Health Directive, it can be made by or for someone who does not have legal capacity and it is not legally binding.

Who can complete a Statement of Views/Choices

A Statement of Views/Choices is different from an Enduring Power of Attorney and an Advance Health Directive because it can be completed by someone else. For example, a family member might complete a Statement of Views for a person who has an intellectual impairment or who is suffering from a medical condition that means they cannot give directions about their own future health care.

You can also fill out a Statement of Views for yourself, but because it is not legally binding, doctors and your next of kin will always take more notice of an Advance Health Directive.

Purpose of a Statement of Views/Choices

The major purposes of completing a Statement of Views/Choices on behalf of a person without capacity are:

  • To inform health care professionals of relevant medical information or diagnoses about the person, in case there is no time to consult with you prior to making treatment decisions
  • To inform health care professionals of what you believe the person’s treatment wishes would be, in case there is no time to consult with you prior to making treatment decisions
  • To ensure health care professionals are aware of your role as a point of contact for decision-making
  • To ensure health care professionals know who are the person’s usual medical treatment providers and how to contact them
  • To document the person’s social, behavioural, cultural or religious attributes and preferences so that these can be taken into account when appropriate

How can I make a Statement of Views/Choices

Below are links to two template Statement of Views/Choices, one drafted by LawRight and one by Queensland Health. Both templates include suggestions as to information you could include in each section. The document can be completed online and saved or printed for review by the person’s treating doctor(s).

You do not need to complete every section of the document – only those that are relevant to the person’s situation.

It may be helpful to include photographs of the person, especially ones that show them with their close friends and family or engaged in their favourite activities – this gives health care providers a more complete picture of the person.

As part of the form must be completed by a doctor, and as the form refers to a number of medical terms, it is a good idea to consider completing the entire form with your treating doctor.

The Queensland health template is accessible here: https://www.qld.gov.au/__data/assets/pdf_file/0020/506018/soc-qldhealth-form-b.pdf

by Karen Dyhrberg

Advance Health Directives

Advance Health Directive

 

What is an Advance Health Directive?

An Advance Health Directive (AHD) is sometimes referred to as a ‘living will’ and is a document that includes instructions about a person’s future health care.

Anyone who is over the age of 18 years of age and is capable of understanding the nature and consequences of their health care decisions and the nature and effect of the AHD can generally make an AHD.

A direction in an AHD operates only while the person is unable to make decisions about the matter in the AHD. The direction is as effective as if the person gave the direction when decisions about the matter needed to be made and the person was able to make the decision about the matter.

Why should a person consider making an AHD?

You should consider making an AHD to avoid problems that may arise when you cannot express your wishes because you are injured or unwell.

When your family or friends are aware of your wishes and attitudes to healthcare and medical treatment, family and friends are more likely to be comfortable that they have made the right decision for you.

When should a person make an AHD?

The best time to make an AHD is before any urgent health condition arises. The benefit of planning in advance is that your family or people who will be caring for you will have the opportunity to respect your choices. You should consider making an AHD if you:

  • are about to be admitted to hospital;
  • have a medical condition that may affect your ability to make decisions; and/or
  • have a medical condition that may cause serious complications.

What does a person need to know about the legal situation in Queensland?

Capacity

Adults are presumed to be capable of making decisions for themselves. If a person understands the choices they are making the person is said to have ‘capacity’.

An AHD comes in to effect only if a person is unable to make their own decisions. This is referred to as a lack of capacity or impaired capacity. ‘Impaired capacity’ refers to a person’s inability to make a decision in an area of their life. A person may have impaired decision making capacity due to an intellectual disability, acquired brain injury, mental illness, dementia or some other cause.

Generally, someone can be regarded as having the capacity to make decisions if they are able to:

  • understand the basic medical situation;
  • understand the nature of the decision they are making, including the implications (benefits, risks, and what the medical treatment involves) and alternatives to the treatment proposed, including the implication of no decision;
  • use or weigh up the information, such as by asking questions;
  • retain the information (short-term memory); and
  • freely and voluntarily communicate a decision in some way (for example, by talking, using sign language or any other means).

If it is not clear whether a person has capacity, a doctor may conduct a number of simple tests on that person. In more complicated cases, a capacity assessment may include a psychiatric evaluation.

Consent

A doctor must not treat a patient without the person agreeing to the treatment. This is called consent. Doctors are required to respect a patient’s decisions if the patient is capable of making the decision.

For consent to be valid, a patient should be told the following:

  • their diagnosis;
  • general nature and effects of the recommended treatment;
  • risks associated with the recommended treatment;
  • alternative treatment options and risks associated with alternative options;
  • risk associated with no treatment; and
  • significant risks for the particular patient (if any).

A person should be told that they have the right to refuse the recommended treatment. Doctors must respect the person’s decision, even if the refusal of treatment or treatment the person chooses will lead to harm or the death of the person. In Queensland, the right to refuse treatment is found in the common law. The common law is law that has been developed over time from decisions made by the courts originally in England and then in Australia.

However, this is a very difficult decision-making area as the law is complex. While a person has a right to refuse treatment, Queensland law states that no-one can insist on medical treatment that their doctor thinks is not appropriate, would be of no benefit to the person, or would cause the person harm. Queensland law states that a doctor who reasonably believes that a person’s instructions in an AHD are inconsistent with good medical practice or that circumstances have changed (such as advances in medicine) will not face any liability if they fail to follow the person’s AHD.

Exception for consent – emergency and necessity

There are exceptions to the need to obtain consent in some circumstances.

In some situations a person will not be able to consent to treatment that may save their life. There are exceptions to the need for consent which are established under decisions made by the courts and Queensland laws. The two main exceptions are:

  • if the treatment is required to save a person’s life, or
  • in an emergency situation where it is impractical to obtain the person’s consent.

In these situations a doctor can treat a person without getting consent.

There are other exemptions under Queensland law, for example:

  • Mental Health Act 2016 – a person under an involuntary treatment or forensic order can be treated for their mental illness without the consent of the person.
  • Transport Operations (Road Use Management) Act 1995 – provides for a doctor or health professional to take blood and urine samples to check for alcohol and drug levels from people who have been involved in a car accident.

What if a person regains capacity?

An AHD comes into effect only when a person loses capacity.

If a person regains capacity and decides to refuse treatment, even if the decision to refuse treatment is contradictory to the person’s AHD, the later decision to refuse medical treatment overrides.

What does a person need to consider before making an AHD?

A person should think clearly about the values that are important to them and the type of medical treatment they would want if they became ill. For example, a person should consider:

  • if treatment could prolong life, what level of quality of life would be acceptable?
  • how important is it to be able to communicate with family and friends?

A person should discuss an AHD with their health providers before completing an AHD. It is important to discuss an AHD with a doctor who is familiar with a person’s medical history and opinions and can explain any medical terms. A doctor must complete Section 5 of the AHD which states a person is not suffering from any condition that could affect the person’s ability to understand the decisions made in the AHD.

A person should also seek legal advice before completing an AHD. A solicitor can explain the legal position in Queensland in relation to AHD’s and provide advice on the implications of a person’s decisions.

How does a person make an AHD?

The most common way to complete an AHD is to use the form provided by the Department of Justice and Attorney-General: https://www.qld.gov.au/law/legal-mediation-and-justice-of-the-peace/power-of-attorney-and-making-decisions-for-others/advance-health-directive

However, it does not need to be written on this form, as long as it has been signed by the person making the AHD and is signed and dated by an eligible witness.

Completing an Advance Health Directive

The following steps need to be taken:

1. Complete sections 1 to 4 of the advance health directive form. The form refers to a number of medical terms, and it is therefore a good idea to discuss these with your doctor.
2. Ask your doctor to complete section 5 of the form.
3. Complete section 6 of the form. If you have already completed an enduring power of attorney for personal/health matters, this section is where you say how your attorney(s) can be contacted if necessary.
4. Complete section 7 of the form only if you have not yet completed an Enduring Power of Attorney for personal/health matters, and wish to do so now. An attorney you appoint in this section can make health-care decisions for you if you cannot do so and your Advance Health Directive is unclear. It is not compulsory to appoint an attorney.
5. Complete section 8 of the form in the presence of a witness, who must be
    • Over the age of 21
    • A JP or solicitor
    • Not related to you
    • Not your paid carer (receiving a carer payment from Centrelink doesn’t make someone a “paid carer”)
    • Not a beneficiary of your will
    • Not have power of attorney or be related to anyone who does.
The witness must then complete section 9 of the form.
6. If you appointed an attorney in section 7 of the form, you must have that person complete section 10 of the form (accepting the appointment).
7. You should provide certified copies of the document to people who are likely to be involved if you lose the capacity to make health care decisions – including your doctor and your close family members.
8. Section 11 of the form is to be filled out each time you review the document, to confirm that you are still satisfied with its contents. It is recommended that advance health directives be reviewed every 2 years, or after any significant change in your health.

Practical considerations when making an AHD

A person who has made an AHD should tell those close to them about the AHD. After making an AHD, a person should keep the AHD in a safe place somewhere at home.

A person who has made an AHD may consider providing the following people with copies of the AHD:

  • Family member/s and/or close friend/s;
  • substitute decision maker/ attorney;
  • doctor/hospital.

An AHD is a legal document and any copies made should be certified. This means a Justice of the Peace or a lawyer has to sign each page of the AHD as a true copy.

Queensland Health has also published a useful guide and template for making an Advance Health Directive in cases involving mental health: https://www.health.qld.gov.au/__data/assets/pdf_file/0036/639864/Advance-Health-Directive-Guide-and-Form.pdf

What should an AHD include?

An AHD should include the following:

(a) what life-sustaining measures the person wishes to receive in the event they suffer a terminal, incurable or irreversible illness or condition, or are in a persistent vegetative state (if any);
(b) what life-sustaining measures the person does not wish to receive in the event they suffer a terminal, incurable or irreversible illness or condition, or are in a persistent vegetative state (if any). If the medical treatment will save a person’s life, it will most likely be a ‘life sustaining measure’. Life-sustaining measures can include treatments such as CPR, ventilation and tube feeding (which means providing someone with food through a tube, usually because they are unable to swallow).
(c) whether the person has any particular allergies or religious beliefs that will affect the life-sustaining treatment to be given;
(d) whether the person wishes to donate tissue or organs after death (and if so, which ones); and
(e) whether the person has appointed an enduring guardian or other substitute decision-maker.

A doctor cannot carry out a person’s wishes in an AHD if doing so would be in breach of the law. For example, a request for euthanasia in an AHD would not be followed because under the Queensland Criminal Code it is a criminal offence to accelerate the death of a person by performing an act or failing to perform an act. It is also an offence in Queensland to assist another person to commit suicide.

In Queensland, the Powers of Attorney Act 1998 sets out the directions and information a person may include in an AHD. Queensland law states that a person may prepare an AHD to give directions and information about health matters and special health matters for his or her future health care.

Can a person change or revoke an AHD?

A person can change or revoke an AHD while they remain mentally capable of doing so. It is a good idea to review the AHD every 2 years or if your health changes significantly.

If a person wants to make changes to an AHD, the person should destroy the current AHD and make a new AHD. If the person has given their doctor, attorney or other people a copy of their previous AHD, they should provide those people with a copy of the new AHD and ask them to destroy the previous AHD.

A person may also revoke an AHD at any time. Under Queensland law this must be done in writing, but no specific form is required and the person must arrange for a person to witness their signature. The witness does not need to be a justice of the peace, commissioner for declarations, notary public or a lawyer.

What if a person made an AHD in another state?

Queensland law recognises an AHD made in another state that complies with the requirements for the AHD in that state.

Decisions about life-sustaining measures and the legal obligations of doctors to their patients

AHD’s are legally binding documents that must be followed. A failure to comply with a lawful request in an AHD can result in both criminal and civil sanctions against a health provider.

Sometimes disputes arise when a patient’s doctors believe that treatment should not be provided to the patient, but his or her family/and or loved ones disagree and want treatment to be given. There have been cases in the courts where family members have gone to court seeking to prevent doctors from withholding or withdrawing treatment from their loved ones.

The intention of the Queensland law is to provide a person with the right to make their own decisions about medical treatment while at the same time ensuring that any decisions about refusing or withdrawing life sustaining measures is a decision in accordance with good medical practice.

Under Queensland law, a person has a right to refuse medical treatment including life-sustaining treatment only if:

  • the person has a terminal illness or condition that in incurable and the person’s doctor is of the opinion that the person might be expected to die within 1 year due to the illness or condition;
  • the person has severe and irreversible brain damage, but vital functions of the body such as heart beat and breathing continue (referred to as a ‘persistent vegetative state’);
  • the person is permanently unconscious; or
  • the person is so seriously ill or injured that the person is unlikely to recover to the extent that the person can survive without the continued use of life-sustaining measures.

by Karen Dyhrberg

Accessing your QCAT file

Accessing your QCAT file

When you make an application to the Queensland Civil and Administrative Tribunal (QCAT) you will need to lodge an application form and any supporting documents with the QCAT registry. The other party to the matter may also be required to file documents with QCAT to enable QCAT to deal with the application.

QCAT is also required to keep a register of certain details about each proceeding. It is sometimes a good idea to have a look at the record or register for your proceeding if you are not sure what stage the proceedings are at, to confirm what documents have been lodged with the court or to take copies of documents which are not in your possession.

This factsheet sets out how you can inspect the information kept by QCAT about your proceeding.

For information about the procedures that apply for access to information, see the fact sheet published by QCAT.

What is the record for a proceeding?

Under section 230 of the Queensland Civil and Administration Tribunal Act 2009 (Qld) (QCAT Act), the principal registrar must keep a record containing all documents filed in the registry for the proceeding.

Who can inspect the record for a proceeding?

A party to a proceeding may inspect the record for that proceeding, free of charge (s 230(2) QCAT Act).

A person who is not a party to a proceeding may inspect the record for a fee (s 230(3) QCAT Act).

The fees for inspection are set out in Schedule 1 to the Queensland Civil and Administration Tribunal Regulation 2009.

What is the register of proceedings?

Under section 229 of the QCAT Act, the principal registrar must keep a register of proceedings.

The register must contain the following information about each proceeding:

  • The proceeding file number;
  • The names of the parties;
  • If the proceeding is withdrawn, the date of the withdrawal;
  • If the proceedings have been transferred, or partly transferred, to another tribunal, court or other entity, then certain information about that transfer; and
  • QCAT’s final decision in the proceeding (Rule 100 QCAT Rules 2009).

Who can inspect the register of proceedings?

The register of proceedings must be available for inspection by the public at the Brisbane office of the registry during office hours on business days (s 229(2) QCAT Act).

A party to a proceeding may inspect the part of the register relating to their proceedings without charge (s 229(3) QCAT Act). Another person may inspect the register upon payment of the fee prescribed in the QCAT Rules (s 229(4), QCAT Act).

Can I take copies of the record or register?

Any person can take copies of documents from the record or part of the register upon payment of a fee (s 229(4)(b) and s 230(3)(b) QCAT Act). The fees are set out in Schedule 2 to the QCAT Regulation.

How can I stop another person from inspecting the record or register for my proceedings?

PLEASE NOTE: Non-publication orders do not apply to matters being heard under the Guardianship and Administration Act 2000 (Qld) (s 101(1)(a), Guardianship and Administration Act 2000 (Qld)). For more information about restricting the publication of information under that Act, see our factsheet GAA – Functions and powers of the Tribunal.

QCAT has the power to stop the publication of documents and information other than to certain persons. This is known as a non-publication order. A non-publication order can be made over:

  • The contents of a document or thing produced to QCAT;
  • Evidence given at QCAT; or
  • Identifying information of people who have appeared before QCAT or are affected by a proceeding (s 66(1) QCAT Act).

QCAT can only make a non-publication order if it considers it necessary:

  • To avoid interference with the proper administration of justice;
  • To avoid endangering the physical or mental health of a person;
  • To avoid offending public decency or morality;
  • To avoid publication of confidential information or information whose publication would be contrary to the public interest; or
  • For any other reason in the interests of justice (s 66(2) QCAT Act).

If a non-publication order has been made over documents or information contained in the record for a proceeding or the register of proceedings, then only people specified in the order may access that information. You can apply to QCAT for a non-publication order under s 66(3) of the QCAT Act using QCAT Form 40 – Application for miscellaneous matters.

This resource is current as of 21 February 2024

Going to QCAT factsheets

Disclaimer

The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

by Karen Dyhrberg

Alternative Dispute Resolution

Alternative Dispute Resolution

Alternative dispute resolution (ADR) is the term used to describe methods apart from a court hearing which you may use to help solve your legal problem. ADR may be used for everything from neighbour disputes regarding a fence, to divorce settlements, to multi-million dollar commercial contract disputes. In ADR, an impartial person assists those in disagreement to solve the issues between them and reach an outcome that suits them both. Although the independent person chosen by the parties directs the ADR procedure, the parties retain control over the main issues of the dispute and generally reach a mutual agreement.

ADR methods provide a flexible and often quicker and easier means of resolving new disputes early, as well as resolving lengthy disputes which have been running with no end in sight. ADR can be used at an early stage in the dispute before a lot of legal costs have been incurred and both sides have become fixed in their positions. Most importantly, with ADR, the solution is up to you – you are not asking an independent umpire, like a judge, to impose his or her decision.

When can I use ADR processes?

Courts generally expect parties to participate in some form of ADR to try to resolve their legal disputes. ADR can be used at any time in the dispute, from the early stages before it goes to court, right up until when the dispute is ready for trial.

ADR is not limited to a particular type of dispute. Examples are:

  • family and child mediation;
  • community mediation;
  • victim-offender mediation;
  • equal opportunity conciliation;
  • workers’ compensation conciliation;
  • tenancy conciliation;
  • commercial arbitration.

Depending on the circumstances, participation in ADR may be voluntary or mandatory. Parties may agree to use ADR when the dispute arises. Alternatively, a contract, code of practice or set of rules may require parties to use ADR. Many courts and tribunals require the parties to attempt to resolve their dispute in an ADR process before proceeding to trial. In Queensland, all state courts have the power and in some cases will require the parties to attend either mediation or case appraisal.

For example, in the Family Court, while there is a voluntary mediation service available, the parties can also be required to attend compulsory conferences in an attempt to resolve their differences. The Commercial and Consumer Tribunal and Retail Shop Lease Tribunal also require the parties to attend mediation, as does the Human Rights Commission. Mediation in the form of a compulsory conference is also required as part of the pre-court procedures of the Personal Injuries Proceedings Act 2002 (Qld) (section 36).

It is important that even if you are engaging in ADR, that you commence court proceedings by filing the relevant court documents within the relevant time frames. Failure to commence court proceedings within the relevant time frame may mean that you lose the right to commence legal action later on if ADR is unsuccessful. The court action can then be stayed (delayed) pending the outcome of the ADR method.

What different types of ADR processes can I use?

Which ADR process you decide to use depends on which is more likely to be successful and appropriate to your dispute. ADR service providers will usually give specific information about their processes to parties interested in using them.

Type of ADR Description of what is involved
Assisted Negotiation
  • You and your solicitor meet with the other parties and their solicitors to discuss the issues.
Mediation
  • An independent person (the mediator) helps the parties to a dispute to work out the issues and come up with a solution which everyone accepts
  • It is up to you to make an agreement and you retain control of the outcome.
  • A court or tribunal may order you to try mediation before taking the matter to trial. Mediation may also be required under the terms of a contract as a method of dispute resolution. However, in other cases, mediation is voluntary so you cannot force the other party to mediate.
  • For more information about mediation in the Supreme and District Courts see the Queensland Courts website.
Conciliation
  • Similar to mediation, an independent person (the conciliator) helps the parties to a dispute work out the issues and find a solution.
  • Usually, the conciliator is an expert on the subject of the dispute. They are more active in finding a solution and will help you and the other parties look at the strengths and weaknesses of your arguments but will not decide the issue for you.
  • You retain control of the outcome.
  • A court or tribunal may order you to try conciliation before taking the matter to trial. Conciliation may also be required under the terms of a contract as a method of dispute resolution. However, in other cases, conciliation is voluntary so you cannot force the other party to conciliate.
Case appraisal
  • An independent person (the case appraiser) assesses the merits of the case and makes a decision similar to a judgment of the court.
  • For more information about case appraisals in the Supreme and District Courts see the Queensland Courts website.
Arbitration
  • The parties to the dispute choose an independent person (the arbitrator) to act as a judge.
  • The arbitrator makes a decision which can be final and legally binding on you and the other parties.

How do I prepare for ADR?

In preparing for an ADR procedure, you should:

  • understand the process which will be followed;
  • identify what outcomes you expect;
  • prepare your opening statement which should include what you would like to discuss and what has led to the need for these issues to be addressed;
  • consider the likely reaction of the other party and ways to overcome any objections;
  • be prepared to approach the process with an open mind rather than with a list of demands.

In complex disputes, it is common for a meeting to be held before the process begins to assist all the parties prepare for the ADR procedure and to establish a timetable for the exchange of documents.

Your role at the ADR process is to state your case clearly. Listen to the other side – if your dispute goes to court, the judge might accept the other party’s version. Look for options that can benefit both parties and follow the ADR practitioner’s directions about what to do next in the process. Be willing to co-operate and be prepared to reach an agreement.

Please see LawRight’s factsheet on Mediation – a short guide for further information.

What is the effect of the outcome of ADR?

If the ADR is unsuccessful, the dispute can then go to trial at court in the usual way. The failure to reach agreement cannot be used by either party against the other during the trial. If the matter goes to trial, the successful party may be able to recover the costs of the ADR process. The matters discussed in ADR processes are normally confidential.

Generally, the outcomes of ADR processes cannot be enforced upon you. In some situations however, the outcomes of ADR processes may be enforceable. An arbitration award for example, may have the same effect as a court order. In other situations, the parties may need to take further steps before the outcome of an ADR process can be enforced. This could include certain family law matters where it may be necessary to give certain forms to a court registry for the agreement to become binding.

Do I have to pay for ADR?

Most ADR practitioners charge an hourly rate which varies depending on their experience as an ADR practitioner, their experience as a solicitor, the area of law governing the dispute and their location. Like any other service you can approach an ADR practitioner to negotiate their hourly rate or a lump sum fee. The costs of disputes that are successfully mediated through ADR are notably cheaper than those which proceed to a court hearing.

The Department of Justice and Attorney-General has Dispute Resolution Centres throughout Queensland which provide mediation services and trained mediators. Mediation services are generally provided for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3239 6007 or 1800 017 288.

Contacts for ADR service providers

ADR practitioners are generally chosen by agreement between the parties.

There is no professional society of mediators, although mediators can be accredited under the National Mediator Accreditation System. For more information, see the Attorney-General’s Department website.

The Department of Justice and Attorney-General provides mediation services for free to the public and for a fee in relation to facilitations and workplace mediations. For more information see their website or telephone (Brisbane area) 07 3738 7000 or 1800 017 288.

The Queensland Law Society have a register of approved mediators which can be searched on their website.

Additionally, the Registrar of the Supreme Court keeps a list of approved mediators and case appraisers which outlines their areas of expertise and their fees. This is provided free of charge on request to the Court registry. Parties can choose a mediator or case appraiser not on the register if they agree.

For more information about ADR in the Supreme and District Courts see the courts website.

by Karen Dyhrberg

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The information in this resource is for general information purposes only and should not be relied on as legal advice. If you need legal advice, please contact LawRight or another lawyer. LawRight can only give advice to people who are eligible for our services.

by LawRight Admin