BH
[2012] QCATA 204
•16 October 2012
| CITATION: | BH [2012] QCATA 204 |
| PARTIES: | BH |
| APPLICATION NUMBER: | APL182-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 16 October 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to appeal is dismissed. |
| CATCHWORDS: | APPEAL – APPEAL – GUARDIANSHIP – where an award compensation for personal injuries made and an administrator appointed – where the administrator was changed – where later a declaration of capacity was made for adult – where adult applied for compensation against last administrator – where QCAT’s power to make compensation orders is limited to current administrators or to administrators who were appointees at the time of an adult’s death – where the appeal is dismissed Guardianship and Administration Act 2000 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Senior Member Richard Oliver
I have had the benefit of reading Ms Gardiner’s reasons in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
BH was awarded compensation for personal injuries in 2005 by the Supreme Court of Queensland. The Court also appointed an administrator for BH. In 2006 the original appointment was changed by order of the then Guardianship and Administration Tribunal (the predecessor to this Tribunal) and The Public Trustee of Queensland was appointed as BH’s administrator. BH was declared to have capacity for financial matters on 19 September 2006 and consequent upon this declaration, The Public Trustee’s appointment was revoked.
Subsequently, an application was made to this Tribunal for an order for compensation against the former administrator, The Public Trustee of Queensland.
A decision was handed down by this Tribunal on 23 April 2012 dismissing this application for compensation on the basis that QCAT’s power under the Guardianship and Administration Act 2000 to make compensation orders in relation to administrators is limited to current administrators or to administrators who were appointees at the time of an adult’s death. The learned member determined, having examined the Guardianship and Administration Act 2000 in detail that QCAT does not have jurisdiction to hear and determine the compensation claim. This is an appeal against this decision.
Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. An issue of QCAT’s jurisdiction is such a question of law and leave is not necessary for this appeal to proceed.
The appeal specifies the following grounds for the application:
1. The decision extinguishes the legislated protective jurisdiction of the Guardianship and Administration Act 2000 and the role of the Supreme Court;
2. The decision protects the financial interests of The Public Trustee of Queensland at BH’s financial loss.
These grounds will now be addressed.
Extinguishment Legislated Protective Jurisdiction
The thrust of this ground is that the Public Trustee did not administer BH’s assets in accordance with the financial plan first presented to the Supreme Court at the initial hearing in that Court, but rather developed a further plan at the commencement of the Public Trustee’s appointment.
This submission does not address the jurisdiction of QCAT to hear the application – a threshold question, but rather goes to the duties and responsibilities of an administrator. This is an argument that the learned member might have considered if there had been a finding of jurisdiction to hear the matter in the first instance.
However, as the decision made a finding of no jurisdiction, this submission was never addressed by the learned member and is of no persuasive value to this appeal either.
To succeed in the appeal, the applicants must point to a reading of the Guardianship and Administration Act 2000 that allows this Tribunal to have the jurisdiction to hear the application. This necessarily involves a detailed examination of the sections of the Act that might support the argument – much as the learned member did when examining the Act to conclude that there is not power given to QCAT. As this ground does not address this, the appeal on this ground must fail.
Protecting the interests of the Public Trustee
Again this ground does not address the jurisdiction or power of QCAT to entertain this application. The applicants have not addressed the basic question in this ground – what reading of the Guardianship and Administration Act 2000 allows this application to be heard by QCAT – where is the power? The learned member succinctly identified this question in the reasons as:
Does the definition of administrator in Schedule 4 (or other relevant provisions of the Act) include an administrator whose appointment has been revoked?[1]
[1] Reasons paragraph 9.
Finally
This Appeal Tribunal is aware that the parties are representing themselves in this appeal and despite their grounds not addressing the issues at the heart of this appeal, has examined the reasons for the learned member’s decision that QCAT does not have jurisdiction to hear and determine the compensation claim.
This Tribunal can find no error or law in the reasons of the learned member and the applicants have not succeeded on their grounds of appeal. The application is dismissed for the reasons stated above.
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