BS (No 2) - [2011] QCAT 733

CITATION:

BS (No 2) [2011] QCAT 733

PARTIES:

APPLICATION NUMBER:

GAA7264-10

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

28 March 2011

HEARD AT:

Ipswich

DECISION OF:

Ron Joachim, Presiding Member
Graham Quinlivan, Member

DELIVERED ON:

6 July 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] Leave is granted to Ben Turner to withdraw his application for a compensation order.

[2] That the Public Trustee of Queensland pay BS compensation.

[3] That the applicant and respondent provide written submissions to the Tribunal by 4pm on 5 August 2011 regarding the amount of compensation to be paid with respect to the following items:

§ Lounge suite;

§ Washing machine;

§ XR 250 motor bike;

§ Chainsaw;

§ Evaporative air cooler;

§ Tool box;

§ Grinders;

§ Drills;

§ Mulcher;

§ CDs and DVDs;

§ Crockery and cutlery;

§ Kitchen tables and chairs;

§ Microwave;

§ CD stacker;

§ 3 wardrobes;

§ Dressing table;

§ Exercise bike;

§ Treadmill;

§ Sound system;

§ Coffee table;

§ Lamps.

CATCHWORDS:

Administration – compensation against the Public Trustee of Queensland as administrator – where Queensland Health employee brought application for compensation – where applicant’s employer seeks to have application withdrawn – where Tribunal accepts verbal application from adult’s brother – where Tribunal waives procedural requirements – where the Public Trustee requests adjournment to produce further oral evidence – where Tribunal decides there will be no further oral evidence and invites final written submissions – where Public Trustee claims he is denied procedural fairness – where Public Trustee has engaged solicitor to negotiate property settlement between adult and former de facto – where Tribunal concerned about lack of protection of adult’s personal property – where adult’s personal property is not subject of property settlement and goes missing – where Public Trustee warned that adult’s property at risk – where Tribunal finds Public Trustee has not acted with reasonable diligence – where Tribunal makes an order for compensation

Guardianship and Administration Act 2000, ss 59,155
Trusts Act 1973, s 22
Queensland Civil and Administrative Tribunal Act 2009, ss 28, 61

Briginshaw v Briginshaw (1938) 60 CLR 336
HLB v Trust Company Ltd [2010] QCAT 40
WCD Re [2006] QGAAT 27
WCD No 2 Re [2006] QGAAT 44

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	BL
RESPONDENT:	Ms J Waldron representing the Public Trustee of Queensland Ms P Feenley of counsel representing Mr Turner

REASONS FOR DECISION

Background

BS was born on 11 June 1965. He lives in the Ipswich area.

BS had a motor cycle accident in December 2005 and as a result has an acquired brain injury.

He first came to the attention of the former Guardianship and Administration Tribunal when the Tribunal received an application on 5 May 2006 from an Ipswich Hospital social worker. This application sought the appointment of the Public Trustee of Queensland as administrator for BS and the appointment of the Adult Guardian as guardian.

The Tribunal made orders on 17 July 2006 as requested in the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BS (No 2)

Details

AGLC: BS (No 2) [2011] QCAT 733
Case: [2011] QCAT 733
Decision Date: 6 July 2011

CaseChat Overview and Summary

In the matter of BS (No 2), the Queensland Civil and Administrative Tribunal was tasked with deciding whether the Public Trustee of Queensland should be held liable for compensation following an incident involving the loss of personal property belonging to an adult for whom the Public Trustee was acting as the administrator. The dispute arose when the Public Trustee, who had been engaged to manage the property of an adult, failed to adequately protect the adult's personal belongings, leading to their loss. The adult's employer sought to withdraw the application for compensation, but the Tribunal proceeded to consider the matter, accepting a verbal application from the adult's brother and waiving procedural requirements where necessary.

The primary legal issue before the Tribunal was whether the Public Trustee had acted with reasonable diligence and care in managing the adult's property, and if his failure to do so warranted compensation. The Tribunal had to balance the procedural fairness afforded to the Public Trustee with the necessity to protect the interests of the adult. The Tribunal also needed to determine the appropriate amount of compensation, if any, for the lost property. The Public Trustee argued that he had been denied procedural fairness and that an adjournment to produce further evidence was necessary, but the Tribunal found that the Public Trustee had not acted with the requisite diligence and had failed to adequately safeguard the adult's belongings.

The Tribunal found that the Public Trustee had not exercised reasonable care and diligence in his role as the administrator of the adult's property. The Tribunal noted that the Public Trustee had engaged in a property settlement negotiation between the adult and a former de facto partner, but the adult's personal property was not part of that settlement and subsequently went missing. Despite warnings that the adult's property was at risk, the Public Trustee did not take adequate steps to protect it. Consequently, the Tribunal concluded that the Public Trustee was liable for compensation. The Tribunal invited the parties to submit written arguments regarding the specific items of lost property and the appropriate compensation amount.

The Tribunal ordered that the Public Trustee of Queensland pay compensation to BS, with specific submissions required regarding the value of the lost items. The items listed included a lounge suite, washing machine, motor bike, chainsaw, evaporative air cooler, toolbox, grinders, drills, mulcher, CDs and DVDs, crockery and cutlery, kitchen tables and chairs, microwave, CD stacker, wardrobes, dressing table, exercise bike, treadmill, sound system, coffee table, and lamps. The Tribunal also granted leave for the applicant to withdraw his application for a compensation order.

Orders

Orders of the court

[1] Leave is granted to Ben Turner to withdraw his application for a compensation order.

[2] That the Public Trustee of Queensland pay BS compensation.

[3] That the applicant and respondent provide written submissions to the Tribunal by 4pm on 5 August 2011 regarding the amount of compensation to be paid with respect to the following items:

§ Lounge suite;

§ Washing machine;

§ XR 250 motor bike;

§ Chainsaw;

§ Evaporative air cooler;

§ Tool box;

§ Grinders;

§ Drills;

§ Mulcher;

§ CDs and DVDs;

§ Crockery and cutlery;

§ Kitchen tables and chairs;

§ Microwave;

§ CD stacker;

§ 3 wardrobes;

§ Dressing table;

§ Exercise bike;

§ Treadmill;

§ Sound system;

§ Coffee table;

§ Lamps.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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