CAJ
[2015] QCAT 354
•28 August 2015
| CITATION: | CAJ [2015] QCAT 354 |
| PARTIES: | CAJ |
| APPLICATION NUMBER: | GAA5280-15 / GAA5819-15 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | 31 July 2015 |
| HEARD AT: | Southport |
| DECISION OF: | Member Joachim |
| DELIVERED ON: | 28 August 2015 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | CONFIDENTIALITY ORDER a. Paragraphs 11 to 15 and paragraphs 21 and 22 of a memorandum of advice dated 16 June 2015 to the Official Solicitor to The Public Trustee of Queensland. |
| CATCHWORDS: | GUARDIANSHIP AND ADMINISTRATION – CONFIDENTIALITY – where Public Trustee of Queensland obtains counsel’s advice on potential course of action against attorney whose power is overtaken – where Public Trustee of Queensland seeks a confidentiality order over advice – whether whole or part of advice should be subject to confidentiality order Guardianship and Administration Act 2000 (Qld), s 109, s 110, s 111 Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd [2003] EWCA Civ 901 |
APPEARANCES:
AG represented herself
Public Trustee of Queensland represented by Nash Te Au and the Acting Deputy Official Solicitor Scott Argles
REASONS FOR DECISION
CAJ is 90 years of age. He lives in a nursing home on the Gold Coast and has been there since September 2012. Prior to this he resided with his son on property at Toorbul owned by Company A in which CAJ has an interest.
Following hearings in 2014 the Tribunal appointed the Public Trustee as administrator for CAJ for all financial matters.
An enduring power of attorney which he had given to his daughter AG on 28 December 2006 was overtaken such that she could not make any financial decisions for her father. This was done because of concerns that the Tribunal had in relation to some of the actions as the attorney.
The Tribunal made directions to the Public Trustee to report to the Tribunal by 4:00pm on 20 March 2015 whether it was in the interests of CAJ to take steps to effect the transfer of 80 shares in Company A from the attorney back to CAJ. AG had obtained these 80 shares at a time when her father’s capacity was compromised.
The Public Trustee subsequently proceeded to obtain advice from counsel on this question.
Prior to receiving counsel’s advice the Public Trustee requested from the Tribunal and obtained an order that any submission filed by the Public Trustee that includes written advice by counsel in relation to the direction in the decision of 22 September 2014 is to be kept confidential and not disclosed. This order was made under s 109 and s 110 of the Guardianship and Administration Act 2000 (Qld) (‘the Act’).
Section 109 provides that:
(1)If the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person, the tribunal may, but only to the extent necessary, by order (a confidentiality order)—
(a)withhold from an active party or other person a document, or part of a document, before the tribunal; or
(b)withhold from an active party or other person other information before the tribunal.
(2)To the extent a document or part of a document contains health information for a person, or to the extent other information is health information for a person, serious harm to the person includes significant health detriment to the person.
(3)The tribunal may make a confidentiality order on its own initiative or on the application of an active party.
(4)Also, the tribunal may make a confidentiality order in relation to a document or other information on the application of the entity who prepared or provided the document or other information.
(5)A person must not contravene a confidentiality order, unless the person has a reasonable excuse.
Maximum penalty for subsection (5)—200 penalty units.
Section 110 provides that should a confidentiality order be made before a hearing of the proceedings starts it is to be vacated at the start of the hearing.
The Tribunal received an application for a review of the Public Trustee’s appointment from AG on 9 June 2015, she was seeking to be appointed as administrator in lieu of the Public Trustee.
Subsequently the Public Trustee provided a memorandum of advice from Mr Levison of counsel dated 16 June 2015. The Tribunal considered it appropriate to consider the confidentiality application from the Public Trustee at the commencement of the review of the Public Trustee’s appointment. This hearing occurred on 31 July 2015.
These reasons relate solely to the application for a confidentiality order. Oral reasons have been given for the balance of the order made on 31 July 2015.
The Public Trustee provided submissions to the Tribunal regarding the confidentiality order less than 24 hours prior to the hearing. These were not provided to AG or CAJ’s other adult child CS.
It was necessary to stand the matter down so that they had an opportunity to read those submissions, because s 111 of the Act requires that each active party and any entity that would be adversely affected by a proposed limitation order has standing to be heard in relation to the making of the order.
It is pertinent at this time to note that on 30 July 2015 the day before the hearing the Official Solicitor to the Public Trustee wrote to AG a letter of demand requiring her to retransfer the shares back to CAJ or alternatively consent to an order that the share transfer transaction be set aside.
That letter enclosed extracts from the Powers of Attorney Act 1998 (Qld) concerning the various obligations that an attorney has when acting as an attorney for a financial matter. The letter also contained parts of the advice provided by counsel.
The Public Trustee had sought an order that the entirety of counsel’s opinion be subject to a confidentiality order.
When making a confidentiality order the Tribunal must only make an order to the extent necessary. I had the advantage of having counsel’s advice.
The first nine paragraphs recounted the background and are common knowledge. Paragraph 10 outlines sections of the Powers of Attorney Act 1998. Paragraph 16 referred to the presumption of undue influence. Paragraph 17 suggested a letter be sent to AG demanding the shares. Paragraphs 18 to 20 referred to a share portfolio which counsel mistakenly believed still existed in the joint names of CAJ and AG and made various comments about this portfolio.
This portfolio no longer exists. It was liquidated, and as noted in my reasons for decision of 30 October 2014, all funds were returned to CAJ. I decided therefore that those paragraphs should not be subject to a confidentiality order.
CS made a submission indicating that there wasn’t much that was confidential any longer.
AG argued that there should not be a confidentiality order as there was a need for her to consider the advice so that there was no serious injustice to her and that she could appropriately respond to the Public Trustee’s letter.
I decided that parts of counsel’s advice should be subject to a confidentiality order. I formed the view that it was necessary to withhold part of the document before the Tribunal on the basis that I was satisfied it was necessary to avoid potential injustice to CAJ should advice in those paragraphs be made available. Legal advice provided to CAJ, when he had capacity, would be confidential unless he sought to waive the confidential nature of the advice. CAJ has impaired capacity and he cannot make the decision for himself whether to retain or waive the confidentiality of legal advice obtained on his behalf. The confidential nature of the legal advice should be retained in CAJ’s favour unless a sound basis for waiver is established. In the circumstances where the Tribunal requested a copy of the legal advice, such disclosure should not amount to a waiver of the legal professional privilege attaching to the advice.
As a result I decided to make [11] to [15] and [21] to [22] of the memorandum of advice dated 16 June 2015 to the Official Solicitor of the Public Trustee of Queensland confidential and not able to be disclosed.
I accepted the Official Solicitors submission that the advice contained some sensitive and privileged information and that disclosure of the information may prejudice CAJ’s possible claim against either or both of the children.
During the course of hearing this matter the Acting Deputy Official Solicitor to the Public Trustee made submissions that I should not make only part of the document available but the whole of the document should be kept confidential.
He referred me to a matter in the Civil Division of the England and Wales Court of Appeal before Lord Justice Thorpe and Lord Justice Waller concerning Dunlop Slazenger International Ltd v Joe Bloggs Sports Ltd.[1] The submissions he made were that in considering the matter before them the Justices examined the question of whether waiver of part of a privileged communication waives the complete information. The view taken was that a party to whom some privileged information is provided is entitled to have the full contents of what has been supplied in order to see that cherry picking is not taking place.
[1][2003] EWCA Civ 901.
The Guardianship and Administration Act 2000 at s 109 specifically allows the Tribunal to withhold all or part of a document but only to the extent necessary.
It is clear to me that the legislature decided that it was a matter for the Tribunal to consider. There is a specific intention in the Act for parts of the document to be made confidential because of the words used. In addition s 109 imposes a duty on the Tribunal to withhold a document only to the extent necessary. This, in my view negates the arguments made by the Deputy Official Solicitor in respect of the case law that he quoted.
I made orders accordingly.
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