CM

[2011] QCAT 693

CITATION: CM [2011] QCAT 693

PARTIES: CM

APPLICATION NUMBER: GAA7239-11 / GAA7240-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 21 December 2011

HEARD AT: Brisbane

DECISION OF: Pam Goodman, Member

DELIVERED ON: 21 December 2011

DELIVERED AT: Brisbane

ORDERS MADE: The Tribunal advises the Administrator that funds should not be released to CM for the purpose of engaging legal representation for CM to investigate allegations raised against The Public Trustee of Queensland or the Adult Guardian while appointed as substituted decision makers for CM.

CATCHWORDS:

ADMINISTRATION – where advice and recommendations sought by administrator for adult with impaired capacity – where allegations made that appointed decision makers had failed to discharge their duties appropriately – where Administrator was asked to release funds so legal advice could be sought as to possible legal action against appointed decision makers – where determination already made that appointed decision makers had acted appropriately

Guardianship and Administration Act 2000, s 138

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

THE APPLICATION

[1]    On 9 September 2011 the Queensland Civil and Administrative Tribunal (QCAT) received an application from The Public Trustee of Queensland seeking advice and recommendations in relation to this matter.

[2]    The Public Trustee of Queensland had been appointed as administrator for Mr CM over various periods but most recently on 18 June 2010.  That appointment remains in place.  Reasons for that decision were provided in writing by QCAT on 9 July 2010.[1]

[1]        CDM [2010] QCAT 317.

[3]    The Public Trustee of Queensland now seeks a determination from QCAT as to whether some of CM’s funds should be released in order that a solicitor might be engaged to advise CM whether he has a right of action against the Public Trustee of Queensland and / or the Adult Guardian, who was previously appointed to act as CM’s guardian. 

THE RELEVANT LAW

[4]    I have had regard to the provisions of the Queensland Civil and Administrative Tribunal Act2009 (the QCAT Act), and the Guardianship and Administration Act2000 (the GAA Act).

[5]    The GAA Act establishes a scheme whereby substituted decision makers may be appointed by this Tribunal (and previously by the Guardianship and Administration Tribunal) in circumstances set out in s 12 of that Act.  Section 12 provides that the Tribunal may appoint a guardian or an administrator if it is satisfied that:

(a)the adult has impaired capacity for the matter; and

(b)there is a need for a decision in relation to the matter or the adult is likely to do something in relation to the matter that involves, or is likely to involve, unreasonable risk to the adult’s health, welfare or property; and

(c)without an appointment—

(i)    the adult’s needs will not be adequately met; or

(ii)  the adult’s interests will not be adequately protected.

[6]    The Act allows QCAT, in particular circumstances, to appoint guardians to make personal decisions on behalf of an adult for those personal decisions in respect of which the adult’s decision making is impaired, and to appoint administrators to make financial decisions for adults for those financial matters in respect of which the adult’s decision making is impaired. 

[7]    Interfering with an adult’s right to make decisions in any area of their life is a significant matter and the Act sets out various factors which must be taken into account when considering such an appointment.  Sections 5, 6 and 7 of the Act set out an explanation of the scheme and how it operates.  The terms of the Act are easily accessed and it is unnecessary to reproduce them in full here.

[8]    Section 11 of the Act provides that persons performing a function or exercising a power under the Act must apply the general principles which are stated in schedule 1 of the Act. 

[9]    Section 15 of the Act sets out matters to be taken into account in considering whether a proposed appointee is appropriate for appointment as a substitute decision maker. 

[10]  Part 1 of chapter 4 of the Act sets out the functions and powers of guardians and administrators.  Essentially, and subject to Tribunal orders to the contrary, substitute decision makers:

§  May do anything which the adult may have done if they had capacity (see s 33);

§  Must apply the general principles (see s 34);

§  Must act as required by the terms of the Tribunal order (see s 36);

§  Must avoid conflict transactions (see s 37).

[11]  Section 35 provides that a substituted decision maker must exercise their power honestly and with reasonable diligence to protect the adult’s interests. 

[12]  Section 44 provides that a guardian or administrator has a right to all the information the adult would have been entitled to if the adult had capacity and which is necessary to make an informed exercise of the power.

[13]  Part 2 of Chapter 4 (see sections 49-55) sets out the Particular Functions and Powers of Administrators.  Once again, it is unnecessary to set out the relevant sections in full but, in summary, an administrator:

§  Must keep records;

§  Must keep property separate;

§  Has the power to invest on behalf of the adult, may make gifts and donations in certain circumstances, and may provide for an adult’s dependants. 

[14] Under s138 of the Act, once an application about a matter has been made to the tribunal, the tribunal may give advice or directions about the matter it considers appropriate, or make recommendations it considers appropriate about action an active party should take.

[15]  It is within this legislative framework that this application will be considered.

BACKGROUND

[16]  In a letter accompanying the application, the Public Trustee of Queensland provided an extensive history of this matter.  It is not necessary in this decision to record the history in detail as it is well known to the parties and to the Tribunal. 

[17]  In short, the Public Trustee of Queensland was appointed on 21 December 2000 to manage a sum of money awarded to CM following a motor vehicle accident in 1986.  After legal costs, an amount of $463,921 was received by the Public Trustee of Queensland to manage on CM’s behalf. 

[18]  In December 2002 The Public Trustee of Queensland was removed as administrator and CT and WA were appointed as administrators.  In December 2003 the Public Trustee of Queensland was reinstated as administrator on an interim basis and then pursuant to a final order on 8 April 2004.

[19]  On 8 April 2004 the Adult Guardian was appointed to made contact decisions.  On 7 February 2007 the Adult Guardian was appointed to make decisions about contact, accommodation, health care and provision of services. 

[20]  On 18 August 2009 the appointment of the Adult Guardian was revoked and TJ (CM’s step father) was appointed to make decisions about accommodation, health care, the provision of services and legal matters not relating to finances.  The Public Trustee of Queensland was appointed for all matters except Centrelink payments.  TJ was appointed to manage CM’s Centrelink payments. 

[21]  The relationship between CM’s family and the Adult Guardian and the Public Trustee of Queensland has been and remains difficult. 

[22]  On 29 January 2010 QCAT requested a socio-cultural assessment of CM be carried out to ascertain the most appropriate social / cultural arrangement to best meet his current and future needs.  A report was prepared by NM.  Following receipt of the report, Public Trustee of Queensland liaised with Professor X about this matter. 

[23]  The Public Trustee of Queensland states in its letter of 9 September 2011 “The Public Trustee’s attempts to facilitate an improved relationship with CM by implementing a culturally relevant support system involving Professor X as suggested by NM have been unsuccessful.  This is due to Professor X’s inability to assist and the conflicting communications received by TJ in that regard specifically his advice on the Public Trustee not to communicate directly with CM unless the person is aboriginal or someone who has experience working with aboriginal families and that he was not authorising anything including the contact with Professor X”.

[24]  The Public Trustee of Queensland acknowledges that TJ has made a number of complaints against his office, including complaints of mismanagement of CM’s finances and discrimination. 

[25]  At the date of the application, the Public Trust held about $11,500 in cash for CM, and a further $176,500 was invested in managed funds.  CM also owns a motor vehicle valued at around $15,000 and has some furniture and effects.

THE ISSUES CURRENTLY BEFORE THE TRIBUNAL

[26]  TJ has requested that the Public Trustee of Queensland, as administrator, provide funds to retain a lawyer to represent CM to explore whether CM has a right of action against the Public Trustee of Queensland and / or the Adult Guardian arising out of their involvement in this matter. 

[27]  TJ has raised concerns regarding the Public Trustee of Queensland’s previous reliance on a report finding that CM has an acquired brain injury, and he claims that the Public Trustee of Queensland sold CM’s property without consulting with CM or including CM in the decision making.  TJ alleges also that the Public Trustee of Queensland has acted in breach of the general principles contained in the legislation. 

QCAT ORDERS IN THIS APPLICATION

[28]  On 9 September 2011 QCAT ordered that TJ was to provide a written response to the application by 14 October 2011 and that the Public Trustee was to provide any reply by 28 October 2011.  TJ has himself provided a response, and the Tribunal also has the benefit of submissions received from H, a solicitor of Murphy Schmidt solicitors. 

THE VIEWS OF THE PARTIES

[29]  Lengthy submissions were received to assist the Tribunal in its consideration of this application.  I have summarised them below. 

THE PUBLIC TRUSTEE OF QUEENSLAND provided information and submissions as follows

§  Any reference to CM suffering an acquired brain injury has been removed from its computer;

§  Allegations of financial mismanagement were dealt with in written reasons delivered by QCAT on 9 July 2010 when QCAT found “The Tribunal can find no evidence of financial mismanagement by the Public Trustee of Queensland.”

§  QCAT’s decision of 9 July 2010 also states “TJ has obstructed expedient action by the Public Trustee of Queensland”

§  QCAT also found “The Tribunal finds TJ’s accusations against the Public Trustee of Queensland of bias, discrimination and lack of responsiveness to CM’s needs are without substance”.

§  The arguments submitted by TJ lack substance or merit, and that was confirmed by the decision of the Tribunal in July 2010.

§  CM has no capacity as has been determined by the Tribunal. 

MR TJ’S SUBMISSIONS

§  CM has capacity to instruct a solicitor to act on his behalf.  He has instructed H and has previously instructed a solicitor and barrister in the District Court;

§  QCAT should reconsider its determination that CM has impaired capacity as it is based on a misdiagnosis by Dr Y in 2007.  Other medical evidence establishes that CM has the capacity to make personal decisions and manage all but large sums of money such as his insurance payout;

§  CM has benefitted from family support over the last two years and has been assisted in the areas of literacy, verbal communication and cross cultural assistance, which are the only areas of impairment identified in all credible medical and medico-legal reports. 

§ The Public Trustee has no idea of the level and nature of CM’s capacity or impairment. The absolute extinguishment of all capacity, as assumed and asserted by the Public Trustee, contravenes the first general principle of the Guardianship and Administration Act, the presumption of capacity.

§  CM wants legal representation to pursue his rights and interests.  He has confirmed this to TJ, his tribal elders and their representative as well as his present representative H.  But the Public Trustee has not sought his will. 

§ If CM’s will and opinion is to be dismissed on the basis of allegations against his carers, he is being discriminated against in terms of section 8 of the federal Disability Discrimination Act.

§  Previous complaints about the Public Trustee were put as a compensation claim to QCAT who referred the matters to mediation.  After mediation failed, QCAT made no ruling on the claim.

§  Allegations and complaints and potential compensation claims against the Adult Guardian have not yet been put to the Tribunal.  The claim should be drawn up by a competent, qualified legal representative as it involves matters of complex law and large sums of money.

§  NM’s report, which contained confidential information, was given to Professor X outside of the scope of the Pubic Trustee’s appointment, without our permission or a QCAT order.  The Pubic Trustee also made inappropriate health and welfare referrals outside the jurisdiction of GAAT appointment. 

§  It is not appropriate that the Public Trustee incurs expenses in representing its own interests in this matter but refuses to agree to the release of funds for CM’s rights and interests to be represented. 

§  The Public Trustee is not appropriate as a substituted decision maker for CM.

§  There is insufficient evidence for the present determination of absolute lack of capacity to make personal decisions and CM should be allowed to instruct lawyers in his own right. 

§  In the alternative, if QCAT persists in finding that CM does not have capacity for all personal decisions, TJ should be reappointed as guardian for non-financial legal matters. 

§  Removing TJ and CT as substituted decision makers is in breach of s 8 of the Federal Disability Discrimination Act. 

SUBMISSIONS BY H

§  These submissions are made on behalf of CM, whom he met with for about two hours in the presence of his mother and TJ.

§  CM indicated to H that he would pursue a claim if he was entitled to, even if the cost of bringing the claim outweighed the benefit.  TJ indicated that if the advice was that it was not commercial to bring an action or it had poor prospects, he would not recommend to CM that he pursue it. 

§  He (H) is strongly conscious of the inability of most of society, in particular indigenous persons, to access justice.  Access to justice is a human rights issue. 

§  CM would be unlikely to qualify for Legal Aid funding to pursue this matter, although it is possible that a firm may take on carriage of the matter on a speculative basis if the legal advice was that he had a strong claim.

§  The opinion of the Public Trustee of Queensland as to CM’s prospects of a claim is irrelevant.  What is being sought is a release of funds to enable CM to access independent legal advice to determine if there are any prospects of success. 

§  The only consideration for the Tribunal is whether CM should be entitled to use his funds to exercise a basic human right, that is, to access justice. 

§  Independent and objective legal advice may go some ways to either justify or allay his concerns regarding the actions of the Public Trustee and the Adult Guardian, and also potentially hopefully address the conflict situation between the parties. 

§  There appears to be a strong bias against TJ who is only trying to do his best for CM.  One wonders whether the ongoing hostility is similar to that which the Tribunal considered unfavourable in the now overturned Maher decision. 

FURTHER SUBMISSIONS FROM TJ RECEIVED 20 OCTOBER 2011

§  It is not appropriate that this application is lodged by the Public Trustee’s Official Solicitor as there is an inherent conflict of interest between the Public Trustee’s representation of CM’s interest and the Official Solicitor’s representation of the Public Trustee’s interests.

§  This biased application has been considered by a single potentially biased Tribunal member that has determined the course of action to date, including orders that omit to seek the perspective of CM.

§  The Tribunal should disregard the present application by the Public Trustee’s Official Solicitor and instead seek information from Public Trustee officers with an appointment to represent CM’s interest and a working knowledge of the Public Trustee’s relationship with him. 

FURTHER SUBMISSIONS FROM THE PUBLIC TRUSTEE RECEIVED 1 NOVEMBER 2011

§  It is conceded that this application has not been discussed directly with CM.  The application was lodged by the Public Trustee after a meeting between the Public Trustee and TJ on 18 July 2011.  TJ did not object at that time to the application being lodged by the Public Trustee. 

§  The Public Trustee concedes that a request for funds to be released in order to investigate its own actions while acting as administrator raises issues of apparent or perceived conflict of interest for the Public Trustee.  The application for directions from QCAT was lodged for this reason.   

§  The Public Trustee denies that CM’s will and opinion (regarding appointment of an independent solicitor) is to be dismissed on the basis of allegations against his carers. 

§  In relation to the allegation of inappropriate referrals to outside agencies, the Public Trustee states:

§He has always acted pursuant to his obligations and authority, for example taking into account CM’s existing supportive relationships and maintaining his cultural and linguistic environment.  It is open to an administrator to engage a linguistic or cultural expert to assist in supporting CM pursuant to his right to appropriate and adequate support for decision making.

§He acted in accordance with a report for a social-cultural assessment for CM, as requested by QCAT.  Any other engagement of professionals was undertaken as a result of the report and for the sole purpose of improving the relationship between CM, his support network and the Public Trustee. 

§  Any legal fees incurred by the Public Trustee in relation to this application will not be passed on to CM.

§  The appropriateness of the Public Trustee to act as administrator was determined by QCAT on 18 June 2010.

§  TJ’s submissions raise matters beyond the current application before QCAT.

SUBMISSIONS RECEIVED FROM TJ VIA EMAIL ON 1 NOVEMBER 2011 do not advance this matter except to make clear that TJ submits that it is the fault of the Public Trustee that there has been no direct communication between CM and the Public Trustee for some 10 years. 

FINDINGS OF THE TRIBUNAL

[30]  Having considered this matter carefully, the Tribunal finds that many of the matters raised in recent communications to the Tribunal from the parties are not of direct relevance to the issues currently under consideration.

[31]  It is the role of this Tribunal to determine applications lodged.  The lodgement of this application should not be viewed as an opportunity to open a dialogue between the Tribunal and any or all of the parties.  Similarly, it is not an opportunity to revisit previous decisions or provide commentary on the actions of the various stakeholders involved in these proceedings.  Accordingly, this decision will address the application under consideration and will not extend further.

[32]  The Tribunal is untroubled that the application was lodged by the Public Trustee, or that the Official Solicitor was involved.  Those organisations do not hold any greater importance or influence at the Tribunal than other parties involved in this matter.  The acceptance by QCAT of an application from the Public Trustee or from the Official Solicitor is not material to the ultimate outcome of proceedings.  That is to say, no advantage is gained by the applicant simply because they lodged the application.  It is enough that the matters raised are now before the Tribunal and that all parties have been afforded a fair opportunity to make submissions. 

[33]  As this is neither the first application in this matter, nor the review of an appointment, the Tribunal is not required to consider the issue of CM’s capacity.  I note that in its decision of 9 July 2010 the Tribunal found that CM had impaired capacity for personal and financial matters.  That finding was based on evidence presented in writing and orally and considered during hearings on 3 December 2009, 29 January 2010 and 18 June 2010.  The finding in relation to capacity remains undisturbed by appeal or a subsequent finding of this Tribunal.  CM’s capacity to make decisions is not a matter which requires reconsideration as part of the determination of this application and I will say no more on the matter. 

[34]  The issue of the appropriateness of the Public Trustee to fulfil the role of administrator was considered by this Tribunal in its decision of 18 June 2010.  For the reasons expressed in the written reasons for decision dated 9 July 2010, The Public Trustee was found to be appropriate and was appointed.  Once again, that finding remains undisturbed and does not require reconsideration as part of the determination of this application. 

[35]  TJ raises allegations of bias on the part of the Tribunal.  It appears that H may hold similar concerns.  I note that he states “There appears to be a strong bias against TJ who is only trying to do his best for CM”.  It is unclear to me who H believes may be biased against TJ – QCAT or the Public Trustee.  I will address those issues separately.

[36]  In the absence of any evidence to the contrary, I reject any suggestion of bias on the part of the Tribunal, either as it was previously constituted or is currently constituted.  QCAT is not predisposed to favour any particular person or government organisation when making decisions or indeed when appointing substitute decision makers.  There is no evidence to establish actual or perceived bias against TJ.

[37]  In this, as in any proceeding conducted at QCAT, a decision has been made in accordance with the relevant legislative provisions and on the basis of the evidence available.

[38]  I am determining this current application.  I have had no past dealings with this matter and had no knowledge of the matter prior to being assigned to consider this application. 

[39]  Allegations of bias against the Public Trustee are discussed below. 

THE ISSUE IN THIS CASE

[40]  I must determine whether this Tribunal should direct that funds be released by the administrator so that CM may obtain legal advice regarding his prospects of success should he take action against the Public Trustee and / or the Adult Guardian.  There is no evidence of how much it might cost to obtain that advice although H has indicated that he would provide independent advice regarding a Costs Agreement if CM were to obtain such independent legal advice. 

VIEWS OF THE TRIBUNAL

[41] In considering whether an administrator should release funds for any reason (including to obtain legal advice) it is necessary to consider the role and responsibility of a substituted decision maker. Those matters are set out in the GAA Act, and have been discussed above.

[42] An administrator is only appointed (s 12 GAA Act) if without an appointment the adult’s needs will not be adequately met or his interests will not be adequately protected. It is a role of the administrator or guardian to ensure that the adult’s needs are met and to adequately protect his interests. The way in which they perform that function is as described in the GAA Act. I particularly note the requirements of s 35 that an administrator or guardian must exercise their powers honestly and with reasonable diligence to protect the adult’s interests. Substituted decision makers are bound by the general principles set out in schedule 1 of the Act.

[43]  It follows that there must be some consideration of whether a proposed course of action will meet CM’s needs or protect his interests, and the course of action should only be undertaken if it will. 

[44]  I accept H’s submissions that access to justice is a fundamental human right.  I accept that CM, who is an Aboriginal man and who has been found to have an impaired decision making capacity, falls within two groups who have sadly been subjected to discrimination in the past, and that there are parts of our modern society where such discrimination continues even today.  Those general statements do not assist the Tribunal to determine whether there exists some evidence of mistreatment of CM in this particular case such as would establish that the release of funds to obtain legal advice is necessary to protect his interests or to meet his needs. 

[45]  In this case, it is alleged that there may be some right of action available to CM regarding the actions of the Adult Guardian.  No specifics have been provided regarding what the right of action is or how the Adult Guardian has acted other than in accordance with the law.   

[46]  The Tribunal cannot be satisfied that the administrator should release funds to explore a possible legal challenge when no evidence of wrongdoing on the part of the Adult Guardian has been provided with this application.  That is even though the Tribunal accepts that the relationship between the Adult Guardian and CM’s family has been difficult.  I have no evidence before me as to the relationship between CM himself and the Adult Guardian’s office. 

[47]  There is also a possible suggested right of action against the Public Trustee of Queensland.  This seems to be on the basis of allegations that the Public Trustee has discriminated against CM, has failed to consult with him, and released confidential information to outside parties.  There seems also to be an allegation that the Public Trustee is biased against TJ, who is CM’s step father.  These are serious allegations. 

[48]  The existence of the allegations alone is insufficient to persuade me that it is appropriate that funds are spent on a lawyer investigating the claims and advising on prospects of success should a possible claim be identified.  There must be something more than an allegation or complaint.  The person seeking release of the funds must be able to point to something more substantial – some material or information which would make it reasonable to expend funds on taking legal advice.   

[49]  I have had regard to the QCAT decision in this matter dated 9 July 2010.  The decision was reached after a hearing begun on 3 December 2009, adjourned to 29 January 2010 and further adjourned to 18 June 2010.  Voluminous written material was considered by the Tribunal in reaching its decision and oral evidence was received from the parties to this application.  The Tribunal records that TJ made claims during that hearing that the Public Trustee was incompetent, that the Public Trustee had obstructed and avoided requests for resources to cater for CM’s needs, and had, effectively, mismanaged CM’s assets.  The Tribunal considered the Public Trustee’s submissions in response to those allegations and a statement detailing its management of CM’s finances while appointed as administrator for CM. 

[50]  The decision of the Tribunal records that it undertook an overview of the financial records showing CM’s income and expenditure since the Supreme Court of Queensland award in 2001, and questioned representatives of the Public Trustee of Queensland regarding the reduction in the value of CM’s assets. 

[51]  The Tribunal states in its decision of 9 July 2010 that it “Can find no evidence of financial mismanagement by the Public Trustee of Queensland”.  Further the Tribunal states that “there is no substantive evidence to support the claim that the Public Trustee of Queensland acted incompetently in managing CM’s financial affairs.

There is no evidence of financial abuse by the Public Trustee of Queensland and no essential services have been at risk by the actions of the Public Trustee of Queensland.  Indeed, the Tribunal has formed the view that the Public Trustee of Queensland has acted prudently in its dealings with CM and his family.  There is no evidence presented to the Tribunal to dispute the fact that the Pubic Trustee has not acted in CM’s best interest”.  The Tribunal found that the Public Trustee of Queensland was competent to act as CM’s administrator. 

[52]  It is relevant to note that the Tribunal found that “TJ has obstructed expedient action by the Public Trustee of Queensland”.  The Tribunal states that it is “mindful that there has been a long history of disagreement between CT and TJ and the Public Trustee of Queensland over a range of issues that have been the subject of extensive correspondence between those parties...TJ has blamed the Public Trustee of Queensland solely for CM’s circumstances.  The Tribunal finds TJ’s accusations against the Public Trustee of Queensland of bias, discrimination, and lack of responsiveness to CM’s needs are without substance.”

[53]  The Tribunal further states “After considering all the evidence, the Tribunal finds that TJ has acted in a way that places his own views, dispositions, and attitudes above the best interests of CM”.

[54]  This current application should not be used as an attempt to reopen the matters upon which the Tribunal has already reached its determination – that the Public Trustee of Queensland is more appropriate to act as CM’s administrator than TJ. 

[55]  Three members of this Tribunal considered this matter in a hearing which spanned some 6 ½ months in 2009/2010.  Allegations regarding the conduct of the Public Trustee of Queensland were considered and rejected. 

[56]  The submission now before me is that the allegations of misconduct on the part of the Public Trustee of Queensland should be considered by an independent person and that funds should be released from CM’s estate to engage a lawyer to undertake that task.  In fact, these same allegations have been considered by three independent persons constituting the Queensland Civil and Administrative Tribunal and they have been rejected.  The members were fully appraised of the allegations raised against the substituted decision makers, and the responses provided in relation to those allegations.  QCAT members are independent of the substitute decision makers and have considerable experience and expertise in this area of law. 

[57]  I am not persuaded that the release of funds to go over the same ground is necessary to meet CM’s needs or to adequately protect his interests.  I am further not satisfied that it would be in CM’s interest to expend his funds in such a way. 

[58]  I do note that an email exchange took place in November 2010, after QCAT’s decision in July 2010, and so was not considered in the July decision.  I have had regard to the emails exchanged between TJ and the office of the Public Trustee between approximately 16 November 2011 and 23 November 2011. 

[59]  The discussions via email were around the issue of drafting a budget for CM.  On 17 November 2010 TJ requests that funds be set aside for various purposes, including “for a lawyer to review CM’s interests in regard to a/ the false attribution of an ABI by the Public Trustee in 2002 and b/ The sale of CM’s home when he was homeless without consulting him or his support network about the decision”.

[60]  As part of the exchange between The Public Trustee and TJ, The Public Trustee requested that TJ keep a log book detailing his own personal use of CM’s motor vehicle, and reimburse CM for private travel undertaken by TJ.  The Public Trustee’s request for monthly accounting regarding motor vehicle use prompted this response from TJ:

TJ “It is raw brutal power alone and nothing to do with CM’s needs and interests that authorises your interventions into his life, just as similar agencies controlled the life of CM’s mother who was born on a mission and CM’s grandmother who was stolen from her family, put on a mission, made to work hard all her life and deprived for money from the aboriginal welfare fund just like you have deprived CM of his money and life opportunities in the last ten years.  Your modus operandi is itself part of the genocidal process and continues to both prevent healing and create new wounds in the Aboriginal family.”

[61]  The Trust Officer replied on 23 November 2010 stating:

Trust officer “As full financial administrator for CM the Public Trustee is legally required; under Section 49 of the Guardianship and Administration Act 2000, to keep records regarding financial transactions related to the client... we believe it reasonable for you to provide monthly reporting as to the use and reimbursement relating to the vehicle which you are benefitting from.

Your comments such as “your conditions and restrictions on his personal money are offensive and unwanted” and “your modus operandi is itself part of the genocidal process...” are too, offensive, unwanted and unfounded.  Your further comments/views relating to CM’s family and Aboriginal heritage are not issues of the Public Trustee can or wishes to comment on and once again unwarranted.  If you have issues with how the Federal government is handling the aboriginal reconciliation, then I suggest you seek a different forum to voice your views and concerns”.

[62]  This exchange was raised with QCAT as part of the application lodged by the Public Trustee.  The Public Trustee has stated that the responses of the trust officer were directed to the comments made by TJ in relation to the stolen generation and were not intended to be discriminatory however if they have been perceived to be discriminatory then the office offers an apology to CM, his family and support network and it is a source of some regret. 

[63]  TJ has advised the Tribunal that CM’s aboriginality means that people close to him (in particular his mother and grandmother) have in the past been subject to Queensland Aboriginal protection laws.  CM’s family is very sensitive to the interventions of the white state into Aboriginal life, especially having to ask a protector’s permission to travel to visit family.  CM’s grandmother had to do this and the Public Trustee’s attempts to regulate CM’s travel inflames rather than heals the intergenerational traumas that CM and his family have suffered, as such is a clear case of the Public Trustee not being sensitive to CM’s cultural needs. 

[64]  This Tribunal finds that there was no attempt by the Public Trustee to regulate CM’s travel.  There was an attempt by the administrator to ensure that it had all necessary information available to him so that he was able to meet his legislatively prescribed duties, and to ensure that CM’s interests are properly protected.

[65]  The exchange between the parties does not change the Tribunal’s view.  I am not persuaded that the release of funds to pay a lawyer to investigate TJ’s complaints is necessary to protect CM’s interests, or to meet his needs.

[66]  The Tribunal will advise the administrator that funds should not be released for the purpose of engaging legal representation for CM to investigate allegations raised against the Public Trustee of Queensland or the Adult Guardian while appointed by QCAT or GAAT to act as substituted decision makers for CM.