CRG - [2024] QCAT 58 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

CRG [2024] QCAT 58

PARTIES:

In an application about matters concerning CRG

APPLICATION NO:

GAA611-16

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

25 January 2024

HEARING DATE:

12 December 2023

HEARD AT:

Brisbane

DECISION OF:

Judicial Member Rinaudo (presiding member)
Member Kanowski

ORDER:

The further application for compensation pursuant to section 59 of the Guardianship and Administration Act 2000 (Qld) is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GENERALLY – where administrator failed to consider all reasonable options and failed to consult with adult and family – whether loss caused – whether compensation payable

Guardianship and Administration Act 2000 (Qld), s 59

APPEARANCES & REPRESENTATION:

Applicant (current administrator):

Self-represented

Public Trustee:

R Treston KC and K Kluss instructed by the Official Solicitor

REASONS FOR DECISION

Introduction

This is a rehearing of an application for compensation. The application is brought on behalf of CRG by his current administrator, who is his step-father. It is brought against CRG’s former administrator, the Public Trustee. The application is under section 59 of the Guardianship and Administration Act2000 (Qld) (‘Guardianship and Administration Act’). That section said in subsection (1) (at the time the application was commenced):
A guardian or an administrator for an adult (an appointee) may be ordered by the tribunal or a court to compensate the adult … for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power.
In our decision, we have used the expression ‘the further application for compensation’ used previously by the tribunal to distinguish it from the application decided in CRG [2019] QCAT 168. The further application for compensation was heard by the tribunal in 2020 and was dismissed: CRG [2020] QCAT 153. On appeal, however, the Court of Appeal found error in the tribunal’s decision and remitted the application to QCAT for rehearing: TJ v The Public Trustee of Queensland & Anor [2023] QCA 158.
Documents provided during the rehearing on 12 December 2023, exhibits 1-3, have since been incorporated into the tribunal’s file for CRG as documents H501 to H503.
References are made in the reasons to the Guardianship and Administration Tribunal which was the predecessor to QCAT. References to H documents are to documents on the tribunal’s file for CRG (though some earlier documents were not assigned a number).

Background

We will discuss the compensation claim in more detail later. However, for present purposes, it should be noted that a central argument of the current administrator is that the Public Trustee should have kept real properties purchased by CRG’s mother and aunt in 2003 when they were administrators. Then CRG could have lived in his own home and had the advantage, as a disability support pensioner, of having its value exempted under the social security assets test.
The following background is undisputed unless otherwise indicated.
CRG was born in 1982.
On 21 December 2000,…

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 CRG

Details

AGLC: CRG [2024] QCAT 58
Case: [2024] QCAT 58
Decision Date: 25 January 2024

CaseChat Overview and Summary

The appeal in CRG v Public Trustee of Queensland concerned the administration of the property and affairs of CRG, a person with impaired capacity. The Public Trustee had made decisions to rent out CRG's unit, sell the land, and sell the unit without adequately considering all reasonable options or consulting with CRG or his family. CRG sought compensation under the Guardianship and Administration Act 2000 (Qld) for any losses caused by the Public Trustee's actions. The primary legal issues before the Court of Appeal were whether the Public Trustee had breached its duties under the Guardianship and Administration Act, and if so, whether compensation was payable to CRG.

The Court of Appeal found that the Public Trustee had failed to comply with two key provisions of the Guardianship and Administration Act. Section 35 requires an administrator to exercise a power honestly and with reasonable diligence to protect the adult’s interests. The Court held that the Public Trustee had not adequately considered all available options and their consequences for CRG, such as whether he would have his own residence and the implications for government entitlements. Additionally, the Public Trustee did not seek CRG’s views before making the decisions, contrary to general principle 7:7, which mandates recognising an adult’s right to participate in decisions affecting their life and seeking their views and wishes. The Court further noted that there was insufficient evidence of consultation with CRG’s family or support network, including CRG’s mother and aunt, who had been actively involved in other decisions regarding CRG’s property.

In conclusion, the Court of Appeal held that the Public Trustee's decisions were made without proper consideration of all available options and without adequate consultation with CRG and his family. The failure to comply with the Guardianship and Administration Act meant that the Public Trustee did not owe any compensation to CRG under section 59 of the Act. Consequently, the further application for compensation was dismissed.

ORDERS:
The further application for compensation pursuant to section 59 of the Guardianship and Administration Act 2000 (Qld) is dismissed.

Orders

Orders of the court

The further application for compensation pursuant to section 59 of the Guardianship and Administration Act 2000 (Qld) is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On appeal, the Court of Appeal concluded that in making the decisions to rent out the unit, sell the land, and sell the unit, the Public Trustee had failed to comply with two provisions of the Guardianship and Administration Act. The first was section 35 which requires an administrator to exercise a power honestly and with reasonable diligence to protect the adult’s interests. The second was general principle 7:7Maximum participation, minimal limitations and substituted judgment(1)An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.(2)Also, the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.(3)So, for example—(a) the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult’s life; and(b) to the greatest extent practicable, for exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account; and(c) a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult’s rights.(4)Also, the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult’s views and wishes.(5)However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult’s proper care and protection.(6)Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct. The Court of Appeal noted that the Public Trustee should have analysed and assessed all reasonably available options, including assessing consequences for CRG such as whether he would have his own residence and the implications for government entitlements. There was no evidence that the Public Trustee had undertaken this exercise when it made the decisions in question. Further, there was no evidence that the Public Trustee sought or even attempted to seek CRG’s views before making the decisions. The only evidence of consultation was with CRG’s father and step-mother in relation to the decision to rent out the unit. Otherwise, there was no evidence of consultation with CRG himself, or with his mother or aunt, notwithstanding that they as administrators had made the decisions to buy the unit and the bush retreat, and notwithstanding that his mother had been residing in the unit ‘providing a potential support network.’[16] Nor was there evidence of consultation with other family members, CRG’s support network, or an Aboriginal support officer.[16]TJ v The Public Trustee of Queensland & Anor [2023] QCA 158, [48].

Ratio Decidendi

Legal Principle Established

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