Crime and Misconduct Commission v Warren Flegg
[2013] QCATA 28
•15 February 2013
| CITATION: | CM v The Public Trustee of Queensland [2013] QCATA 28 |
| PARTIES: | CM (Appellant) |
| v | |
| The Public Trustee of Queensland (Respondent) |
| APPLICATION NUMBER: | APL017-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Richard Oliver, Senior Member Dr Bridget Cullen, Member |
| DELIVERED ON: | 15 February 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal is dismissed. |
| CATCHWORDS: | Guardianship – where Public Trustee refused to fund obtaining independent legal advice – whether infringement on applicant’s legal rights – applicant’s standing to bring appeal. Bergmann v DAW [2010] QCA 143 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Represented by HM |
| RESPONDENT: | Represented by KA |
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
In this matter the Appeal Tribunal consisted of Dr Bridget Cullen, a QCAT Member and me. I have had the benefit of reading her reasons in draft. I agree with her reasons, and her conclusions, and the order she proposes.
Member Bridget Cullen
CM seeks funds to obtain legal advice
CM is a young Aboriginal man who wants to investigate, by way of a solicitor, concerns he has in relation to the manner in which his affairs have been handled by both the Public Trustee of Queensland and the Adult Guardian, during periods they were appointed to make decisions for him.
The Adult Guardian is no longer appointed for CM; on 18 August 2009, its appointment was revoked in favour of CM’s step-father, TJ, being appointed to make decisions for CM about accommodation, health care, the provision of services, and legal matters not relating to finances. The Public Trustee continues to be appointed for all financial matters, except for the management of CM’s Centrelink payments. TJ is appointed to manage CM’s Centrelink payments.
Engaging a solicitor for the purpose of obtaining legal advice about a prospective action naturally involves payment for legal services. However, as CM does not have control over his own funds, the matter is more complex than in circumstances where an adult with capacity elects to engage a solicitor. In CM’s circumstances, his ability to engage a solicitor requires the Public Trustee to release funds for this purpose.
Following a request for release of funds for this purpose, the Public Trustee applied to QCAT seeking advice as to whether CM’s funds should be released in order to engage a solicitor to investigate a potential cause of action against the Public Trustee and/or Adult Guardian.
Following a hearing, Member Goodman advised the Public Trustee 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 … as substituted decision makers for CM.[1]
[1] CM [2011] QCAT 693 at [66].
CM now appeals from this decision, and asks that the Appeal Tribunal direct the Public Trustee to release funds for the purpose of obtaining legal advice in relation to his concerns.
Grounds of appeal
In summary, CM asserts that the Tribunal has erred in:
i)Deciding that the release of funds to obtain legal advice requires CM to raise more than an allegation or complaint;
ii)Relying upon previous Tribunal decisions dismissing CM’s previous allegations as a basis for its decision; and
iii)Failing to give weight to CM’s human right to access legal representation, regardless of the Tribunal’s views of his prospects.
CM asserts that these are legal issues, and therefore he does not require leave to bring this appeal.
CM lacks standing to bring this appeal
The Public Trustee asserts that CM is not able to bring this appeal, as he has no standing, having been deemed at law to lack capacity. I agree with the Public Trustee on this point, and consider that an appeal is not the appropriate mechanism by which CM’s concerns should be ventilated.
The submissions of the Public Trustee on this point, and in summarising the Court of Appeal decision in Bergmann v DAW,[2] are apposite. The Public Trustee, by virtue of its appointment, has assumed all of CM’s powers, save for in relation to his Centrelink payments, and to CM’s exclusion. This includes the commencement of an appeal of this nature, and whilst I have concluded that the appeal should be struck out as CM is not competent to commence it, he raises several points that are worthy of comment.
[2] [2010] QCA 143.
CM lacks capacity to consider the merits of obtaining legal advice
As there was no Application for Review of the appointments of the Public Trustee and Guardian before the Learned Member below, it was not open to her to reconsider those appointments. As such, the Learned Member was required to accept that the Tribunal had previously determined that CM lacked capacity for financial decisions, and also lacked capacity for those personal decisions that TJ was appointed to assist him with.
“Capacity” is defined in Schedule 4 of the Guardianship and Administration Act 2000 as meaning:
capacity, for a person for a matter, means the person is capable of —
(a)understanding the nature and effect of decisions about the matter; and
(b)freely and voluntarily making decisions about the matter; and
(c) communicating the decisions in some way.
As CM does not have capacity, he cannot be said to have the ability to understand the nature and effect of decisions about “the matter”. Here, “that matter” is whether to expend funds to obtain legal advice. Another way of looking at this issue is to ask whether CM’s funds should not be spent on legal advice, and instead be preserved for some other purpose.
A person with capacity would, in the course of making a decision to engage legal representation in relation to a potential claim, conduct a cost/benefit analysis before doing so. The importance of doing so in relation to CM’s desire to engage legal representation is readily apparent. The Public Trustee is charged with the difficult task of trying to ensure that CM’s limited funds are sufficient to sustain him throughout a reasonable period of life-expectancy, taking into account future exigencies.
The Learned Member, in her decision, notes that:
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.[3]
[3] CM [2011] QCAT 693 at [48].
This strikes me as eminently sensible. Even if CM had satisfied the Public Trustee and/or the Tribunal that he had strong prospects of success, there may still be a range of circumstances where a person with capacity might decide not to pursue a matter. Litigation is inherently risky. There are numerous examples where litigants with strong prospects of success may wisely elect not to proceed, such as where an ultimate judgment may prove fruitless by virtue of the defendant’s bankruptcy.
The question as to whether the Public Trustee should release funds does not simply rely upon the merits of any prospective claim, as CM asserts in his grounds of appeal. Rather, it is a multi-faceted matter, involving a balancing exercise of weighing up CM’s desire to pursue a claim, with the difficulties that potentially expending funds fruitlessly may pose for him. It is this very task that the Public Trustee must perform for CM, given his lack of capacity to do so himself.
The Act requires that in performing this function, the Public Trustee must act honestly and with reasonable diligence to protect CM’s interests. There was no information before the Tribunal below capable of suggesting that the Public Trustee and/or Adult Guardian, have acted in any way other than with honesty and due diligence.
CM asserts that in providing the Tribunal with information that would have enabled it to assess the merits or otherwise of releasing funds to enable him to seek legal advice, he would be required to reveal communications which would otherwise be subject to legal professional privilege. Self-evidently, if there was information that CM wanted the Tribunal to consider, it should have been raised at the time of the hearing, and not raised on appeal. If CM had genuine concerns about raising privileged matter before the Tribunal, he could have made application for a confidentiality order on an ex-parte basis, and the Tribunal could have assessed the merits of same. He did not do so, and his failure to do so does not generate a viable ground of appeal.
Appropriate avenues for redress
It is apparent that CM, and/or TJ acting on his behalf, have numerous concerns about the manner in which they perceive CM has been treated. The first avenue of redress for them, or for any other disaffected client of either the Public Trustee or Adult Guardian’s office, is to seek an internal review of the decision that has led to their dissatisfaction. I do not know whether or not an internal review was requested.
Assuming that an internal review did not resolve matters, it would then be open to a disaffected party to ask the Tribunal to review the appointment. This is not the same thing as an appeal. The Tribunal may make an order removing an appointee only if the tribunal considers—
(a)the appointee is no longer competent; or
(b)another person is more appropriate for appointment.
An appointee is no longer competent if, for example—
(a) a relevant interest of the adult has not been, or is not being, adequately protected; or
(b) the appointee has neglected the appointee's duties or abused the appointee's powers, whether generally or in relation to a specific power; or
(c) the appointee is an administrator appointed for a matter involving an interest in land and the appointee fails to advise the registrar of titles of the appointment as required under section 21(1); or
(d)the appointee has otherwise contravened this Act.[4]
[4] Citation
I agree with CM, and the Learned Member below, that access to justice is a fundamental human right. The difficulty with this concept is that what constitutes justice is entirely subjective. Many of the complaints raised by CM and/or TJ in the Tribunal below relate to what might be described as a perceived disenfranchisement of Indigenous rights. These are important issues; however, the Tribunal is not able to make decisions outside of the statutory parameters that are set for it by parliament.
The Tribunal is only able to make decisions about the matters before it, in accordance with the law as enacted by the government. Often, persons appearing before the Tribunal do not appreciate that such limitations in achieving what they subjectively consider to be justice exist. This means, of course, that not everyone will view the system as affording them with justice, and may believe that they have been denied some fundamental human right.
In CM’s case, the yardstick by which the Tribunal must measure access to justice is by reference to the Guardianship and Administration Act. I have not, bearing this legislation in mind, been able to identify any reviewable error in law and must dismiss the appeal on the basis that there is neither standing to bring the Appeal, nor any reviewable error in law.
Order
1.The appeal is dismissed.