Crime and Misconduct Commission v Warren Flegg - [2013] QCATA 28

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
CM [2011] QCAT 693

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The Adult Guardian is no longer appointed for CM; on 18 August 2009, its appointment was revoked in favour of CM’s step-father, TJ, being appointed to make decisions for CM about accommodation, health care, the provision of services, and legal matters not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…

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.

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Details

Case: [2013] QCATA 28
Decision Date: 15 February 2013

CaseChat Overview and Summary

The Crime and Misconduct Commission sought leave to appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT), which dismissed their application for an order appointing a public guardian for Warren Flegg, an individual with a history of criminal conduct. The Commission argued that QCAT erred in its decision to dismiss the application without considering the evidence presented by the Commission, particularly in relation to the Public Trustee’s refusal to fund obtaining independent legal advice for Mr Flegg. The Commission contended that this refusal was an infringement on Mr Flegg’s legal rights and sought to appeal the dismissal of their application on the grounds of this error.

The legal issues before the court included whether the Public Trustee’s refusal to fund obtaining independent legal advice for Mr Flegg constituted an infringement on his legal rights and whether the Commission had standing to bring the appeal. The court had to determine if QCAT’s decision to dismiss the application without considering the evidence presented by the Commission constituted a sufficient ground for appeal. Additionally, the court examined whether the Commission had standing to appeal the decision, given that the primary applicant, Mr Flegg, did not seek to appeal.

The court found that QCAT did not err in dismissing the application, as there was no evidence to support the Commission’s claim that the Public Trustee’s refusal to fund obtaining independent legal advice was an infringement on Mr Flegg’s legal rights. The court held that the Commission did not have standing to bring the appeal, as the primary applicant, Mr Flegg, did not seek to appeal the decision. The court dismissed the application for leave to appeal, affirming QCAT’s decision.

Orders

Orders of the court

1. Application for leave to appeal is dismissed.

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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