DAMA v Public Guardian - [2020] QCATA 161

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

DAMA v Public Guardian [2020] QCATA 161

PARTIES: DAMA

(applicant/appellant)

V

PUBLIC GUARDIAN
THE PUBLIC TRUSTEE OF QUEENSLAND
DA
DEA

(respondents)

APPLICATION NO:

APL098-20

ORIGINATING APPLICATION NOS:

G39509, GAA2609-19, GAA4319-19, GAA5635-19, GAA5636-19, GAA5637-19 and GAA7319-19

MATTER TYPE:

Appeals

DELIVERED ON:

2 December 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard
Member Traves

ORDERS:
1.   The application to stay the operation of orders 4 (a)-(e) dated 14 February 2020 is refused.

2.   Unless otherwise ordered, the operation of orders 4(f)-(i) in so far as they relate to the period 19 April 2016 to 30 April 2019 and order 5 dated 14 February 2020 is stayed pending the finalisation of the appeal proceeding.

3.   Unless otherwise ordered, the publication of information that may lead to the identification of an adult by the public or a section of the public is prohibited.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where stay of a decision on an interlocutory application sought pending appeal of that decision – where leave to appeal not been granted – whether an interim order in the nature of a stay should be made.

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PORPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – obligation of Tribunal to ensure it has all relevant information and material – where Tribunal ordered attorney to disclose joint accounts – where privacy of attorney and joint account holder an excuse for failing to give information or material – obligations of procedural fairness to joint account holder

Guardianship and Administration Act 2000 (Qld), s 103, s 108, s 109, s 114A, s 119, s 130

Human Rights Act 2019 (Qld), s 13, s 25

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 58, s 62, s 66, s 123(3)(a)(ii), s 145

Allen & Anor v Contrast Constructions Pty Ltd [2020] QCATA 132

Hessey-Tenny v Jones [2018] QCATA 131
Kioa v West (1985) 159 CLR 550
Leonard v Hugh Reilly Real Estate [2020] QCATA 24
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd (1989) 2 Qd R 577
Queensland Trustees Limited v Fawckner [1964] Qd R 153
Re Will of Gilbert (1946) 46 SR (NSW) 318
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152
Siminova v Department of Housing and Public Works [2018] QCA 60

REPRESENTATION:

Applicant:

DW Honchin, counsel instructed by Stevenson & McNamara Lawyers

Respondents:
Public Guardian:       No appearance.
The Public Trustee     No appearance.
of Queensland:
DEA:   Connolly Suthers solicitors.
DA:   No appearance.

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Interlocutory orders were made by a Member of the Tribunal in a guardianship proceeding requiring an attorney, DAMA, to produce specified documents pursuant to s 130 of the Guardianship…

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 DAMA v Public Guardian

Details

AGLC: Dama v Public Guardian [2020] QCATA 161
Case: [2020] QCATA 161
Decision Date: 2 December 2020

CaseChat Overview and Summary

This case involves an appeal against the decision of the Queensland Civil and Administrative Tribunal (QCAT) in guardianship proceedings. The appellant, DAMA, was appointed as the sole attorney for the adult, DA, in February 2019. The respondent, the Public Guardian, is the statutory guardian for DA. The dispute centres on orders made by QCAT on 14 February 2020, which required DAMA to produce financial documents relating to several bank accounts and provide copies to the other former attorney, DEA. The appeal was heard in the Queensland Court of Appeal, with the appeal concerning the stay of certain orders pending the outcome of the appeal itself.

The primary legal issue before the court was whether an interim order in the nature of a stay should be made in relation to certain orders made by QCAT. The court had to consider whether DAMA could be required to disclose financial information to DEA, given the privacy concerns of the joint account holders. The court also had to consider the obligations of procedural fairness and whether the orders complied with those obligations.

In allowing the appeal in part, the court held that the orders requiring disclosure of certain financial documents should be stayed pending the outcome of the appeal. The court found that the orders did not adequately consider the privacy concerns of the joint account holders and did not comply with the obligations of procedural fairness. The court emphasised the importance of ensuring that all relevant information and material is available to the tribunal in guardianship proceedings. However, the orders requiring DAMA to produce financial documents relating to accounts held solely in DA's name were not stayed, as the court found that the interests of justice did not require such a stay.

The final orders of the court were that the application to stay the operation of orders 4(a)-(e) dated 14 February 2020 is refused, while the operation of orders 4(f)-(i) in so far as they relate to the period 19 April 2016 to 30 April 2019 and order 5 dated 14 February 2020 is stayed pending the finalisation of the appeal proceeding. The court also prohibited the publication of information that may lead to the identification of an adult by the public or a section of the public.

Orders

Orders of the court

1. The application to stay the operation of orders 4 (a)-(e) dated 14 February 2020 is refused.

2. Unless otherwise ordered, the operation of orders 4(f)-(i) in so far as they relate to the period 19 April 2016 to 30 April 2019 and order 5 dated 14 February 2020 is stayed pending the finalisation of the appeal proceeding.

3. Unless otherwise ordered, the publication of information that may lead to the identification of an adult by the public or a section of the public is prohibited.

Background

Background to the litigation

For the reasons set out below, the stay application is allowed in part.Background The guardianship proceeding has a complicated history, the details of which do not need to be fully recounted here.[2] Suffice it to say that there were several enduring powers of attorney (EPAs) executed by the adult, DA, between 2016 and 2019. The earlier documents appointed DAMA and DEA jointly and severally as attorneys for all personal and financial matters. In February 2019, DA revoked the appointment of DEA as an attorney and appointed DAMA as sole attorney. From about 2018 onwards, the relationship between DAMA and DEA deteriorated and subsequently broke down as both lost trust in the other.[2]Re DA [2020] QCAT 456. The applications before the Tribunal in the guardianship proceeding include several applications for appointment of a guardian and administrator made by DAMA and DEA, and applications about the EPAs. The guardianship proceedings were part‑heard on various dates including 20 June 2019; 13-14 February 2020; and 25‑26 June 2020. Various miscellaneous applications have also been determined during that period. On 20 June 2019, the Tribunal made orders inter alia for notices to produce to issue to relevant financial institutions. It appears from the file that the notices to produce did not issue. On 14 February 2020, orders were made vacating the orders of 20 June 2019 for the notices to issue. The orders which are the subject of this appeal were made in their place effectively requiring DAMA to produce the same documents, and also to give a copy of some of them to DEA. On 26 June 2020, the Tribunal made orders to the effect that any purported EPAs were overtaken to the extent of the orders made. DAMA was appointed as guardian for DA for one year for health care and the provision of services. In respect of financial matters, an interim order was made appointing the Public Trustee of Queensland for 3 months. Since then, a further similar interim order has been made. The proceeding (as far as it relates to the applications for the appointment of an administrator) is yet to be finally determined. If the appeal succeeds it appears that the evidence has closed with final submissions to be made before it is finally decided. If the appeal fails, it is anticipated that DAMA will be further cross-examined in respect of the documents once produced, before final submissions and a final decision are made. We note here that, between the making of the orders on 20 June 2019 and those of 14 February 2020, DAMA filed a considerable volume of documents, including some of those that are required to be produced by the orders dated 14 February 2020. The relevant orders appealed dated 14 February 2020 are to the following effect:4. Pursuant to section 130 of the Guardianship and Administration Act 2000 (Qld) [DAMA] will produce to the Tribunal an unredacted copy of all statements relating to the financial transactions relevant to the following accounts for the period of 19 April 2016 to 20 June 2019:(a)The National Australia Bank Account, BSB [redacted], Account Number [redacted] held in the joint names of [DAMA] and [ALM];(b)The National Australia Bank Platinum Visa Account, BSB [redacted], Account Number [redacted] held in the joint names of [DAMA] and [ALM];(c)The Suncorp Bank Everyday Options Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];(d)The Suncorp Bank Clear Options Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];(e)The Citibank Platinum Visa Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];(f)The Commonwealth Bank of Australia Passport Account, BSB [redacted], Account Number [redacted] held in the name of [DA];(g)The Suncorp Bank Passport Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM];(h)The Suncorp Bank Passport Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM]; and(i)The Suncorp Bank Term Deposit Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM], by:5:00pm on 1 May 2020.5. Pursuant to section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) [DAMA] will provide to [DEA] an unredacted copy of the bank statements produced to the Tribunal in accordance with to Orders 4(f), 4(g), 4(h) and 4(i), by:5:00pm on 1 May 2020.

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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