GHS
[2012] QCATA 199
•10 October 2012
| CITATION: | GHS [2012] QCATA 199 |
| PARTIES: | GSSS (Appellant) |
| APPLICATION NUMBER: | APL014-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 31 August 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Michelle Howard, Acting Senior Member Adrian Ashman, Member |
| DELIVERED ON: | 10 October 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for leave to appeal refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – where the Tribunal appointed the Adult Guardian as Guardian– where the Tribunal revoked the appointment of the Public Trustee of Queensland as Administrator– where the Tribunal revoked an Enduring Power of Attorney and Enduring Powers of Guardianship recognisable in Queensland Queensland Civil and Administrative Tribunal Act 2009 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | GSSS, appeared on her own behalf |
| RESPONDENT: | Margaret Martin for the Adult Guardian |
REASONS FOR DECISION
It is not uncommon for the Tribunal to consider matters in its guardianship jurisdiction that have their origin in disputes between family members. In the present case, the dispute arose between Mr GHS’s children, primarily GSSS, PYG, and CSG.
Mr GHS appointed his son, PYG, and his daughter, CSG, as his enduring attorneys in October 2006 to deal with his financial assets, property, and business interests. On the same day, he also appointed them as his enduring guardians to decide where he would live, his health care, and decide what other personal services he would receive. Both documents were executed in New South Wales where GHS lived.
Concerns over the operation of both documents were raised by daughter, GSSS, in her application to the Tribunal in 2009. Specifically, she made allegations that PYG had abused his power by transferring funds from their father’s joint account with CSG into a joint account under the father’s and PYG’s names. GSSS sought revocation of both enduring documents.
The Guardianship and Administration Tribunal heard the matter in October 2009 and appointed the Adult Guardian for decisions relating to accommodation, contact, services, health care, and whether GHS travels outside Australia. The Public Trustee was also appointed to manage GHS’s financial affairs. Both appointments were made for six months and were contrary to GSSS’s proposal that she and CSG (who still resided in Malaysia) receive Tribunal appointments. The two enduring documents were overtaken by these appointments.
The relationship between the siblings did not improve over those six months and allegations and counter-allegations were made by GSSS and PYG with the result that the Queensland Civil and Administrative Tribunal varied the guardianship order in April 2010 by removing only service provision from the Adult Guardian’s appointment and otherwise continuing the Adult Guardian’s appointment. The administration order was continued unchanged. The Adult Guardian was appointed for 2 years, and The Public Trustee of Queensland until further order of the Tribunal.
The matter came before the Tribunal once again in November 2011 following requested reviews separately by PYG and GSSS. PYG sought the revocation of the appointment of the Adult Guardian and The Public Trustee of Queensland and the reinstatement of the enduring documents in his name only.
GSSS sought sole appointment as guardian for her father. She maintained that as there were no funds held in her father’s name in Australia, hence, there was no need for an administration appointment.
The Tribunal heard the matter on 17 November 2011 and varied the appointment of the Adult Guardian, returning the provision of services element to the matters for which the Adult Guardian was appointed and making the appointment for five years. The appointment of the Public Trustee was revoked for the reason stated in GSSS’s application. The Tribunal also revoked the two enduring documents.
The bases of appeal
GSSS seeks leave to bring an appeal against that decision. As she raises questions of fact and mixed law and fact, leave is necessary before the appeal can proceed.
Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
Ms GSSS asserts that the learned members made a number of errors that warrant a grant of leave, the upholding of the appeal, and the reinstatement of the enduring documents. These errors are said to be:
a) the Power of Attorney and the Enduring Powers of Guardianship jointly appointed CSG and PYG, but no evidence was heard about CSG’s suitability to perform duties under those enduring documents and therefore it should not have been revoked;
b) it was declared during the hearing that there was no jurisdiction by the Tribunal to make any order concerning CSG as she is a foreigner residing overseas; and
c) there has been a change of circumstances for the appointment of a guardian.
Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence capable of supporting any inferences underlining it.[1]
[1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
The nature and extent of the obligation to provide full reasons varies according to the nature of the case.[2] In QCAT’s guardianship jurisdiction, giving immediate oral decisions accords with the spirit and purpose of the Queensland Civil and Administrative Tribunal Act 2009. Those decisions will not be exposed to criticism which fails to acknowledge the circumstances in which they are given, or the pressure of the caseload of the Tribunal. As Spigelman CJ remarked in Commissioner of Taxation v Baffsky (2001) 122 A Crim R 568 at 578: ‘It is not appropriate to parse and analyse judgments given on an ex tempore basis by judges of the District Court, who have a considerable caseload’.
[2]Attorney-General v Kehoe [2001] 2 Qd R 350 at 356; Tully v McIntyre [2001] 2 Qd R 338.
In determining the application for leave to appeal and appeal, we have listened to the audio recording of the hearing and the Tribunal’s reasons for decision.
CSG’s involvement as an attorney and guardian
Perusal of the evidence contained in the Tribunal’s file reveals few references to CSG. She has been invited to all of the hearings discussed earlier and has been issued with invitations to provide comment and/or feedback about the matters being considered by the Tribunal. Some questions were raised by PYG about CSG’s use of her father’s funds for her own purposes but no substantiating evidence for this allegation has been provided.
CSG has not attended any hearing and has provided no submissions whatsoever to the Tribunal for any hearing. In oral evidence to the Appeal hearing, GSSS stated that her sister had attempted to join the April 2010 hearing by telephone from Malaysia but there is no evidence to confirm this claim. For example, CSG did not contact the Tribunal at the time to report any difficulties that she might have been experiencing and no email correspondence was received expressing disappointment in her failure to contribute to the hearing.
The learned members at the November 2011 hearing heard no evidence from parties present that CSG had an interest in continuing to act as her father’s attorney and guardian. PYG indicated in his application that there was no contact with this sister due to family conflict. GSSS did not even include her sister as one of GHS’s primary contacts.
On the basis of the information available to the Tribunal at the hearing of November 2011, there was no evidence which would support a finding that CSG had any interest or intention whatsoever in continuing her involvement as an appointed decision-maker for her father. There is no evidence which supports the view that CSG was suitable to perform the duties of attorney or enduring guardian, or even that she was interested in or prepared to perform those duties.
The only available evidence would support a conclusion that she did not have an ongoing interest or involvement. The Tribunal did not make this finding in its oral reasons, focusing instead on why PYG was unsuitable to continue in the role. It is not clear that it considered the issue. However, the finding is open on the evidence. As discussed above, it is not appropriate to analyse oral reasons given in a busy guardianship list and so we do not consider the failure to articulate this finding is significant in the circumstances of the case.
In any event, if we gave leave to appeal and reheard the matter, we would make this finding. Consequently, the result would be unchanged: the enduring documents would be revoked on this additional basis. Accordingly, granting of leave would not result in the substantive relief which GSSS seeks.
Therefore, we would not give leave to appeal on the basis of this ground.
Jurisdiction to make orders about CSG
Having listened to the audio recording of the hearing and the learned members’ reasons for their decision, it is apparent that a declaration was not made about jurisdiction over CSG as contended by GSSS. The learned members made the observation during the hearing that it had no jurisdiction over what happened in Malaysia.
Therefore, there is no substance to the assertion that the learned members erred in their decision based upon a declaration that it had no power to make an order about CSG as she resides in Malaysia. In any event, they did not do so. They made an order about the enduring documents, a matter over which the Tribunal had jurisdiction.
Changed circumstances
The application for leave to appeal and appeal specifies that that there were changed circumstances that would render the learned members’ decision incorrect. It is implicit in this ground of appeal that GSSS alleges that something has changed since the hearing which may mean the arrangements put in place by the Tribunal’s orders are no longer appropriate. If this is the case, there may be a basis for the making of an application for review of the appointments ordered, but it does not suggest an error in the Tribunal’s decision at the time it was made which could successfully ground an appeal. The learned members made their decision, as they must, based upon the evidence available to them at the time.
However, at the hearing before the Appeal Tribunal, GSSS submitted in support of this stated ground of appeal that false information was provided to the Tribunal during the hearing but, when pressed to elaborate, her explanation was to the effect that she disagreed with the information.
The Tribunal was entitled to consider the evidence before it, whether or not GSSS agreed or disagreed with it, and draw its own conclusions. The submissions made do not suggest that the learned members erred.
Statutory Appointment
For completeness, we note that a further ground of appeal was raised orally at the hearing. GSSS contended that a statutory authority should only have been appointed if there was no other appropriate person.
The Guardianship and Administration Act 2000 provides that the Adult Guardian may be appointed only if there is no other appropriate person.[3]
[3] Section 14(2).
It is apparent from the Tribunal’s reasons for decision that it did not consider that either PYG or GSSS appropriate for appointment as guardian and it explained why. They were the only persons proposed as guardians. The Tribunal did not specifically make a finding that there was no other appropriate person. However, as discussed earlier, reasons given orally in a busy list should not be judged with too critical an eye. We consider that it is sufficiently clear that from the Tribunal’s reasons that it had reached this conclusion.
Therefore, we do not consider that error is demonstrated on the basis of this ground. Even if we are incorrect, and that the Tribunal’s failure to make this finding was an error, if leave to appeal was allowed, on a rehearing, we would make the finding and the decision would be unchanged.
Conclusion
Having regard to the discussion set out above, the application for leave to appeal the decision of the Tribunal made on 17 November 2011 is refused.
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