HAZ - [2019] QCAT 322

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

HAZ [2019] QCAT 322

PARTIES:

In applications about matters concerning HAZ

APPLICATION NO/S:

GAA9767-18
GAA9130-19

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

28 August 2019

HEARING DATE:

24 June 2019

HEARD AT:

Townsville

DECISION OF:

Member Johnston

ORDERS:

The Tribunal makes the following orders:

1. PM pay the sum of $64824.67 to HAZ by way compensation for failing in her duties as Administrator within 28 days.

2. This order may be registered in an appropriate Court in the State of Queensland as a sum of money duly payable by PM to HAZ.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY- Duties of an Administrator - determination of compensation owed by an Administrator failing to act appropriately and prudently.

S35-37; 49-50 of the Guardianship and Administration Act 2001

Cowan v Scargill (1985) Ch 270; and SMD [2013]QCAT

APPEARANCES & REPRESENTATION:

SH Official Solicitor’s Office of the Public Trust Queensland

HJ Regional Manager of the Public Trust Queensland

BC service provider.

REASONS FOR DECISION
Presumption of capacity

HAZ sustained an acquired brain injury in a motor vehicle accident.
The adult’s capacity to manage his Financial Affairs has been rebutted in a number of hearings going back to 1 May 2012 and 30 April 2014.
The adult’s condition is relatively stable.
The Tribunal finds that HAZ suffered a severe head injury and this has impacted on his cognitive abilities.
The presumption that he had ability to manage his Financial Affairs is rebutted.
Background
On 1 May 2012, the Tribunal appointed PM as HAZ’s guardian for all personal matters and administrator for all financial matters. On 30 April 2014, PM’s appointment as HAZ’s guardian and administrator was continued.
A review of PM’s appointment was initiated because of concerns about PM’s handling of HAZ’s financial affairs.
On 21 June 2016, the Tribunal revoked PM’s appointment as guardian and administrator. The Tribunal appointed the Public Guardian and CD for certain personal matters and the Public Trustee of Queensland as HAZ’s administrator for all financial matters.
On 31 July 2017, the Public Trustee of Queensland as HAZ’s administrator wrote to PM requesting that she provide information regarding transactions made on HAZ’s accounts while she was his administrator. The Public Trust of Queensland report that no response was received from PM to this correspondence. The Public Trustee of Queensland sent follow-up letters to PM on 10 and 30 October 2017. The Public Trustee of Queensland report that PM did not respond to these letters.
On 2 July 2018, correspondence was sent to PM by the Official Solicitor. This correspondence provided three schedules of transactions listing transactions made on the accounts of HAZ totalling $90,709.75. PM was asked to provide an explanation in relation to each transaction listed in the schedules. The Public Trustee of Queensland state that PM did not respond to the letter dated 2 July 2018.
On 30 July 2018, the Public Trustee of Queensland filed an Application for Miscellaneous…

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: [2019] QCAT 322
Decision Date: 28 August 2019

CaseChat Overview and Summary

The case of HAZ involved a dispute between the Public Trustee of Queensland and PM, who was previously appointed as the administrator for HAZ's financial matters. The Tribunal was asked to determine whether PM was liable for compensation due to her failure to appropriately and prudently manage HAZ's financial affairs. The Tribunal had to decide whether PM was liable for compensation, and if so, the amount owed by her.

The legal issues the court had to address included whether PM was liable for compensation for her failure to appropriately and prudently manage HAZ's financial affairs, and if so, what amount of compensation was owed by PM. The court had to consider the evidence presented by the Public Trustee of Queensland, including statements raising queries in relation to expenditure of $90,709.76, and PM's response to these queries.

In its reasoning, the Tribunal found that PM had failed to provide satisfactory explanations for a number of transactions on HAZ's accounts, and that the sum of $64,824.67 represented a loss suffered by HAZ due to PM's failure to appropriately and prudently manage his financial affairs. The Tribunal concluded that PM was liable for compensation, and ordered that she pay the sum of $64,824.67 to HAZ within 28 days. The Tribunal also noted that this order may be registered in an appropriate Court in the State of Queensland as a sum of money duly payable by PM to HAZ.

Orders

Orders of the court

The Tribunal makes the following orders:

1. PM pay the sum of $64824.67 to HAZ by way compensation for failing in her duties as Administrator within 28 days.

2. This order may be registered in an appropriate Court in the State of Queensland as a sum of money duly payable by PM to HAZ.

Background

Background to the litigation

The presumption that he had ability to manage his Financial Affairs is rebutted.Background On 1 May 2012, the Tribunal appointed PM as HAZ’s guardian for all personal matters and administrator for all financial matters. On 30 April 2014, PM’s appointment as HAZ’s guardian and administrator was continued. A review of PM’s appointment was initiated because of concerns about PM’s handling of HAZ’s financial affairs. On 21 June 2016, the Tribunal revoked PM’s appointment as guardian and administrator. The Tribunal appointed the Public Guardian and CD for certain personal matters and the Public Trustee of Queensland as HAZ’s administrator for all financial matters. On 31 July 2017, the Public Trustee of Queensland as HAZ’s administrator wrote to PM requesting that she provide information regarding transactions made on HAZ’s accounts while she was his administrator. The Public Trust of Queensland report that no response was received from PM to this correspondence. The Public Trustee of Queensland sent follow-up letters to PM on 10 and 30 October 2017. The Public Trustee of Queensland report that PM did not respond to these letters. On 2 July 2018, correspondence was sent to PM by the Official Solicitor. This correspondence provided three schedules of transactions listing transactions made on the accounts of HAZ totalling $90,709.75. PM was asked to provide an explanation in relation to each transaction listed in the schedules. The Public Trustee of Queensland state that PM did not respond to the letter dated 2 July 2018. On 30 July 2018, the Public Trustee of Queensland filed an Application for Miscellaneous Matters seeking directions from the Tribunal that PM provide the Public Trustee of Queensland with information regarding the transactions on the accounts as listed in the schedules. On 6 November 2018, the Tribunal directed that:(a)PM be joined as an active party to the proceedings;(b)pursuant to section 44 of the Guardianship and Administration Act 2000, PM as HAZ’s former administrator provide answers to the matters raised in the letter dated 2 July 2018 in the schedule sent by the Official Solicitor to PM. PM’s answers were to be filed in the Registry and a copy served on the Public Trustee of Queensland by 4 PM, 7 December 2018; (c)PM fully cooperate with the Public Trustee of Queensland and do all things necessary to provide the Public Trustee with all the information and material the Public Trustee of Queensland required;(d)PM was on notice that if she did not comply with these requirements then she would be in breach of an order of the Tribunal; and(e)the Tribunal warned PM that it had power pursuant to section 97 of the Queensland Civil and Administrative Tribunal Act 2009 to compel it to attend and produce documents if she did not comply. The Tribunal also directed that a compensation matter be initiated. On 10 December 2018, the Tribunal gave PM an extension of time to comply with the order of 6 November 2018 until 4 PM, 11 February 2019 and relisted the matter for 20 March 2019.

Evidence

Evidence Before The Court

The Public Trust of Queensland submitted that on the basis of the information provided by PM, HAZ has suffered a loss of $64,824.67 representing those transactions on the accounts for which PM is not or cannot account for.The evidence The Public Trustee of Queensland put together statements raising queries in relation to expenditure of $90,709.76. The Public Trustee of Queensland put this evidence to PM on 2 July 2019 and again on 10 and 30 October 2019. PM did not respond to these letters. On 6 November 2018 the Tribunal directed PM to provide information regarding the transactions on the accounts that had been provided. When PM finally provided a response to the material provided by the Public Trustee of Queensland, the Public Trustee of Queensland formed the view that the sum of $25,885.08 be deducted from the monies said to be owing to HAZ. This left on the calculations of the Public Trustee of Queensland a balance of $64,824.67 unaccounted. The evidence of PM was that she had not kept accounts or to the extent that she had kept records that she was unable to locate those records. The evidence of the Regional Manager of the Public Trustee of Queensland was that she did not accept the notations provided by PM. Her evidence was that they were unlikely to have been incurred by the adult or that there was no evidentiary basis to accept these claims as evidence of expenditure on behalf of the adult. The Tribunal asked HJ to put her evidence and reasoning in an affidavit and ensure that this was served on PM and filed in the registry. In the affidavit of HJ the relevant paragraph is paragraph 12 which provides:(a)HAZ was involved in a single vehicle rollover motor vehicle accident in which he suffered a head injury and subsequently also suffers from depression. HAZ as a result of this motor vehicle accident has difficulties in communication and verbalising his opinions or needs. HAZ can only speak a few words with prompting;(b)PM has not provided a copy to the Public Trustee of Queensland the budget she prepared at the time she was HAZ’s administrator;(c)the charges PM credits as being made to Telstra on HAZ’s behalf are sporadic. Further PM has not shown the payments to Telstra were being paid on HAZ’s behalf pursuant to any budget. Also there is no evidence the Telstra services engaged by PM met HAZ’s communication needs;(d)PM has provided no evidence as to how HAZ made withdrawals from his bank accounts or how those withdrawals were in HAZ’s interests and all within his budget;(e)the Public Trustee is not aware that HAZ had any health insurance or in particular HCF health insurance upon the appointment of the Public Trustee and no evidence has been provided by PM that she maintained a health insurance policy for HAZ the period she was HAZ’s financial administrator;(f)PM has indicated that payments to SPER were for the payment of HAZ’s fines. SPER have indicated HAZ’s last SPER debt with them was in 2011;(g)PM has accounted for a birth certificate for HAZ. PM has not provided the birth certificate to the Public Trustee. Further costs were incurred as the Public Trustee ordered a birth certificate for HAZ;(h)PM has identified some of the transactions being for clothing and shoes for HAZ. By comparison to HAZ’s current budget for clothing and shoes, PM’s account appears excessive unless further evidence can be supplied;(i)PM identifies an ongoing payment made to Polar Industries of which she says was or air-conditioning. There is no evidence to show this was solely for HAZ’s benefit; and(j)PM provides explanations indicating transactions for chemist accounts, rent and house insurance. There is no evidence to show this was for HAZ’s sole benefit.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	HAZ [2019] QCAT 322
PARTIES:	In applications about matters concerning HAZ
APPLICATION NO/S:	GAA9767-18 GAA9130-19
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	28 August 2019
HEARING DATE:	24 June 2019
HEARD AT:	Townsville
DECISION OF:	Member Johnston
ORDERS:	The Tribunal makes the following orders: 1. PM pay the sum of $64824.67 to HAZ by way compensation for failing in her duties as Administrator within 28 days. 2. This order may be registered in an appropriate Court in the State of Queensland as a sum of money duly payable by PM to HAZ.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY- Duties of an Administrator - determination of compensation owed by an Administrator failing to act appropriately and prudently. S35-37; 49-50 of the Guardianship and Administration Act 2001 Cowan v Scargill (1985) Ch 270; and SMD [2013]QCAT
APPEARANCES & REPRESENTATION:	SH Official Solicitor’s Office of the Public Trust Queensland HJ Regional Manager of the Public Trust Queensland BC service provider.