HWL v Public Trustee of Queensland

[2014] QCATA 46

CITATION: HWL & Anor v Public Trustee of Queensland & Anor [2014] QCATA 046

PARTIES:	HWL HS (Appellants)
v
Public Trustee of Queensland PLP OEL (Respondents)

APPLICATION NUMBER: APL278-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan

DELIVERED ON: 21 January 2014

DELIVERED AT: Brisbane

ORDERS MADE: The application to adduce further oral evidence at the hearing of the application to appeal or leave to appeal is refused.

CATCHWORDS:

APPEAL – where appeal on questions of law – where application to adduce further evidence – where application refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

1. HL and HS have filed an application for leave to appeal or appeal a decision of the Tribunal concerning a declaration of their father’s capacity.

2. The application consists of grounds of appeal which raise questions of law only.

3. One of the alleged errors of law is that the appellants were denied natural justice in the Tribunal not giving them the opportunity to call evidence from the adult’s solicitor a Mr Plass.

4. The appellants have made application for leave to adduce new evidence from Mr Plass and their father’s accountant Mr Trevorrow. The basis of the application is that those people prepared and witnessed some of the documents which the appellants say were executed by their father at a time that he lacked the relevant capacity.

5. As the appellants application for leave to appeal or appeal raises questions of law only the Appeal Tribunal in deciding the appeal does not have the option of rehearing the matter with additional evidence.[1] This is only available if it is deciding a question of fact or mixed law and fact.[2] Therefore the Appeal Tribunal could not hear new evidence from Mr Plass and Mr Trevorrow on the question of their father’s capacity. The more appropriate course is for the appeal on the question of law to be heard and determined. If the Appeal Tribunal finds that the appeal on this ground should be upheld then an appropriate order may be to set aside the decision of the Tribunal and refer it back to that Tribunal with the direction to hear the additional evidence.

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) s 146.

   [2]Ibid, s 147.

6. In those circumstances the application for miscellaneous matters is dismissed.