JMS v Adult Guardian
[2013] QCATA 135
•30 April 2013
| CITATION: | JMS v Adult Guardian & Anor [2013] QCATA 135 |
| PARTIES: | JMS (Applicant/appellant) |
| v | |
| MAJ Adult Guardian (Respondents) |
| APPLICATION NUMBER: | APL402-11 / APL037-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Leslie Clarkson, Member |
| DELIVERED ON: | 30 April 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Leave to appeal refused. |
| CATCHWORDS: | APPEAL – GUARDIANSHIP – whether error of law occurred – whether Tribunal failed to take material consideration into account on issue of capacity – whether there was a need for guardian – whether Tribunal failed to consider another appropriate person available for appointment – whether appointees incompetent Guardianship and Administration Act 2000 (Qld), s 12, s 14(2), s 15, Schedule 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 Adult Guardian v Hunt [2003] QSC 297, cited |
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.
REASONS FOR DECISION
RR (‘the adult’) is an 88 year old widow who resides in an aged care facility in Brisbane
In 2011 the Nurse Unit Manager at the Noosa Hospital made applications to the Tribunal seeking the appointment of the Adult Guardian and The Public Trustee of Queensland as the adult’s guardian and administrator respectively.
At that time, the adult and her spouse, JR, were inpatients at the Noosa Hospital, and applications were also made for similar appointments in relation to JR.
Applications were also made by their daughter, JMS, seeking her appointment as guardian and the Public Trustee as administrator.
In the result, by orders made on 29 September 2011 (‘the first decision’) the Tribunal appointed the Adult Guardian for decisions about the personal matters of health care, accommodation, and the provision of services. MAJ (a daughter of the adult and her spouse) was appointed as administrator for all financial matters for the adult and her spouse.
JMS (‘the applicant’) sought leave to appeal and is appealing the first decision in relation to the guardianship appointments for her parents.
In the interim, TS, a granddaughter, brought applications for a review of the guardianship and administration appointments, and sought the appointments of the applicant as guardian and the Public Trustee as administrator. The appeal process was placed on hold, pending the outcome of those applications.
Prior to the hearing of the review applications, JR passed away, and the appeals are now referable to the adult only.
The review application was heard on 23 November 2012, and by orders made on that day (‘the second decision’) the Tribunal continued the appointments of the guardian and administrator, with the Adult Guardian’s powers broadened to include decisions about with whom the adult has contact and/or visits.
The applicant also sought leave to appeal and is appealing the second decision. In both appeals the applicant has sought to rely on questions of mixed law and fact and under s 142(3) of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) she requires leave of the Tribunal to proceed with her appeals.
By order made on 4 February 2013 the Tribunal consolidated the applications for leave to appeal or appeal in relation to the first decision and the second decision.
The first decision – the applicant’s grounds
Ground (a): The Tribunal Member made findings against the evidence and was wrong.
This ground apparently has its genesis in statements made by the Member about the practices and procedures of the Office of the Adult Guardian, including statements that the Adult Guardian would work with family members in deciding the future needs of the adult.
The applicant claims that there was no evidence before the Tribunal about the practices and procedures of the Adult Guardian. In fact, the applicant claims that the Adult Guardian does not return phone calls, or correspond in a timely manner, and does not work with family members in reaching decisions.
The Member’s statements in this respect were unexceptionable and, it is to be observed, generally in line with the duties of any guardian appointed by the Tribunal. A guardian, for example, is bound to comply with the general principles outlined in Schedule 1 of the Guardianship and Administration Act 2000 (‘the Act’), one of which refers to the importance of maintaining an adult’s existing supportive relationships.[1] Another is to take into account an adult’s previous actions to work out what an adult’s views and wishes would be.[2]
[1] General principle 8.
[2] General principle 7.
Both principles require all appointees to consult and liaise where possible with an adult’s existing support network.
Complaints that an appointee has not performed to the level of Tribunal expectations or has otherwise not taken appropriate matters into account in his or her decision-making role are not properly matters to be considered in this appeal, but are more appropriately issues which ought to be ventilated at a hearing for the review of an appointment.
The applicant’s appeal on this ground must fail.
Ground (b):The Member applied the wrong principle in applying a test that the safety of the adult was paramount, and the Member failed to take into account the applicant’s evidence as to the suitability of her residence and her ability to properly care for the adult.
The applicant claims the Member should have applied a test of what is in the best interests of the adult.
The Member’s statements about safety appear to have been made in the context of findings about the adult’s lack of insight into her care needs, and submissions to the effect that the adult wished to reside with the applicant and that the former understood the “nature of a dangerous environment”.[3] Whether one applies a principle of “safety” or “best interests”, General principle 7(5) requires a decision-maker, including the Tribunal, to exercise powers in a way consistent with an adult’s proper care and support.
[3] Transcript of Proceedings, 44.
In any event, this ground appears to be concerned essentially with the Adult Guardian’s accommodation decision not to place the adult with the applicant. As explained by the Member,[4] the decision about where the adult was to reside was not a matter for the Tribunal at this hearing.
[4] Ibid 30.
The applicant’s appeal on this ground must fail.
Ground (c):The member ought not to have appointed the Adult Guardian in circumstances where a family member was ready and willing to act.
The Member noted the Adult Guardian is an appointee of last resort.[5] More specifically, s 14(2) of the Act provides for such appointment only if there is no other appropriate person available for appointment for the matter.
[5] Ibid 87.
While the applicant was available to act as guardian, the Member found that she was not a person appropriate for appointment. This finding was based on the history of conflict between the applicant and other family members, and the likely impact on appropriate decision-making for the adult should the applicant be appointed. It is a finding which was reasonably open to the Member on the material and evidence before her, and the applicant has not shown that it involved an error.
The applicant’s appeal on this ground must fail.
Ground (d):The Member failed to take into account the wishes of the adult, which was to reside with the applicant, and not in a hospital or nursing home.
Again, the adult’s preference about her accommodation was not at this hearing a matter for decision by the Tribunal. The critical issues for the Tribunal included whether a guardian should be appointed for the adult, and if so, who that should be.
This ground is properly an issue to be raised on review when discussing the competence or appropriateness of the current decision-maker, and is not in this case a relevant ground of appeal.
The applicant’s appeal on this ground must fail.
The second decision – the applicant’s grounds[6]
Ground (a): The finding of the Tribunal that the adult did not have capacity was against the evidence and wrong. The Tribunal erred in preferring to rely on earlier reports rather than a more recent report.
[6] The grounds are not numbered in accordance with the Grounds of Appeal, Annexure A.
The Tribunal’s conclusions relied on reports from various health professionals, and oral evidence. They are briefly outlined.
ACAT assessment, 25 August 2011, refers to a diagnosis of dementia in Alzheimer’s disease. The assessment refers to certain difficulties exhibited by the adult, including short term memory problems – always; and regular long term memory problems, wandering, and disorientation as to time, place, and other people.
A medical report of 7 September 2011 from Dr David Henshaw, general physician, refers to a diagnosis of Alzheimer’s disease with the adult experiencing a gradual decrease in cognition over a period of years, evidenced by a history of diminishing results on MMSE scores. Dr Henshaw’s summary is that the adult cannot understand and make decisions about health care and lifestyle matters, or complex decisions about financial matters.
Another report dated 27 September 2011, by Dr Emily Ahern, consultant physician and geriatrician, referred to a diagnosis of moderately severe Alzheimer’s dementia and significant ongoing health issues with complex care needs. Dr Ahern opined that the adult is unable to make a competent decision about where she should live as she cannot appreciate she has any health care concerns. Further, the adult would be vulnerable to influence in relation to lifestyle/accommodation decisions and to financial abuse as she is unable to manage her finances.
An ACAT assessment of February 2012 refers to the adult’s need for assistance with all activities of daily living, her exhibiting regular short term memory and long term memory problems, confusion, and at risk behaviour.
A resident care summary, 28 September 2012, identifies a range of problems to be addressed in the adult’s care plan. They included communication deficits (poor short term memory, impaired cognition, and reduced ability to communicate), inability to manage medications and to understand her own limitations, and episodes of confusion.
Oral evidence at the hearing from two clinical staff members of the facility where the adult resided indicated that her cognition had not changed in recent times. She still exhibits memory deficits, disorientation as to place, and confusion.
The only contrary evidence was from Dr Richard Heath, general practitioner, who provided a letter dated 20 November 2012 in which he opined that the adult had intellectual capacity. However, for reasons set out at length in the Tribunal’s decision, it was found that Dr Heath’s assessment process was flawed. Further, at paragraph [32], it found that Dr Heath placed significant weight on the adult’s ability to express a choice about her place of residence, without addressing the critical question about whether the adult had insight into her care needs, and thus had the ability to appreciate the consequences of a decision about her accommodation.
It was plainly open to the Tribunal, on the weight of this medical evidence, to hold that the opinion of Dr Heath (based on perceived defects in his assessment methodology) did not outweigh the bulk of medical evidence made up of the consistent opinions of other health professionals over a period from 2011 up to the date of the hearing.
It is not established that the finding was against the evidence and wrong, and the appeal on this ground must fail.
Ground (b):ACAT assessments are irrelevant and should be discounted as they are used only for determining care needs, not capacity.
It is correct that ACAT assessments are not primarily tools for determining the capacity of an adult. However, s 28(c) of the QCAT Act empowers the Tribunal to inform itself in any way it considers appropriate.
The statements of assessors about the problems an adult may be exhibiting are of assistance to the Tribunal in its deliberations. The notations about problems an adult might be exhibiting, such as confusion, are helpful and productive as collateral material which may serve to substantiate other evidence on relevant issues. While it may ultimately be a question of the weight which ought to be given to such an assessment, the submission that it is irrelevant and should not be admitted is unfounded.
The applicant’s appeal on this ground must fail.
Ground (c):The report of Dr Henshaw should be discounted because his observations are dated and the report relies heavily on the result of a MMSE score. A MMSE result is not referred to in the definition of capacity in Schedule 4 of the Act.
Dr Henshaw’s observations are confirmed by the more recent ACAT comments and assessments, as well as the oral evidence of the clinical staff members given at the time of the hearing.
It is acknowledged that the MMSE is primarily used as a screening tool for cognitive impairment, including dementia. It is not suggested that it is a comprehensive tool which ought to form the sole basis for an opinion about capacity. However, similarly to ACAT assessments, the results including the answers to various questions may serve as collateral information and so assist the Tribunal in arriving at a conclusion.
The report of Dr Henshaw refers in passing to MMSE scores, but also provides other detailed descriptors indicative of cognitive impairment. There is no evidence to suggest that his opinion relies heavily, if at all, on the MMSE results.
The applicant’s appeal on this ground must fail.
Ground (d):The report of Dr Ahern also refers to MMSE scores, and her report does not include reference to the context of the examination: with the adult being in unfamiliar surroundings and under the influence of medication.
Dr Ahern’s report is comprehensive. It refers to MMSE scores but, again, there are other detailed descriptors to which Dr Ahern refers. There is no evidence to suggest that Dr Ahern has relied, exclusively or inappropriately, on the MMSE results in providing her opinion.
Dr Ahern’s report does not refer to the context of her examination as relevant to her findings. There is no evidence to suggest it was relevant. Like Dr Henshaw, Dr Ahern lists the adult’s medications and states that none of them are likely to have any significant effect on her mental state. (This ground reflects Counsel’s submissions at the hearing that at the time of the earlier reports, the adult was heavily sedated. However, there is simply no evidence to substantiate this assertion.)
The applicant’s appeal on this ground must fail.
Ground (e):The resident care summary is irrelevant to an assessment of capacity.
For reasons similar to those relating to the admission of ACAT assessments and MMSE tests, it is open to the Tribunal to consider such documents, with consideration to the weight, if any, which ought to be given to them. Nothing in the Tribunal’s decision suggests that inappropriate or excessive weight was given to the summary.
The applicant’s appeal on this ground must fail.
Ground (f): The Tribunal discounted the oral evidence of Dr Heath on the basis of the way he administered an MMSE.
The Tribunal’s reasons record Dr Heath’s acknowledgment that the MMSE score was not accurate, and that he wished to withdraw the result from his letter. As our discussion of the next ground shows, however, that even was not determinative in the Tribunal’s decision not to prefer Dr Heath’s opinion.
The applicant’s appeal on this ground must fail.
Ground (g): The Tribunal found Dr Heath’s assessment process was flawed in that it did not provide an objective basis for the assessment of the adult’s cognitive functioning. The definition of capacity is not based on an objective test, rather a subjective assessment.
Contrary to the applicant’s unfounded assertions that Drs Henshaw and Ahern relied heavily on MMSE scores, a reasonable interpretation of Dr Heath’s letter of 20 November 2012 is that he relied solely on the MMSE result. He refers to the score and therefore certifies as to the adult’s capacity.
The Tribunal’s concern with Dr Heath’s assessment is noted in detail at paragraphs [31] and [32] of its reasons for decision. In essence, the Tribunal appeared to be concerned with the fact that the objective basis for his opinion is not stated. In other words, as opposed to the detailed descriptors used by Drs Henshaw and Ahern, Dr Heath gives no detail of the reasons why he arrived at his conclusion – other than to refer to an admittedly flawed MMSE test and the fact that the adult was able to articulate a view about her choice of residence.
It is unsurprising that an opinion given in isolation about an adult’s capacity without stating the grounds on which it is based is likely to be of little assistance to the Tribunal. That is because, as is the case here, the lack of detail does not allow the Tribunal to make its own assessment about the veracity or otherwise of Dr Heath’s opinion.
The applicant’s appeal on this ground must fail.
Ground (h): The Tribunal preferred to rely on evidence provided more than 12 months earlier, rather than the more recent evidence of Dr Heath.
This issue has already been canvassed, and for reasons already given, the applicant’s appeal on this ground must fail. In particular, the evidence supported the conclusion that the opinions expressed in the two specialists’ reports had been borne out by subsequent observations. Again, that is unsurprising: the problems which beset the adult are not known to improve with time.
Ground (i):The Tribunal failed to allow the adult to give evidence at the hearing, and failed to have regard to the adult’s statement that she wished to stay with the applicant.
There is no evidence to suggest that the adult did not receive notice of the hearing. Nor is there any evidence to suggest that the adult expressed a desire to attend the hearing.
The audio recording of the hearing indicates that early in the hearing, Counsel for the applicant requested the Tribunal to attend on the adult in a non-threatening environment, in order to discuss relevant issues with her.
The Tribunal’s suggestion for a teleconference was discounted on the basis of the adult’s hearing impairment. There was also a comment by Counsel that his instructions were that the adult’s physical attendance by being driven to the hearing would not be beneficial to her. The Director of Care in oral evidence indicated that Dr Heath considered the adult was capable of attending the hearing and giving evidence.
However, the issue of the adult’s attendance, or the Tribunal’s attendance on her, was not agitated further.
In any event, it is not a question of the Tribunal failing to allow the adult to give evidence. It is more to the point that the adult apparently did not attend, or express any desire to attend, and did not agitate for assistance to do so.
In matters such as this, the Tribunal rarely compels an adult to attend a hearing. The reason is, again, unsurprising and unexceptionable: a concern not to cause distress or upset to persons who, on the medical evidence already before the Tribunal, are suffering from some level of dementia involving confusion
Further, without evidence that the adult wishes to participate in a hearing, it is not appropriate for Tribunal members to visit the adult’s place of residence and, in effect, coerce attendance. Such a scenario is unlikely to conform to the non-threatening environment which Counsel sought to describe.
In these circumstances – including, in particular, the medical evidence available to it – the Tribunal’s reluctance to (in effect) compel attendance or visit it upon the adult cannot fairly be criticised.
The second element of this ground involves a submission that the Tribunal failed to have regard to the adult’s letter expressing her preferred accommodation arrangements.
The Tribunal has previously advised the parties that its function in this hearing is not to make decisions for an adult, but rather to appoint a decision-maker who is empowered to do so. In this case, that is a matter for the appointed guardian to consider in the exercise of its powers.
The applicant’s appeal on these grounds must fail.
Ground (j): The Tribunal’s finding of risk to the adult as a result of conflict between family members was wrong. The evidence indicated there were only two instances of conflict since the adult’s admission to the nursing facility, and neither occurred in the presence of the adult. Thus the provisions of s 12(1) have not been met in relation to the appointment of a guardian for contact matters.
The audio recording indicates that this assertion is simply not true. The applicant’s own evidence described an altercation with her sister in the presence of the adult which occurred on the day the adult was advised of the passing of her spouse.
The evidence of the applicant’s sister was that, after an altercation and after the applicant left her mother’s room, the adult was left sobbing.
The evidence of the parties about the informal visiting arrangements of family members indicates it was unsatisfactory, and unlikely to be conducive to the adult’s general wellbeing. For example, there were recitals of family members entering the adult’s room when another member was visiting, with resulting rude or aggressive behaviour. Other avoidance techniques were described, none of which would guarantee that disturbances would not occur.
On the evidence it was open to the Tribunal to find that, in accordance with s 12(1) of the Act, there was a need for a decision to be made about contact matters, and that without an appointment it was likely the adult’s needs would not be adequately met or her interests would not be adequately protected. Indeed, it is difficult to imagine how the Tribunal could have reached any conclusion other than to appoint a formal decision-maker to put contact or visiting arrangements in place.
The applicant’s appeal on this ground must fail.
Ground (k): The Tribunal’s acceptance of the evidence of the applicant’s sisters that, in the event of the applicant’s appointment as her mother’s guardian, they would be unable to maintain contact with her, was against the weight of evidence and wrong.
The applicant’s sisters, MAJ and BR outlined their concerns in this regard. They indicated their concern and discomfort about the prospect of visiting their mother at the applicant’s premises. The applicant stated that her sisters were free to visit their mother at her residence at a time when service providers were present. This would allow the applicant to leave the premises, or at least that part of the premises where the adult resides.
The applicant’s evidence at the hearing was to the effect that the service providers are not anticipated to be in attendance on a full time basis (there was a suggestion of around 15 hours each week), and the opportunity for the applicant’s sisters to visit would likely be limited by those hours. This arrangement does not appear to allow the applicant’s sisters to visit their mother in private or in the absence of others.
Given the entrenched and bitter conflict which, the evidence clearly established, exists between the adult’s children it was not unreasonable for the Tribunal to be concerned that these matters might prohibit beneficial contact between the adult and family members, or militate against rational and fair arrangements for that.
The Tribunal’s findings properly recognised these factors, and were not against the weight of evidence and the applicant’s appeal on this ground must also fail.
Ground (l): The Tribunal’s finding that the applicant would not be able to effectively consult with her sisters, or be receptive to their opinions, was against the weight of evidence and wrong.
The evidence showed that the relevant parties do not speak to each other, and the applicant’s options for communication included Australia Post mail. Suggested solutions gave no comfort that intra-family communication about the adult’s care and needs, and family contact, could be appropriately resolved to the adult’s benefit: it was canvassed, for example, that such correspondence could be directed through the applicant’s solicitor.
The applicant’s sisters assert that, in those circumstances, they will not have the opportunity of effective consultation. The applicant asserts with equal vigour that this will occur.
Whatever the cause of this conflict and the serious breakdown in intra-family relations the Tribunal’s finding that the applicant would not, in the circumstances, be able to have due regard to her mother’s existing supportive relationships and so discharge her duties in accordance with the legislative requirements was not against the weight of evidence, and the applicant’s appeal on this ground must also fail.
Ground (m): The Tribunal did not follow the review process and should have found that it was not satisfied it would make an appointment, and so revoked the appointments.
The provisions of s 31(2) of the Act require the Tribunal, at the end of the review, to revoke its orders unless it is satisfied it would make an appointment if a new application were to be made.
That provision refers the Tribunal to s 12(1) of the Act, which outlines the matters about which the Tribunal ought to be satisfied before it may appoint a guardian or administrator for an adult.
The Tribunal’s reasons indicate it canvassed the matters outlined therein. Specifically, it made findings in relation to the adult’s capacity, and canvassed the need for decisions to be made for the adult and the extent to which an appointment is necessary to meet the adult’s needs or protect her interests. It has also considered the appropriateness of proposed appointees, bearing in mind the provisions of s 31(4) which empowers the Tribunal to remove an appointee only if it is satisfied the appointee is no longer competent or that another person is more appropriate for appointment.
This ground does not specify the bases on which the Tribunal should have revoked the appointments. In any event, there is nothing in the Tribunal’s reasons which indicate that its relevant findings are against the weight of evidence or otherwise wrong in law.
The applicant’s appeal on this ground must fail.
Ground (n): The Tribunal erred at law by not following the decision of the Guardianship and Administration Tribunal in DRF, Re [2003] QGAAT 4 (3 April 2003).
Re DRF[7] was a decision by the then Guardianship and Administration Tribunal which, on a review of the Adult Guardian’s appointment, replaced the Adult Guardian with DRF’s partner. As the decision shows there were various factors influencing that Tribunal to revoke the Adult Guardian’s appointment, none of which applied here.
[7] [2003] QGAAT 4.
The evidence in DRF indicated that circumstances had changed since the initial appointment of the Adult Guardian. A conflict between DRF’s partner and a nursing home had resolved. While conflict between family members remained unresolved none of DRF’s family (apart from the appointee) resided in Australia the possibility of conflict impeding DRF’s care was remote. Finally, the Tribunal concluded that DRF’s partner would have no difficulty applying the general principles in his decision-making role for DRF.
The only similarity between DRF and the instant case is the fact of conflict between family members. However, for the reasons expressed, that issue was unlikely to impact on DRF’s well-being.
In the adult’s circumstances here, the Tribunal expressly found otherwise.
The applicant’s appeal on this ground must fail.
Ground (o): The Tribunal erred in law by not following the decision in Adult Guardian v Hunt [2003] QSC 297.
In particular the applicant refers to a statement of Chesterman J in that case in relation to the role of the Adult Guardian that: … where such a person has friends or family who are able and willing to provide the requisite support and assistance it is, in my view, preferable that they be allowed to do so rather than be supplanted by a bureaucrat …
This was a decision dismissing an appeal by the Adult Guardian, in which the Supreme Court upheld the decision in DRF. The relevant facts and findings of the former Tribunal in DRF have already been outlined.
Chesterman J refers, in the passage cited, to a person who is able to act as an appointee or, in the terms of s 14(2) of the Act, is appropriate for appointment. There is no divergence between the sentiment expressed by Chesterman J and the wording of s 14(2).
In deciding whether a person is appropriate for appointment, the Tribunal must consider the appropriateness considerations outlined in s 15 of the Act. The first of those is whether the person is likely to apply the general principles.
For reasons it has outlined in the decision the Tribunal considering this matter was not satisfied the applicant would be able to discharge her decision-making role in compliance with the legislation and the general principles. Again, for the reasons already explored, that finding was open to the Tribunal on the evidence before it.
The applicant’s appeal on this ground must fail.
Ground (p): The Tribunal’s finding about the administrator’s competence was against the weight of evidence and wrong.
It is submitted, firstly, that the administrator did not know the level of income at which the adult’s pension would be affected and that this was material evidence establishing incompetence.
The administrator’s evidence at the hearing indicated that she had some discussions with a financial adviser, and that this issue had been canvassed. She was unable to rehearse the advice in question but, in other respects, satisfied the Tribunal that she was administering with reasonable diligence and competence: she was, for example, taking the steps necessary to tenant the adult’s property. It was reasonably open to the Tribunal to find that there was no compelling evidence of incompetence, disqualifying the administrator.
Secondly, it is submitted that the administrator did not know that renting the adult’s property to a nephew would be a conflict transaction.
The audio recording of the hearing does not refer to a nephew as a potential tenant. The administrator mentioned a friend of a friend. The relationships giving rise to a conflict transaction are outlined in s 37(2)(b) of the Act. At its lowest level, the section refers to a person in a close personal or business relationship with the administrator.
That does not appear to have been the case here. In any event, the issue is academic: the proposed tenancy arrangement did not proceed, the evidence showed, because of the need to undertake repairs before the property could be rented out.
Thirdly, it is submitted the administrator had not received advice from a qualified financial advisor.
The administrator stated that she had discussed the adult’s financial circumstances with a financial adviser, but had not received any written advice. The failure to obtain formal advice is not unusual and is not, again, compelling evidence of incompetence. Materially, apart from her house the adult has relatively modest assets which will not require a consideration of investments in line with the ‘prudent person rule’, as outlined in s 24 of the Trusts Act 1973.
Finally, it is submitted that the administrator was aware that the adult’s assets were rapidly diminishing, but had not seriously attempted to rent or sell the property since her appointment.
The administrator acknowledged the diminution of the adult’s assets, and outlined reasons for the delay in dealing with the adult’s house. The administrator also indicated that arrangements for the necessary repairs were underway, with completion expected in the next two months.
The Tribunal’s reasons refer to the administrator’s accounts, and the financial assessment team’s conclusion that the administrator is complying with the Act.
The Tribunal’s finding that, on balance, the administrator has fulfilled her obligations under the Act was open to it on the evidence.
The applicant’s appeal on this ground must fail.
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.[8] An appellate tribunal may interfere, however, if the conclusion at first instance is contrary to compelling inferences in the case.[9]
[8]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.
[9] Chambers v Jobling (1986) 7 NSWLR 1 at 10.
The applicant’s contentions challenge the findings and conclusions of the Tribunals in the first and second decisions. The Appeal Tribunal is, for the reasons already explored at length, unable to identify any error in the findings and conclusions reached.
Leave to appeal will ordinarily only be granted where there is some question of general importance on 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. Leave to appeal is granted when it is necessary to correct a substantial injustice to the applicant, caused by some error.
For the reasons outlined the Appeal Tribunal does not find, in either decision under appeal any errors that give rise to a necessity to correct an injustice to the applicant. Leave to appeal in both matters is refused.
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