JW
[2013] QCATA 288
•15 October 2013
| CITATION: | JW [2013] QCATA 288 |
| APPLICATION CONCERNING: | JW |
| APPLICATION NUMBER: | APL001-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 11 September 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Kerrie O’Callaghan, Senior Member Barbara Bayne, Member |
| DELIVERED ON: | 15 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for leave to appeal on mixed law and questions of fact is refused. 2. The appeal on a question of law is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where the adult has a permanent disability – where QCAT on review removes The Public Trustee of Queensland and appoints a private administrator – where party seeks a review – where application to review the appointment dismissed on grounds there was no relevant new evidence – where party seeks to appeal that decision – whether leave to appeal should be granted – where appeal on question of law – where leave and appeal refused. Queensland Civil and Administrative Tribunal House v the King (1936) 55 CLR 499 |
REASONS FOR DECISION
JW has a permanent disability arising from a diagnosis of Wernicke’s encephalopathy or Korsakoff’s syndrome.
A few years ago, the Tribunal appointed three members of her family as her administrators. This was changed in 2009 when the Tribunal replaced the family members with The Public Trustee of Queensland. At a hearing on 29 July 2010, the Tribunal removed the PTQ and appointed a private administrator, GBS. This appointment was for five years.
Following an unsuccessful appeal against this decision, JW’s fiancé, SI, applied in mid-2012 to QCAT for a review of the appointment of the administrator.
The following directions were made by the Tribunal on 23 August 2012:
(a)SI was to file the information that he intended to rely on at the review and to file submissions as to why the review application should continue to a hearing and not be dismissed without hearing in accordance with practice direction 8 of 2010; and
(b)A Member of the Tribunal would make a determination on the basis of the submissions and without an oral hearing as to whether to schedule the review application for hearing or whether to dismiss the review application.
In accordance with the directions, the application was considered ‘on the papers’ without an oral hearing on 23 October 2012. The Member decided that the application need not go to a hearing as none of the criteria for allowing an early review as set out in the relevant practice direction[1] had been met. He dismissed the application.
[1] Practice Direction Number 8 of 2010.
SI has sought leave to appeal or to appeal that decision on the grounds that[2]:
[2] As amended on 23 August 2013.
1.“Practice Note 8 of 2010 was wrongly implemented or applied to my circumstances
2.Use of s28 discretion to decide under s32 to hear application on the papers resulted in a contended breach of s29 where my “expressed views and assertions” could not possibly been fulfilled by no in-person hearing”.
Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. If however an appeal is based on a question of fact, or a question of mixed law and fact, it may only be made if the party has obtained the Appeal Tribunal’s leave to appeal[3].
[3] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(b).
The first ground involves questions of mixed of law and fact and as such SI requires leave to proceed with an appeal on that ground.
The second ground arguably involves only a question of law. SI appears to be submitting that he was denied natural justice in that the matter proceeded to a hearing on the papers. This is a question of law and as such we will consider the appeal on this ground without leave.
Prior to the hearing of the appeal SI sought leave to adduce new evidence before the Appeal Tribunal. This application was refused and as such we only considered the evidence available to the Member at the date of the hearing. We did not consider any new evidence submitted after that date.
If any new and relevant evidence has become available or if a relevant change in circumstances has occurred since October 2012, a new application for a review of the administrator could be submitted.
SI requested that RT, his friend and legal assistant, speak on his behalf[4] at the hearing of the appeal. RT spoke at length and in much detail to the reasons of the Tribunal dated 23 October 2012 and to the six pages of submissions and 12 pages annexures which formed the basis of the application for the review on that date.
Was practice direction number 8 of 2010 wrongly implemented or applied? Should leave to appeal be granted?
[4] The information and opinions presented here are referred to as those of SI.
The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]
[5] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
[6] Cachia v Grech [2009] NSWCA 232 at [13]
[7] QUYD Pty Ltd v Marvass Pty Ltd (supra).3
[8] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
The Member in applying Practice Direction 8 dismissed the application. Paragraph 5 of Practice Direction 8 provides that a review of an appointment of an administrator by the Tribunal will be conducted at the end of the appointment, as ordered by the Tribunal, except in cases where new or relevant information has become available since the hearing, or a relevant change in circumstances has occurred since the hearing or relevant information that was not presented to the Tribunal at the hearing has become available (our emphasis).
The reasons dated 23 October 2012 outline why the Member considered that none of the criteria in paragraph 5 had been met.
SI remains convinced that new information presented to the Tribunal of 23 October shows BGS has not acted honestly and with reasonable diligence and is in breach of s35[9]. He believes that the most important responsibility for BGS is to ‘go after JW’S lost financial interests’, which he considers have been misappropriated by the former family administrators. He asserts that BGS is however refusing to undertake an accountability exercise with them, but knowing how reprehensible they are, is instead socialising with them. In his opinion, various emails support that BGS is ‘knee deep in a conflict of interest’ situation with the former family administrators.
[9] Of the Guardianship and Administration Act 2000
SI considers that the Member made a mistake on 23 October 2012, ‘his mind set awry’.
In determining whether or not SI has a reasonable prospect to obtain substantive relief, we are guided by the principles outlined in House v R[10]. In that matter, their Honours state:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principals. It is not enough that the Judges composing the appellant Court consider that, if they had been in the position of primary Judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the Judge acts upon a wrong principal, if he allows extraneous or irrelevant matters to guide or affect him, if he mistake the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellant Court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary Judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellant Court may infer that in some way there has been a failure to properly exercise the discretion which the law reposes in the Court of first instance”.
[10] House v the King (1936) 55 CLR 499 at 505
SI submits that this test is satisfied here.
He is convinced that it should have been clear to the Member that BGS was failing in her duties and responsibilities. He says the Member clearly misapplied, misimplemented, overlooked and/or misinterpreted the evidence before him. He submits if the Member had considered all the materials in context and had put these into perspective, there is no way he could have reached the conclusion he did. He further considers that the Member was unreasonable in that he considered some evidence (the accounts) and didn’t consider other, and he failed to take relevant materials into account.
SI submits that the Member misused his discretion and failed to take into account the new, relevant and sufficient material which would have allowed the review to proceed. The Member simply ‘didn’t see it for what it was’.
Discussion
Although we acknowledge that the reasons of the Tribunal on 23 October 2012 are brief, they do detail why the Member reached his conclusions.
The Member considered that ‘the majority of the submissions contain material which was irrelevant to the actions of the administrator’. We agree.
Many pages of the submissions detail events and the actions of the family as administrators some years ago, and describe SI’s negative opinions of the family. Various allegations and assertions are made throughout the materials, many of which are unsubstantiated. The content of several emails basically confirms the ill will between SI (and RT) and various parties including GBS.
The Member also discounted SI’s concerns about the alleged efforts of GBS to remake JW’s will and appoint attorneys for her. We agree that this is irrelevant in that JW’s disability will prelude her, on the grounds of her incapacity, from so doing.
SI refers to the difficulties he and RT have had in obtaining various financial documents and returns. However, the Tribunal has appointed GBS as JW’s administrator[11] and as such she is accountable to JW, and to the Tribunal. Despite SI’s opinions to the contrary, the Member found that there was nothing in the material before him to support that GBS was not doing a satisfactory job. She had acted appropriately and had provided appropriate financial returns to the Tribunal as directed. We have examined the materials, and agree.
The Member was also satisfied on 23 October 2012 that no new or relevant information had become available since the hearing on 29 July 2010. We have perused the documents on file on which the Member based this determination and agree.
We do not consider there is a reasonably arguable case of error in the Member’s decision. Nor do we consider that SI has reasonable prospects of obtaining substantive relief on appeal. There is no evidence that a substantial injustice will result if leave is not granted and there is no question of general importance that should be determined by the Appeals Tribunal.
Leave to appeal on this ground is refused.
Did the use of s28 discretion to decide under S32 to hear application on the papers result in a contended breach of s29?
As this arguably is an alleged breach of natural justice, we are prepared to accept that is a question of law and hear the appeal on that basis.
SI claims he was denied natural justice in that he was not given the opportunity to appear in person at the hearing on 23 October 2012. He believes this is a serious error at law.
He considers the Member obviously misused or misplaced his discretion in that he failed to ensure that SI’s views were properly considered.
SI also asserts that he had trusted the Member to do the right thing, but there is proof that the Member was ‘off the mark’ and clearly had not understood the materials and put them into perspective. He submits if he had been there to explain his views and position, the Member would have had to come to a very different decision.
SI explained that he believed that we would be able to understand ‘what the documents were and what they were actually supposed to mean’ because he (and RT) were able to walk us through it all.
Discussion
We first considered the issue of the lack of an oral hearing.
The decision to hold the review hearing on 23 October 2012 on the basis of the documents was not made at the discretion of the Member who heard the application; it was done so at the direction of a Senior Member of the Tribunal.
As set out in paragraph 4 above, directions were made by the Tribunal on 23 August 2012 which spelt out that the matter would be considered without an oral hearing. SI did not object to this, and indeed asked for a time extension to submit further documents. The further order made on 14 September 2012 granting the time extension repeated that a determination would be made without an oral hearing.
SI was therefore informed of this in writing on two occasions. He had every opportunity to object and/or complaint, but only did so when the decision went against him. RT explained that SI didn’t really consider the directions. The hearing ‘went wrong’, and with the benefit of hindsight, SI should have been there.
There is no argument that SI ‘didn’t know how deal with’ the prospect of a hearing under s32 (2)[12]. He had every opportunity to inform himself. There is also no argument that SI should be able to change his mind about a hearing on the papers retrospectively (once he knew the outcome).
[12] As suggested by RT.
We are satisfied that SI was not denied any natural justice and has not been subject of any lack of procedural fairness.
We have also considered whether the Member had properly taken all relevant evidence into account.
The Member is a very experienced Member of the Tribunal who had obviously spent some time studying the documents before him. We do not accept the assertion that the Member did not understand the issues and would have so if SI (and/or RT) had been available in person to explain them. There is no evidence before us to support that the Member failed to fully consider the views and opinions of SI.
The Member’s perspective of the matters under contention is endorsed by us. Even with the benefit of the very lengthy and well detailed explanations and elucidations by RT, we have reached the same conclusions.
SI argues that we should today hear his appeal and conduct a review of the current administrator. He considers that we could, and should, under s146, set aside the decision of 29 July 2010 and substitute our own decision by replacing GBS with his proposed new administrator, RS.
We disagree. The only application before us today is for leave to appeal or to appeal the decision of the Tribunal on 23 October 2012. Even if these were successful, the only decision we could make today would be that the application for a review proceed to a hearing.
This is not necessary as this Appeal Tribunal finds that there was no apparent error made by the learned Member in exercising his discretion and dismissing the application on the papers.
The appeal on the second ground is dismissed.
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