JZB
[2025] QCAT 28
•6 January 2025
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
JZB [2025] QCAT 28
PARTIES:
In an application about matters concerning JZB
APPLICATION NO: REO024-24 MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
6 January 2025
HEARING DATE:
6 January 2025
HEARD AT:
Brisbane
DECISION OF:
Acting Senior Member Kanowski
ORDER:
The application by HBA for the reopening of proceedings GAA9154-23, GAA9157-23 and GAA9158-23 is granted.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – OTHER MATTERS – OTHER CASES – where applicant did not attend hearing – whether a reopening ground established – whether application for reopening should be granted
Guardianship and Administration Act 2000 (Qld), s 114A
Human Rights Act 2019 (Qld), s 31(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(2), s 139, s 140, sch 3
APPEARANCES & REPRESENTATION:
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act2009 (Qld).
HBA was represented by M J Henry of counsel instructed by Fisher Law. Other parties were self-represented.
REASONS FOR DECISION
Introduction
Parties are not identified by name in these reasons because this would lead to the identification of an ‘adult’ in a guardianship proceeding, contrary to section 114A(2) of the Guardianship and Administration Act 2000 (Qld).
The ‘adult’, a woman in her late sixties, will be referred to as JZB; her husband as HBA; their son as SNA; and their daughter as DTA.
HBA applies for reopening of proceedings heard and decided by the tribunal on 13 March 2024. The proceedings arose from applications filed by HBA: an application for the appointment of an administrator, an application for the appointment of a guardian, and an application for an order about an enduring power of attorney. These were assigned the case numbers GAA9154-23, GAA9157-23 and GAA9158-23 respectively.
On 14 March 2024 HBA filed an application for reopening. Directions were made by the tribunal on 19 November 2024 for the application for reopening to be heard on the papers not before 18 December 2024. The directions also provided for submissions to be filed. Submissions were filed on behalf of HBA on 4 and 17 December 2024, and by SNA and DTA jointly on 10 December 2024.
I have decided to grant the application for reopening.
Background
JZB made an enduring power of attorney on 2 November 2021, appointing SNA and DTA as her attorneys for personal (including health) matters and financial matters.
In July 2023 HBA filed applications in the tribunal for the appointment of an administrator and the appointment of a guardian for JZB. He proposed that he be appointed as administrator and guardian for JZB. At the same time, HBA filed an application for an order about an enduring power of attorney. In that application he sought a declaration that the enduring power of attorney was invalid on the basis that JZB had lacked capacity to make it.
Medical reports on file describe JZB as having Alzheimer's dementia. There is a dispute about whether she had capacity in 2021 to make the enduring power of attorney.
HBA’s applications were filed in the context of family discord between himself and SNA and DTA. There are allegations and counter-allegations of elder abuse. A proceeding had been commenced in the Federal Circuit and Family Court of Australia by or on behalf of JZB for divorce. It appears that the divorce proceeding has been handled for JZB by SNA and DTA as her attorneys. HBA has been contesting the divorce proceeding, contending that the marriage has not broken down.
On 20 February 2024 the tribunal’s registry sent out to the parties a notice of hearing advising that the applications would be heard in Caloundra on 13 March 2024, and that parties could attend in person or by telephone. Registry records indicate that the notice was sent by email to HBA on 20 February 2024, to the email address he had supplied in his application forms.
I note that QCAT Practice Direction No. 1 of 2023 Emailing of documents by QCAT to parties, rather than posting, where practicable envisages that the tribunal will use email to send notices in many instances. The Practice Direction says (in paragraph 12) that ‘parties are expected to regularly check their email inbox for QCAT communications, that is, at least every second business day’.
JZB, SNA and DTA attended the hearing on 13 March 2024, by telephone, but HBA did not attend. The hearing was conducted by Member Gardiner. The transcript shows that the member said ‘we also emailed [HBA] with the details to call in to the tribunal using our normal Chorus Call’.[1] From my experience with tribunal hearings, I infer that this would have been an unsolicited email sent shortly before the hearing to all parties who had supplied an email address, advising the telephone number and a passcode to use if the party wished to attend the hearing by telephone. The transcript also shows that the member said that a tribunal officer had telephoned HBA: ‘at least four phone calls during the course of today … [but] the phone is clearly turned off’.[2] The tribunal proceeded to hear and decide the applications that had been filed by HBA. It dismissed those applications. The tribunal granted leave to DTA to resign as attorney, after DTA made an oral application in the course of the hearing for leave to resign.
[1]Transcript 1-11.
[2]Transcript, 1-10.
The next day, 14 March 2024, HBA filed his application for a reopening of the proceedings.
To succeed in a reopening application, the applicant must establish a ‘reopening ground’: section 139(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). ‘Reopening ground’ is defined:[3]
reopening ground, for a party to a proceeding, means—
(a) the party did not appear at the hearing of the proceeding and had a reasonable excuse for not attending the hearing; or
(b) the party would suffer a substantial injustice if the proceeding was not reopened because significant new evidence has arisen and that evidence was not reasonably available when the proceeding was first heard and decided.
[3]QCAT Act, schedule 3 Dictionary, definition of ‘reopening ground’.
HBA’s reopening application sought to rely on both grounds, but subsequent submissions have related only to the first ground. I consider that HBA’s initial invocation of the second ground was misconceived, and I do not propose to discuss it further.
In relation to the first ground, HBA says he believed the hearing was to be on 18 March 2024. He said in his reopening application:[4]
I was a self-represented litigant for most of this process.
I was actively misled by the solicitor acting for my children who told me (and my recently appointed solicitor) that the hearing was listed for 18 March 2024.
I am an elderly man who is not very good with modern technology and recently I have had difficulties with my old mobile phone and my email which appears to have been hijacked by another person, who is in control of it.
As a result, I needed to take out a new mobile phone number and have only had limited access to my email.
I have no record of having received an email on 20 February 2024 from QCAT about any listing on 13 March.
I did not know anything about the listing yesterday until the QPS arrived last night to do a welfare check on me and when I spoke to my lawyer this morning who had contacted QCAT about the trial he was briefed to appear in on the 18 March 2024.
…
[4]Annexure A to the reopening application.
HBA attached a copy of a letter dated 21 February 2024 from solicitors acting in the court proceeding, apparently for SNA and DTA (and, perhaps, JZB), to the solicitor acting for HBA in that proceeding. The letter confirmed telephone advice of the solicitors for SNA and DTA that the QCAT matter ‘has been listed on 18 March 2024’ and suggested that the parties seek a postponement of the divorce hearing which was listed for 22 March 2024 because of the short interval between the two hearings.
HBA also attached a printout of an email from his solicitor to the other solicitors dated 14 March 2024 to the effect that the solicitor had briefed counsel to appear for HBA at the tribunal hearing, which they believed, on the strength of the 21 February 2024 communications, was to be held on 18 March 2024, and that it had been intended to seek the tribunal’s leave for HBA to be represented in the tribunal proceedings. However, when the barrister contacted the tribunal that day (14 March), he discovered that the hearing had been held the previous day.
Submissions
HBA’s lawyers submit that HBA has a reasonable excuse for not attending the hearing on 13 March 2024. In addition to the matters already mentioned, they say that HBA has some memory difficulties after suffering a series of mini-strokes over the past decade. The proceedings should be reopened, they submit, to avoid substantial injustice. They then discuss some of the merits of the substantive applications. I do not propose to discuss the merits in detail. It is not necessary for me to form a view about whether HBA would have good prospects of success in the applications (if reopened). It is sufficient that he has, in my view, at least an arguable case in respect of at least some of his applications.
The submissions by SNA and DTA mainly focus on the merits of the substantive applications. In relation to HBA’s failure to attend the hearing, they say that ‘QCAT representatives at the first hearing noted that they made extensive efforts to engage with [HBA], including multiple phone calls leading up to and on the day of the hearing’.[5] However, I note that the transcript refers only to calls on the day of the hearing. SNA and DTA also say they had not been involved in the tribunal scheduling process. I accept that, but I note that they do not address the topic of their solicitors misinforming HBA’s solicitor about the tribunal hearing date.
[5]Submissions filed 10 December 2024, first page.
SNA and DTA in their submissions describe HBA as ‘a mentally unfit individual with limited capacity to manage his affairs’.[6]
[6]Ibid, second page.
SNA and DTA submit that ‘reopening this case would serve only to inflict additional financial and emotional harm on [JZB] and her children’.[7]
[7]Ibid, third page.
Findings
The evidence of the correspondence between the lawyers has not been contested, and I accept it. I find that from 21 February 2024, HBA’s lawyers and in turn HBA believed, based on the oral advice and the letter from the solicitors acting for SNA and DTA, that the tribunal hearing was scheduled for 18 March 2024.
I also accept HBA’s evidence that he was unaware until 14 March 2024 of the 13 March 2024 hearing date, as for some reason he had not seen the email dated 20 February 2024 or the email sent shortly before the hearing. It is unclear whether his email account had been hacked, or he was simply technically incompetent. SNA and DTA in their submissions highlight HBA’s limited competence in managing his affairs. It is also unclear whether HBA’s telephone was switched off on 13 March 2024: more likely he was using the new number by that time and the tribunal was unaware of it. I accept that by 13 March 2024 HBA had put the matter in the hands of lawyers who were intending to seek leave to represent him at the hearing which they believed was to be held on 18 March 2024. This belief was not irrational, as that date was specified in the letter of 21 February 2024. The lawyers would have expected to find out the time of the hearing when they contacted the tribunal seeking leave for HBA to be represented. It is apparent that HBA was keen to pursue his applications, given the speed with which he filed his reopening application once he learned that he had missed the hearing.
In all of these circumstances, I consider that HBA has a reasonable excuse for not attending the hearing on 13 March 2024. A reopening ground is established.
Outcome
The tribunal may grant a reopening application only if it considers that a reopening ground exists, and the ground could be effectively or conveniently dealt with by reopening the proceeding.[8] I consider that the reopening ground can effectively be dealt with by reopening the proceedings. The QCAT Act provides for a fresh hearing in the event of a reopening.[9]
[8]QCAT Act, s 139(4).
[9]Ibid, s 140.
Although the prerequisites to granting the reopening application are met, it remains a matter of discretion whether to grant the application. I am mindful that the tribunal must act fairly,[10] and that all parties have a right to a fair hearing.[11] I am also mindful that it was open to the tribunal to notify HBA of the hearing by email, and that reopening will inevitably cause inconvenience, uncertainty and anxiety for at least some other parties. On the other hand, the QCAT Act does envisage that it will be appropriate sometimes for proceedings to be reopened.
[10]Ibid, s 28(2).
[11]Human Rights Act 2019 (Qld), s 31(1).
On balance, I consider it appropriate to grant the application for reopening. HBA’s substantive applications raised issues of significance, including whether substitute decision-makers should move to end a long-standing marriage. There may be doubts about HBA’s suitability to be appointed as administrator or guardian, if either or both appointments are warranted, but it would be open to the tribunal to appoint the Public Trustee and the Public Guardian. HBA has a reasonable excuse for not attending the hearing, and he should be afforded another opportunity to argue his substantive applications at an oral hearing. Accordingly, the application for reopening is granted.
Conclusion
The application for reopening having been granted, I note that the tribunal’s registry will notify the parties in due course of the date and time for a further oral hearing of the applications that were listed for hearing on 13 March 2024.
I take this opportunity to note that SNA and DTA say in their submissions filed on 10 December 2024 that ‘points 12-16 referenced in [HBA’s] application have already been addressed thoroughly in prior supporting materials submitted to QCAT …’.[12] Points 12 to 16 contain a summary of key points made by HBA in his substantive applications. It does not seem to me that documents on the file (for the substantive applications) submitted by SNA and/or DTA thoroughly address the points in question. Perhaps they sent in some documents in that have not reached the file? It would be prudent for SNA and DTA to check with the tribunal’s registry whether all documents they sent in have been placed on the file, and, if relevant, to consider whether further evidence or submissions should be provided in advance of the oral hearing.
[12]Second page of the submissions.
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