KG v The Public Trustee of Queensland

[2011] QCATA 1

CITATION: KG v The Public Trustee of Queensland [2011] QCATA 1

APPELLANT:	KG
v
RESPONDENT:	The Public Trustee of Queensland

APPLICATION NUMBER:   APL224-10

MATTER TYPE: Appeals

HEARING DATE:     6 January 2011

HEARD AT:  Brisbane

DECISION OF: C Endicott, Acting Deputy President

DELIVERED ON: 6 January 2011

DELIVERED AT:      Brisbane

ORDERS MADE: Stay refused

CATCHWORDS :  APPEAL - STAY - where former administrator sought to stay appointment of new administrator pending appeal – absence of stay will not render appeal nugatory

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	KG on her own behalf
RESPONDENT:	THE PUBLIC TRUSTEE OF QUEENSLAND appearing by Acting Principal Public Trust Officer, Jeannette Gartner

The hearing took place on the papers in the absence of the parties.

REASONS FOR DECISION

1. On 24 August 2010 the tribunal made a decision that removed KG and NFN as administrators for GR and appointed The Public Trustee of Queensland as his administrator for all financial matters.  KG has commenced an appeal against that decision and has also applied for a stay of the operation of the tribunal’s decision until the appeal has been determined. 

2. The commencement of an appeal does not itself affect the operation of the decision under appeal.[1]  However, the tribunal can make an order staying the operation of the decision.  An applicant for a stay of a decision pending the outcome of an appeal does not have to satisfy the tribunal that special or exceptional circumstances exist to warrant the imposition of a stay.  Nevertheless an applicant for a stay must demonstrate a reason or an appropriate case to warrant the exercise of discretion to grant the stay of the order of the tribunal. [2]  Mere argument or speculation will not be enough to convince the tribunal to exercise its discretion in favour of the applicant for a stay. [3]

   [1] Section 145(1) of the Queensland Civil and Administrative Tribunal Act 2009

   [2] Alexander v Cambridge Credit Corporation Ltd op cit.

   [3] Re Middle Harbour Investments Limited (in liquidation) NSW Court of Appeal 15 December 1976.

3. The Queensland Court of Appeal in 2008 acknowledged that it is not appropriate to grant a stay unless a sufficient basis is shown as original decisions should not be treated as merely provisional.[4]  The Court of Appeal considered that generally speaking, courts (and tribunals) should not be disposed to delay the enforcement of their orders.  The Court of Appeal stated that the fundamental justification for granting a stay pending appeal is to ensure that the orders which might ultimately be made are fully effective.      

   [4] Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd [2008] QCA 322.

4. KG has submitted that she has experienced a stressful time since the appointment of The Public Trustee of Queensland as the administrator for GR and in her stay application she gives examples of the arrangements that have contributed to her stress.  KG submits that accounts for GR have not been paid on time by The Public Trustee of Queensland but accounts had been paid on time when she was GR’s administrator. 

5. In submissions in response to the stay application, The Public Trustee of Queensland has not commented on the allegation of stress made by KG but has submitted that funds held for GR have been applied to meet his needs. The submissions concede that accounts were on occasions not paid on receipt when there were insufficient funds available to meet the full amount of an account. It was submitted that other arrangements were put into place on those occasions.  

6. The submissions made by KG do not lead the tribunal inevitably to the conclusion that a stay of the decision to remove KG as the administrator for GR is necessary to ensure that the orders which might be made by the tribunal if she were to be successful in the appeal are fully effective.   If the appeal results in KG being returned to the role of administrator for GR, the account arrangements currently put into place by The Public Trustee of Queensland can be easily revoked.   The tribunal is not convinced that the absence of a stay will render nugatory a successful appeal outcome. 

7. In Cook’s Construction P/L v Stork Food Systems Aust Pty Ltd[5]  the Court of Appeal stressed that it would not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that decisions from the original hearing should not be treated as merely provisional.  The tribunal considers that it is in the public interest that a decision of the tribunal, made after a hearing of the evidence, should not be treated as merely provisional. 

   [5] Ibid at footnote 4.

8. Parties to a proceeding should have confidence that the tribunal process can deliver reliable outcomes that are fair, just, and economical.  KG has not demonstrated a reason to warrant the exercise of discretion to grant the stay.

9. The stay sought by KG is not granted.