LER - [2019] QCAT 406

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

LER [2019] QCAT 406

PARTIES:

In applications about matters concerning LER

APPLICATION NO/S:

GAA2644-19 Application for non-publication order

GAA2738-19 Application for confidentiality order

GAA2739-19 Application for non-publication order

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

15 October 2019

HEARING DATES:

8 March 2019 and 30 May 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

ORDERS:

1.   The application for a confidentiality order is dismissed.

2.   The applications for non-publication orders are both dismissed.

THE TRIBUNAL DIRECTS THAT:

1. The Principal Registrar refer these reasons to the Commissioner of Police to consider the prosecution of those persons and entities who may have breached s 114A of the Guardianship and Administration Act 2000 (Qld).

2. For the purposes of direction 1, the Tribunal authorises the disclosure to the Commissioner of Police, of the identity of the adult about whom these proceedings concern and the other persons referred to in these reasons pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld).

3.   The Tribunal directs that a copy of these reasons for decision be provided in an unredacted form to the persons and entities to whom notice of the hearings was given.

4. The Tribunal directs that only the redacted version of these reasons, in compliance with s 114A(2) of the Guardianship and Administration Act 2000 (Qld) be otherwise published.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where an online article was published in relation to the adults affairs – where an applicant applied for a non-publication order – where the Tribunal initiated a non-publication order and a confidentiality order – where it was found that the article referred to a guardianship proceeding – whether s 114A of the Guardianship and Administration Act 2000 (Qld) had have been breached by publication of the article – whether the matter should be referred to the Commissioner of Police to consider prosecution

Acts Interpretation Act 1954 (Qld) s 14A, s 14B
Criminal Code Act 1899 (Qld) s 7(1)(c), s 7(1)(d), s 8, s 24, Schedule 1
Guardianship and Administration Act 2000 (Qld) s 7, s 11, s 11A, s 31, s 31(4), s 33, s 100, s 108, s 108(3), s 109, s 109(3), s 111, s 112, s 113, s 114A, s 114A(2), s 114A(5), s 114A(6), s 114A(8), s 119, s 125, s 209(1)(a), s 209(1)(b), s 210, s 249 Schedule 1, Schedule 4
Justices Act 1886 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2), s 9
United Nations Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (adopted 13 December 2006) art 22

Bergmann v DAW [2010] QCA 143
Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402
LER (No 2) [2018] QCAT 431
LSS v LN, LG & Public Guardian [2016] QCATA 133
Oates & Q (2010) FLC 93-451
Re Edelsten; Ex parte Donnelly (1988) 80 ALR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: LER [2019] QCAT 406
Case: [2019] QCAT 406
Decision Date: 15 October 2019

CaseChat Overview and Summary

The case involved an application by the Public Trustee Queensland (PTQ) to the Queensland Civil and Administrative Tribunal (QCAT) for non-publication and confidentiality orders in relation to an article published online. The article concerned the guardianship proceedings of an adult, LER, who was deemed to have impaired capacity. The PTQ, as the appointed administrator for LER, sought to prevent the public identification of LER due to concerns that such identification would breach the confidentiality provisions outlined in the Guardianship and Administration Act 2000 (Qld). The legal issues before the tribunal were whether section 114A of the Act had been breached by the publication of the article and whether the matter should be referred to the Commissioner of Police to consider prosecution.

The tribunal concluded that it had jurisdiction to hear and determine the applications, despite arguments from Legal Services Commissioner (LSS) that the tribunal was not a 'Chapter 3 court' and lacked the authority to make such orders. The tribunal found that the Guardianship and Administration Act conferred the necessary jurisdiction and power on the tribunal to make non-publication and confidentiality orders. The tribunal also rejected LSS's argument that the PTQ lacked standing, confirming that as the appointed administrator for LER, the PTQ had standing in the proceedings. The tribunal found that the publication of the article did not breach section 114A, as the provision did not prevent the publication and the interim order did not result in the removal of the article from online sites. Consequently, the tribunal dismissed the applications for non-publication and confidentiality orders.

The tribunal directed the Principal Registrar to refer these reasons to the Commissioner of Police to consider the prosecution of those who may have breached section 114A. The tribunal also authorised the disclosure of the identity of the adult and other relevant persons to the Commissioner of Police. A copy of the tribunal's reasons was to be provided to the parties in an unredacted form, while only a redacted version was to be published in compliance with section 114A(2) of the Act.

Orders

Orders of the court

1. The application for a confidentiality order is dismissed.

2. The applications for non-publication orders are both dismissed.

THE TRIBUNAL DIRECTS THAT:

1. The Principal Registrar refer these reasons to the Commissioner of Police to consider the prosecution of those persons and entities who may have breached s 114A of the Guardianship and Administration Act 2000 (Qld).

2. For the purposes of direction 1, the Tribunal authorises the disclosure to the Commissioner of Police, of the identity of the adult about whom these proceedings concern and the other persons referred to in these reasons pursuant to s 114A(5) of the Guardianship and Administration Act 2000 (Qld).

3. The Tribunal directs that a copy of these reasons for decision be provided in an unredacted form to the persons and entities to whom notice of the hearings was given.

4. The Tribunal directs that only the redacted version of these reasons, in compliance with s 114A(2) of the Guardianship and Administration Act 2000 (Qld) be otherwise published.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 114A had not prevented the publication of the article. Further, the making of the interim order did not result in the article being removed from online sites. At the time of delivering this decision, the article remains online. The evidence and submissions of the participants I have considered all of the information provided at the oral hearings as well as the written submissions provided to the tribunal by the various parties and person/entities with standing to be heard. Given my decision not to appoint Mr Sheehy as representative for LER, my decision that Mr Sheehy did not have standing to bring the application for a confidentiality order, the fact that Mr Sheehy did not take any active role in the hearing, there is no need for me to address allegations made by LSS regarding Mr Sheehy. Channel 9 indicated that it did not intend to provide any submissions or attend at the hearing. Fairfax Media on behalf of the publisher or the article and the journalist advised the tribunal similarly. Does the tribunal have power to determine the applications? LSS submitted that the Tribunal could not make any orders as the Tribunal was not a ‘Chapter 3 court’. LSS said that the Tribunal can make administrative decisions but not orders. LSS argued that only a court can interpret the law. LSS also submitted that ‘estoppel is common law’ and the applications should be dismissed on an estoppel argument. I understood LSS’s estoppel argument to be that I could not make the orders sought as the PG, the PTQ, as well as Mr Sheehy and other parties were aware of the article prior to and after its publication and were now estopped from arguing that a non‑publication order should be made. As I understand it, LSS argues that they were aware of the story and let it go ahead so estoppel applies. Further, LSS said that the applications should be dismissed for lack of jurisdiction and that the Tribunal cannot make ‘judicial’ decisions. Pursuant to s 9 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’), the Tribunal has jurisdiction to deal with matters it is empowered to deal with under the QCAT Act or an enabling Act. An enabling Act is an Act that confers jurisdiction on the Tribunal.[8] The GAA is an enabling Act as it confers jurisdiction on the Tribunal.[9] [8]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 6(2).[9]GAA s 7. Section 108 of the GAA gives the Tribunal power to make a non-publication order. Section 109 of the GAA gives the Tribunal power to make a confidentiality order. In Re HFI,[10] I decided that an application for a non-publication order and an application for a confidentiality order could be determined in the absence of another application under the GAA. The same reasoning applies in this case. [10][2018] QCAT 279, [26]. I conclude that I have jurisdiction and the power to hear and determine the applications before me. LSS claimed the PTQ had no standing in the applications. I do not accept that submission. The PTQ as appointed administrator for LER is an active party in these proceedings under s 119 of the GAA. Further, and in any event, as a person or entity that might be adversely affected by any order I might make in these applications has standing to be heard pursuant to s 111 of the GAA. Has there been a publication of information likely to lead to the identification of LER by a member of the public or a section of the public?

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	LER [2019] QCAT 406
PARTIES:	In applications about matters concerning LER
APPLICATION NO/S:	GAA2644-19 Application for non-publication order GAA2738-19 Application for confidentiality order GAA2739-19 Application for non-publication order
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	15 October 2019
HEARING DATES:	8 March 2019 and 30 May 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie
ORDERS:	1. The application for a confidentiality order is dismissed. 2. The applications for non-publication orders are both dismissed. THE TRIBUNAL DIRECTS THAT: 1. The Principal Registrar refer these reasons to the Commissioner of Police to consider the prosecution of those persons and entities who may have breached s 114A of the *Guardianship and Administration Act* 2000 (Qld). 2. For the purposes of direction 1, the Tribunal authorises the disclosure to the Commissioner of Police, of the identity of the adult about whom these proceedings concern and the other persons referred to in these reasons pursuant to s 114A(5) of the *Guardianship and Administration Act* 2000 (Qld). 3. The Tribunal directs that a copy of these reasons for decision be provided in an unredacted form to the persons and entities to whom notice of the hearings was given. 4. The Tribunal directs that only the redacted version of these reasons, in compliance with s 114A(2) of the *Guardianship and Administration Act* 2000 (Qld) be otherwise published.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – OTHER MATTERS – where an online article was published in relation to the adults affairs – where an applicant applied for a non-publication order – where the Tribunal initiated a non-publication order and a confidentiality order – where it was found that the article referred to a guardianship proceeding – whether s 114A of the Guardianship and Administration Act 2000 (Qld) had have been breached by publication of the article – whether the matter should be referred to the Commissioner of Police to consider prosecution Acts Interpretation Act 1954 (Qld) s 14A, s 14B Criminal Code Act 1899 (Qld) s 7(1)(c), s 7(1)(d), s 8, s 24, Schedule 1 Guardianship and Administration Act 2000 (Qld) s 7, s 11, s 11A, s 31, s 31(4), s 33, s 100, s 108, s 108(3), s 109, s 109(3), s 111, s 112, s 113, s 114A, s 114A(2), s 114A(5), s 114A(6), s 114A(8), s 119, s 125, s 209(1)(a), s 209(1)(b), s 210, s 249 Schedule 1, Schedule 4 Justices Act 1886 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 6(2), s 9 United Nations Convention on the Rights of Persons with Disabilities, UN Doc A/RES/61/106 (adopted 13 December 2006) art 22 Bergmann v DAW [2010] QCA 143 Bucknall v Guardianship and Administration Tribunal (No 1) [2009] 2 Qd R 402 LER (No 2) [2018] QCAT 431 LSS v LN, LG & Public Guardian [2016] QCATA 133 Oates & Q (2010) FLC 93-451 Re Edelsten; Ex parte Donnelly (1988) 80 ALR…