MMA - [2014] QCAT 194

CITATION:

MMA [2014] QCAT 194

PARTIES:

MMA

APPLICATION NUMBER:

GAA1571-14

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott

DELIVERED ON:

26 March 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

The application for review of the appointment of an administrator by JJC is dismissed.

CATCHWORDS:

GUARDIANSHIP – where appointment of administrator had been made on an indefinite basis – where review sought of that appointment within three months of commencement of appointment

REVIEW OF APPOINTMENT – where requested review made by interested person – where tribunal may conduct review on request – where discretion in tribunal as to how review is conducted

PRACTICE DIRECTION – where review process set out in Practice Direction – where information needed to satisfy Practice Direction or review can be dismissed – whether information satisfied Practice Direction

Guardianship and Administration Act 2000 ss 28(1), 29(1)(b)(ii),and 31(1)

QCAT Practice Direction 8 of 2010

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 (QCAT Act).

REASONS FOR DECISION

The factual background to the appointment of an administrator in Queensland for MMA has been set out in the published reasons for the decision made on 21 November 2013 which appointed The Public Trustee of Queensland as administrator for all her financial matters until further order of the tribunal. I will not repeat that factual background.
Following the appointment on 21 November 2013, MMA’s son, JJC, applied to QCAT on 10 February 2014 to review that appointment. The application was made less than three months after JJC finished participating in a contested hearing which had resulted in the appointment of The Public Trustee of Queensland as administrator. JJC did not appeal the appointment.
Under the Guardianship and Administration Act 2000, the tribunal must review an appointment of a guardian or administrator at least every five years except if The Public Trustee is the appointee.[1] In that case, the appointment can be made indefinitely or in other words until further order of the tribunal. The appointment made in the case of MMA was made on an indefinite basis.
[1] Guardianship and Administration Act 2000 s 28(1).
However, the Guardianship Act provides that the tribunal may review an appointment of an administrator at any time on the application of an interested person for the adult.[2] As the son and also as the guardian of MMA, JJC has a sufficient and continuing interest in MMA. He comes within the category of an interested person for the purposes of seeking a review of the appointment. The tribunal has a discretion whether to conduct any such requested review as there is no obligation on the tribunal to proceed with a requested review.
[2] Ibid s 29(1)(b)(ii).
The Guardianship Act also provides the tribunal with express discretion to conduct a review of an appointment in the way it considers appropriate.[3] The tribunal has by way of a practice direction set out that reviews of the appointment of an administrator will be heard on the papers unless a member decides it is more appropriate to conduct an oral hearing of the review application.[4] In the absence in this case of any decision to conduct an oral review hearing, the review proceeded to hearing on the papers.
[3] Ibid s 31(1).
[4] QCAT Practice Direction No 8 of 2010.
In Practice Direction 8 of 2010, the tribunal acknowledges, consistently with the Guardianship Act, that it can conduct a review of an appointment prior to the end of the appointment period, including by inference indefinite appointments. The Practice Direction sets out the conditions on which a requested review would be conducted. In essence, the tribunal has to be satisfied that new and relevant information has become available, or a relevant change in circumstances has occurred since the appointment hearing or relevant information that was not presented to the tribunal at the appointment hearing has become available.
A further condition from the Practice Direction for a requested review requires the applicant to satisfy the tribunal that the current appointee is no longer competent or another person is more appropriate for appointment. The Practice Direction provides that the tribunal may hear and dismiss the review application if the information required by the Practice Direction is not disclosed to the tribunal.
JJC was sent a letter on 21 February 2014 by the tribunal registry enclosing a copy of the Practice Direction. He was requested to provide information to address the Practice Direction. He was informed that the review may be considered for dismissal after 28 February 2014.
In response, JJC provided lengthy submissions on the review under the headings found in Practice Direction 8 of 2010. Much of the information he provided traversed issues that had already been addressed during the previous hearing. If he had produced new and relevant information about those same issues, then he may have been able to satisfy the tribunal that some change should be made to the appointment even though only three months had elapsed since the last hearing.
I was not satisfied that the information produced by JJC was new and relevant to the issues to be determined in a review. JJC submitted that the tribunal had been effectively mislead by The Public Trustee at the earlier hearing as to the absence of, or about the extent of, any loss that MMA would sustain as a result of The Public Trustee being appointed as her administrator in Queensland when there was an administrator already appointed in South Australia. He refers to the fees that would be charged to MMA by The Public Trustee as part of the loss that would be sustained by MMA as a result of the appointment being made in Queensland.
However, the fact that MMA would be charged ongoing fees is not new and relevant information. In the reasons for decision of 21 November 2013 the tribunal recorded that JJC had already raised a concern about the cost of management fees in Queensland but nevertheless the tribunal was not persuaded that such a concern militated against the appointment of an administrator in Queensland and specifically against the appointment of The Public Trustee.
The information provided by JJC was neither new nor relevant to the issue as to whether there would be any financial loss to MMA arising from the effective transfer of the management of her financial affairs from South Australia to Queensland. JJC effectively relied on arguments he had already made at the hearing that the practical result of an appointment in Queensland would be the revocation of the South Australian appointment. In that case, costs already incurred by the South Australian Trustee, and oncharged against the funds of MMA, would not be recovered and reimbursed to her.
JJC provided information which he relied on as evidencing a relevant change in circumstances since the hearing. However none of the information was capable of establishing a relevant change in circumstances. What he described was what the tribunal would reasonably expect to happen after, and as a result of, an appointment. The Queensland administrator must take steps to obtain the property and funds of the adult and can charge fees for the services provided. That information does not amount to a relevant change of circumstances for the purposes of the Practice Direction.
JJC provided information which he described as relevant information that had not been presented to the tribunal at the last hearing. However the information was primarily about complaints about the South Australian Trustee and about various legal steps he had taken or had tried to take against the South Australian Trustee. The tribunal had on 21 November 2013 found that the bulk of evidence already presented by JJC arose from his concern that the appointment of a Queensland administrator would result in a loss of his capacity to litigate against the South Australian Trustee.
The information provided by JJC in February 2014 may have been relevant to that concern but I was not convinced that it was relevant to the issue of determining whether any changes should be made to the appointment of a Queensland administrator so soon after the commencement of the appointment. JJC had already been told by the tribunal that the tribunal has no jurisdiction to investigate the actions or decisions of an administrator appointed in other Australian states. The issues raised were a continuation of issues already rightly discounted by the tribunal as irrelevant to the appointment of a Queensland administrator.
JJC did not produce information that could satisfy the tribunal that another person was more appropriate for appointment as the administrator for MMA. He raised criticisms of The Public Trustee but failed to clarify who would be more appropriate for appointment. Rather he appeared to be seeking that the Tribunal mandate what The Public Trustee should be doing in the role of administrator in line with his views. His arguments went over the same ground that had been considered at the earlier hearing and reveal an inability on the part of JJC to accept the findings made by the tribunal in November 2013.
His real option, based on the arguments he raises, was to appeal the orders made on 21 November 2013. He did not do so and he cannot use the review process as an ersatz appeal.
The tribunal made orders appointing The Public Trustee until further order. The Guardianship Act provides the process for a review but the Act does not oblige the tribunal to proceed to an oral hearing of review applications. This review application from JJC did not satisfy me that an oral hearing should be conducted but rather I was satisfied that the application should be considered on the papers in accordance with the Practice Direction. For the reasons set out above, JJC did not satisfy me that there was sufficient evidence to warrant revocation or variation of the appointment of MMA’s administrator.
The application for a review of the appointment of the administrator for MMA was dismissed.