MNJ
[2017] QCAT 186
•1 June 2017
CITATION: | MNJ [2017] QCAT 186 |
PARTIES: | MNJ |
APPLICATION NUMBER: | GAA13377-16 GAA13378-16 |
MATTER TYPE: | Guardianship and administration matters for adults |
HEARING DATE: | 22 May 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Acting Senior Member Guthrie |
DELIVERED ON: | 1 June 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | GUARDIANSHIP 1. The withdrawal of the application for the appointment of a guardian by MAJ has not been approved by the Tribunal. ADMINISTRATION 2. The withdrawal of the application for the appointment of an administrator by MAJ has not been approved by the Tribunal. |
CATCHWORDS: | GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – APPOINTMENT – WITHDRAWAL – where application made for appointment of a guardian and administrator – where hearing adjourned by presiding member – where directions made seeking information about financial affairs of the adult – where directions have not been completely complied with – where applications listed for a resumed hearing before the original presiding member – whether leave should be granted to withdraw the applications Guardianship and Administration Act 2000 (Qld), s 6 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 46 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
On 14 December 2016, MNJ’s daughter, MAJ, applied to the Tribunal for the appointment of an administrator and for the appointment of a guardian for her father. These applications are made under the Guardianship and Administration Act 2000 (Qld) (GAA). The applications were accompanied by a health professional’s report which provides an opinion regarding MNJ’s capacity for decision-making. The application for the appointment of an administrator raised concerns about MAJ’s inability to assist her father with his financial affairs in the absence of an order under the GAA.
On 11 April 2017, the applications proceeded to a hearing before the Tribunal (differently constituted). The presiding member adjourned the hearing and made a number of directions, only some of which have been complied with by MAJ.
The directions sought information regarding MNJ’s financial affairs including making inquiries and searching records regarding dealings with a particular property, and the credit card debt incurred by MNJ with a particular bank. The presiding member also directed that a search of the Certificate of Title for a particular property be filed in the Tribunal by MAJ and that the Tribunal be informed of contact details for other family members who should then be advised of the adjourned hearing.
On 27 April 2017, MAJ sought leave from the Tribunal to withdraw her applications on the basis that “our family have sorted everything we need so we no longer need to proceed with this”. The resumed hearing has been listed for 20 June 2017 before the member of the Tribunal who conducted the hearing on 11 April 2017.
Section 46 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides:
46Withdrawal of application or referral
(1)An applicant may, in the way stated in the rules, withdraw the applicant’s application or referral for a matter before the matter is heard and decided by the tribunal.
(2)However, if the application or referral is made under any of the following, the applicant may withdraw the application or referral only with the leave of the tribunal—
…
(c)the Guardianship and Administration Act 2000;
…
(3)If an applicant withdraws an application or referral, the applicant can not make a further application or referral, or request, require or otherwise seek a further referral, relating to the same facts or circumstances without leave of the tribunal.
It is clear from section 46 of the QCAT Act that MAJ may withdraw her applications only with leave of the Tribunal.
On 22 May 2017, the registry referred the application to withdraw to me, as acting Senior Member, for consideration on the papers, as to whether leave should be given to MAJ to withdraw the applications. I have not given leave to the applicant to withdraw her applications.
My reasons for not giving leave are that the applications are part heard and listed for a resumed hearing before the original presiding member. I have also taken into account the nature of the directions made by that member. It is for the Tribunal to make the appropriate order based on the applications before it. I consider the most appropriate course in the circumstances of this case to be for the hearing to resume as was directed by the presiding member on 11 April 2017.
At the resumed hearing, the presiding member can make whatever order he considers appropriate to end the proceedings based on the information provided at the hearing by all active parties to the proceeding including the Public Guardian and the Public Trustee of Queensland and any other interested person who may wish to provide information to the Tribunal who might include the other family members referred to in the directions. That course will ensure that the purpose of the GAA as set out in section 6 is achieved for MNJ:
6Purpose to Achieve Balance
This Act seeks to strike an appropriate balance between—
(a)the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and
(b)the adult’s right to adequate and appropriate support for decision-making.
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