ND
[2012] QCATA 26
•17 February 2012
| CITATION: | ND [2012] QCATA 26 |
| PARTIES: | ND |
| APPLICATION NUMBER: | APL435-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member Susan Gardiner, Member |
| DELIVERED ON: | 17 February 2012 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal or permission to appeal is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where ND has a permanent disability – where QCAT appoints the Adult Guardian as guardian for some matters and The Public Trustee of Queensland as administrator for some matters – where an appeal is lodged against these appointments but which discloses no grounds – where the applicant is given further opportunities to provide grounds for leave or permission to appeal – where no further grounds disclosed Queensland Civil and Administrative Tribunal Act 2009, ss 28, 142 , Schedule 3 |
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
Senior Member Richard Oliver
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner
ND has an intellectual disability. On 2 November 2011, this Tribunal appointed the Adult Guardian as guardian for ND for decisions about some personal matters (accommodation, the provision of services and decisions about work arrangements, education and training) and The Public Trustee of Queensland as administrator for a range of financial matters. Both appointments are to be reviewed in five years.
The hearing on 2 November 2011 was attended by professional representatives of services who support ND in his hometown in central Queensland. ND and his father NA were given notice of the hearing but did not attend.
Instead of providing any positive input into the hearing process that concerned his son (for whom NA clearly has great affection), NA chose to contact the registry of the Tribunal by telephone prior to the hearing and to indicate a level of contempt for the process and for any application made concerning his son’s welfare.
On receipt of the order of the Tribunal dated 2 November 2011, NA filed an appeal. Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought[1].
[1] Section 142 Queensland Civil and Administrative Tribunal Act2009.
The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
NA’s application for leave to appeal did not specify any grounds for his appeal nor did it attempt to identify any error of law, or error generally on the part of the decision maker. Instead the applicant launched a personal attack on the professional personnel responsible for the original application being made for appointments to support his son. NA is clearly of the view that his son requires no assistance other than his own.
Directions were issued by the Appeal Tribunal on 7 December 2011, directing NA to file in the Tribunal submissions giving reasons why NA’s application for leave to appeal should not be struck out for failing to disclose any grounds for leave or permission to appeal. Upon receipt of these submissions, the decision of the Tribunal whether to strike out the application for appeal or leave to appeal would be determined on the papers without an oral hearing.
In response to these directions, NA spoke to an officer of the registry on 12 December 2011 who further explained the appeal process to NA, in particular that NA had to submit information to the Tribunal on any errors in the decision being appealed. NA was also referred by the registry officer to QCAT’s website for further information on appeals.
[10] A further submission was received from NA dated 17 December 2011. After relating some circumstances that affect his son ND and some family history, NA alleged that as he believed the applicants in the original proceeding had spent little time with ND, their evidence could only be based on hearsay. NA again launched a personal attack on the professional personnel responsible for the original application and asked this Appeal Tribunal to “dismiss” the earlier order and take action against the original applicants for wasting QCAT’s time.
[11] Section 28 of the Queensland Civil and Administrative Tribunal Act 2000 provides that the procedure for an appeal is at the discretion of the Tribunal (subject to the provisions of the Act)[6]. The Tribunal must observe the rules of natural justice; is not bound by the rules of evidence; may inform itself in any way it considers appropriate and must act with as little informality and technicality and speed as a proper considerations of matters permit. The Tribunal must also ensure that as far as practicable, all relevant material is disclosed to the Tribunal to enable it to decide the proceedings.
[6] “Proceeding” is defined in schedule 3 of the QCAT Act as including an appeal.
[12] NA has been given a reasonable opportunity to submit why NA’s appeal should not be struck out for failing to disclose any grounds for leave or permission to appeal. He has been advised in writing and also given verbal explanations by the Registry officers with reference to further sources of information. Despite these opportunities, NA has not demonstrated any grounds for leave or permission to appeal. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.
[13] While the Appeal Tribunal accepts that NA is motivated by nothing but the best interests of his son, his application for leave to appeal is refused.
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