NDS v The Public Trustee of Queensland - [2014] QCATA 325

CITATION:

NDS v The Public Trustee of Queensland [2014] QCATA 325

PARTIES:	NDS (Appellant)
v
The Public Trustee of Queensland (Respondent)

APPLICATION NUMBER:

APL268-14

MATTER TYPE:

Appeals

HEARING DATE:

17 September 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Endicott,
Member Gardiner

DELIVERED ON:

20 November 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal is refused.

2. The appeal on errors of law is dismissed.

CATCHWORDS:

APPEAL – GUARDIANSHIP – where an applicant was not appointed as a guardian and administrator – where the applicant had withdrawn his request for appointment as an administrator during the hearing and supported another person being appointed

CONDUCT OF THE HEARING – where the applicant as a self-represented person alleged that he had been overborne by the hearing – where the applicant had obtained legal advice prior to the hearing – where the advice was on the very issues raised at the hearing

Queensland Civil and Administrative Tribunal Act 2009 ss 28, 29

REPRESENTATIVES:

APPLICANT:

NDS represented by Mr R Garvey, Solicitor

RESPONDENT:

The Public Trustee of Queensland represented by Ms Tolg, Solicitor

REASONS FOR DECISION

NM is 80 years old. Until earlier this year, NM lived at home with her son and her brother. Due to increasing frailty, NM was placed into aged care accommodation, initially on a respite basis.
Her son, NDS, applied to the tribunal for an appointment of a guardian and administrator for NM as the aged care provider required that some formal decision making authority be in place. NDS proposed that he should be appointed as his mother’s guardian and administrator.
A hearing of the applications by NDS was conducted on 1 May 2014. NDS participated in person at the hearing but NM did not attend the hearing. During the course of the hearing, NDS indicated that he would support The Public Trustee of Queensland being appointed as the administrator for his mother.
The hearing member was not persuaded that a guardian was needed and dismissed the application for the appointment of a guardian. The hearing member was satisfied that an administrator was needed and appointed The Public Trustee of Queensland as the administrator for NM for all financial matters for an indefinite period of time but set out a requirement that the appointment is to be reviewed in two years.
NDS has lodged an application seeking to appeal the decision to appoint The Public Trustee as the administrator for his mother. The grounds for the appeal are stated to be:
a)    The decision was made based on an error by the tribunal that NDS was not unduly or unfairly overborne by the proceedings and/or the error that NDS was satisfactorily informed and disposed toward supporting the appointment of The Public Trustee;
b)    The decision was made with insufficient regard for due process, procedural fairness, natural justice and/or the tribunal did not take all reasonable steps in response to the needs of NDS to ensure he understood his eligibility to be administrator, how he could manage conflicts of interest, and the costs and implications of appointing The Public Trustee;
c)    Insufficient weight was given by the tribunal to the legislative principle of maintenance of existing supportive relationships.
As part of the usual directions made by the appeal tribunal prior to the hearing of the appeal application, NDS was directed to file a copy of the written transcript of the evidence in the hearing conducted on 1 May 2014 as well as the submissions on which he intended to rely in the appeal. NDS did not comply with those directions. He did not file either a copy of the transcript of evidence nor submissions in support of the appeal application.
He was legally represented at the hearing of the appeal application. His solicitor had filed an affidavit by NDS and at the hearing of the appeal application he sought leave to adduce the information contained in that affidavit into evidence to be taken into account by the appeal tribunal.
The appeal tribunal gave leave at the hearing to admit the information in paragraph 5 of the affidavit into evidence. The appeal tribunal reserved the question of whether any other paragraphs would be allowed as fresh evidence as part of the issues to be considered and decided in the appeal application.
Due to NDS’s non compliance with the directions of the tribunal, the members constituting the appeal tribunal did not have the benefit of having read the transcript before the hearing of the appeal application. As the manner in which the hearing member had conducted the hearing on 1 May 2014 was central to the grounds of the appeal, the tribunal obtained for itself a copy of the transcript of that hearing, including the reasons for decision. The transcript is the source of this appeal tribunal’s consideration of what took place during the original hearing as well as the information in paragraph 5 of the affidavit of NDS.
The hearing took 60 minutes. The hearing member explained what issues she had to decide at the start of the hearing. NDS told the hearing member at the very start of the hearing that his solicitor had explained the difference between a guardian and administrator to him. His words were: ‘Our solicitor explained it all to me’.[1] His solicitor did not attend the hearing but a friend, RC, attended the hearing with NDS.
[1]Transcript of the hearing held on 1 May 2014 page 3 line 3. .
The hearing member had also explained at the start of the hearing that she had to decide whether he was suitable for appointment or whether The Public Trustee was more appropriate for appointment as the administrator for his mother. After her explanation, the hearing member asked NDS whether he had any questions and he replied: ‘No. It’ll be right’.[2]
[2]Ibid page 3 line 44.
After discussing the application for the appointment of a guardian, the member indicated that she intended to dismiss that application as she was satisfied the evidence did not reveal any need for a formal appointment to be made about personal matters. The rest of the hearing (set out in pages 13 to 46 of the transcript) was about the application for the appointment of an administrator for NM.
The evidence given by NDS was that his mother had about $170,000 in cash assets and she owned jointly with her brother a house and surrounding 40 acres which had formerly been operated as a dairy farm. The house and land was valued at $510,000. NM and her brother had lived in the house with her son, NDS, before NM was placed into aged care accommodation. NM’s brother and her son, NDS, continue to live in the house.
The member sought to clarify, at the start of her consideration of the evidence about the application for the appointment of an administrator, whether NDS had any plans about how he would manage his mother’s half share of the house. She asked: ‘So what do you think then happens with your mother’s half of the house? How does that work for her? She didn’t ask for any rent from you or anything like that?’.[3] NDS replied in the negative.
[3]Ibid page 18 lines 33 – 35.
The member went on to ask: ‘So what’s sort of the plan? I mean, what’s the plan there?’.[4] NDS replied: ‘Mate, I don’t know. I haven’t even thought about it’.[5] The hearing member then went on to explain how an administrator had to be accountable and protect an adult’s assets. The member stated: ‘So they must make sure that they’re safe and that they are secured for her benefit and her benefit only’.[6]
[4]Ibid page 18 line 39.
[5]Ibid page 18 line 41.
[6]Ibid page 19 lines 18 – 19.
The hearing member then raised the requirement that conflict transactions are avoided: ‘It’s always a little bit tricky when people have shared houses and things like that. The law also says that you should avoid conflict transactions. That is, you can’t give your mother’s property away. You can’t mix her property with yours’.”[7]
[7]Ibid page 19 lines 23 – 25.
NDS replied: ‘Yeah, I know. My solicitor explained all this’.[8] The transcript reveals that the hearing member went through several scenarios of what might be considered a conflict transaction and explained that the tribunal’s approval would be required for those sorts of transactions. NDS was asked if he understood what the member was saying and he replied: ‘Yeah. I see what you mean. I see – I understand what you’re saying’.[9]
[8]Ibid page 19 line 28.
[9]Ibid page 23 lines 5 – 6.
The member then went on to address the basis on which NDS intended to remain living in the house owned by his mother and uncle. The hearing member discussed with NDS how certain household expenses would be paid and whether he would otherwise live in the house on a rent free basis. She clarified that NM had not asked her son to pay rent and NDS confirmed that that arrangement arose because he had been looking after his mother and uncle.[10]
[10]Ibid page 29 lines 18 – 27.
The transcript reveals that discussion continued between the hearing member and NDS about the limitations on what transactions he could enter into with the house if he were to be administrator. The member stated on several occasions that NDS would have to obtain approval from the tribunal if he wanted to sell his mother’s share of the house to his uncle or to himself. NDS replied each time by agreeing to what was being said by the member.
The hearing member went on to explain to NDS about lodging annual accounts with the tribunal each year and anticipated that he would be asked on those occasions to seek approval to live in the house without paying rent. The hearing member put forward for consideration of NDS the option of appointing The Public Trustee who could make decisions on an arm’s length basis about what, if any, rent should be paid by NDS. The member put this option on the basis that: ‘it stops you from having to come in asking for conflict transaction approvals all the time’.[11] NDS replied: ‘All right. Yeah’.[12]
[11]Ibid page 32 lines 4 – 5.
[12]Ibid page 31 line 7.
The transcript reveals further discussion with NDS in which he raises no objection to the appointment of The Public Trustee but indicates he knows where the local office is situated and that he could go there to see them. When asked directly by the hearing member whether he was opposed to The Public Trustee being the administrator, NDS answers: ‘No. No. mate. No’.[13]
[13]Ibid page 33 lines 36 – 41.
The hearing member went on to suggest that the appointment could be for a short period of time to get all the arrangements in place and later the appointment might be changed to him. NDS replied to that proposal: ‘Yeah. I’ll give it a go’.[14]
[14]Ibid page 33 lines 43 – 45 and page 34 lines 1 – 5.
The hearing member continued on to clarify that NDS understood what was being proposed. This exchange is recorded in the transcript:
Member: I think you used that word before, so the solicitor may’ve said something to you, did he?
NDS: Yeah. He did – said- he said it’s going to get complicated.
Member: Yeah.
NDS: And I said, what’s new?
Member: So did he tell you they might want the Public Trustee?
NDS: Yeah
Member: I think it might...
NDS: We’ve discussed the Public Trustee. He just said, just go [indistinct] to here and just see how it goes.
Member: Yeah. And look…
NDS: And if I have any issues, he said ring him, but I haven’t got issues with it, so…
Member: Yeah. All right.
NDS: But I’ll ring him and let him know – he wanted to know how it went, so I’ll ring him.[15]
[15]Ibid page 35 lines 17 – 43.
After further discussion, the member sought some final clarification from NDS about his support for the appointment of The Public Trustee:
Member: So you’re supportive of the Public Trustee..
NDS: Yeah.[16]
The hearing member informed NDS that The Public Trustee would charge for being an administrator and NDS replied that they could send him the bill.[17]
[16]Ibid page 43 lines 18 – 20.
[17]Ibid page 45 lines 21 – 24.
The hearing member shortly afterwards raised the benefits of having someone other than NDS being the administrator for NM.
Member: Yeah. Well that’s a matter for you to decide, and it’s much easier if someone else is managing it and you’re not caught up in the conflict. You can just be a son rather than wearing the legal hat…
NDS: Financial advisor, all that, yeah. All the other stuff.
When the member outlined the tasks that the administrator would have to do, NDS stated: ‘Good’.[18]
[18]Ibid page 46 lines 6 – 19.
Just before the member started reciting her reasons into the record, this further exchange took place:
NDS: Keep it in the government.
Member: So they are accountable to us, the same as you would be.
NDS: Keep it in the government departments, I say.[19]
[19]Ibid page 46 lines 23 – 27.
The final exchange before the reasons was this:
Member: …So the order will come out in a few days, but you must contact and you tell the solicitor that we thought, because of the potential conflicts..
NDS: Yeah.
Member: because of the ownership of the property and you living there..
NDS: I think he sort of was thinking of that.
Member: That might happen anyhow.
NDS: Yeah.[20]
[20]Ibid page 46 lines 34 – 46.
In the fresh evidence allowed in this appeal, NDS deposes that he was asked a lot of questions and he realised he was way out of his comfort zone during the hearing. Perusal of the transcript of the hearing does not support that assertion. Rather the transcript reveals that NDS had been prepared by discussions with his solicitor for the very issues raised by the hearing member about the existence of conflicts of interest arising out of his continued residence in his mother’s house. As a result, he demonstrated a ready understanding of the issues raised by the hearing member. His support of The Public Trustee being appointed as the administrator appears to be a voluntary decision he made during the course of the hearing and there is no evidence in the transcript of his being overborne or pressured by the hearing member to come to that decision.
NDS has not satisfied the appeal tribunal that there was an error made by the hearing member in her conduct of the proceedings. She explained the issues she had to decide and she explained what an administrator had to do, how any conflicts of interest had to be handled and that costs would be charged by The Public Trustee. This was in the context of NDS informing the hearing member that he had already sought advice from his lawyer and that he understood the issues that had been raised by the hearing member. The appeal tribunal is satisfied that the hearing member took all reasonable steps to discharge her obligations under sections 28 and 29 of the Queensland Civil and Administrative Tribunal Act 2000.
Grounds 1 and 2 of the appeal alleging that the hearing was marred by errors of law have not been established by NDS.
The third ground of appeal asserts that insufficient weight was given to the principle of the importance of maintaining existing supportive relationships. This ground of appeal must necessarily be based on the supposition that NDS remained a candidate for appointment when the hearing member was giving consideration to her final orders. That supposition cannot be supported. The transcript reveals that NDS had indicated that he supported the appointment of The Public Trustee and a compelling inference had to be drawn that he had withdrawn his request to be considered as the administrator for his mother.
The fresh evidence allowed into the appeal confirms that he had abandoned his request to be appointed during the hearing. The argument raised in this third ground of appeal could only have merit if the appeal tribunal is persuaded that the hearing member was obliged nevertheless to consider NDS as a candidate for appointment despite his abandonment of his request during the course of the hearing. No basis for that argument has been produced. The hearing member was not obliged to consider hypothetical options for appointment. The applicant appearing before her supported the appointment of The Public Trustee and that appointment alone was open to be made given the matters discussed during the hearing.
As there is no merit established in the third ground of appeal, leave to appeal on that ground is refused.
In view of the conclusions that all three grounds of appeal lack merit, it is unnecessary to make a decision on the application to adduce fresh evidence in the appeal. The evidence sought to be admitted (as opposed to what are submissions in paragraph 14 of NDS’s affidavit) could not assist the tribunal on grounds 1 and 2. As the appeal tribunal has concluded that NDS had withdrawn his request for appointment, the evidence sought to be adduced could not assist the appeal tribunal on ground 3 of the appeal as well. The application for leave to adduce fresh evidence, apart from paragraph 5, is dismissed.
The orders made by the appeal tribunal are as follows: leave to appeal, where required, is refused and the appeal on errors of law is dismissed.