Ng & NC v TR
[2010] QCATA 54
•24 September 2010
| CITATION: | NG & NC v TR [2010] QCATA 54 |
| PARTIES: | N G & N C (Applicant/Appellant) |
| v | |
| T R (Respondent) |
APPLICATION NUMBERS: APL079 -10
GAA3570-10
GAA3568-10
| MATTER TYPES: | Appeal Application for Stay of Decision Application for Interim Order |
HEARING DATE: 4 August 2010
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member |
DELIVERED ON: 24 September 2010
DELIVERED AT: Brisbane
ORDERS MADE: 1. Direct that the audit report referred to in
the order of Fryberg J made on 20 July 2010 in BS 7088/10 be provided to QCAT
2. Otherwise, dismiss the applicant’s
applications for a stay of the QCAT
orders of 25 March 2010; for interim
orders; and, for leave to appeal the
QCAT decision of 25 March 2010
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – CAPACITY – APPOINTMENT OF ADULT GUARDIAN AND THE PUBLIC TRUSTEE OF QUEENSLAND – POWER OF ATTORNEY – LEAVE TO APPEAL – where the tribunal at first instance determined that NE did not have capacity to revoke the enduring power of attorney or appoint another attorney in her stead – where the tribunal also determined that the Adult Guardian should be appointed to administer personal and health matters –where the applicants allege tribunal erred in fact or mixed fact and law by not finding that NE had capacity and for allowing TR to continue as attorney – whether the tribunal erred in fact or law – whether leave should be granted Guardianship and Administration Act 2000 BE v Office of the Adult Guardian & Anor [2010] QCATA 24, applied Chambers v Jobling (1986) 7 NSWLR 1, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT/APPELLANT: | Mr G Radcliffe of Counsel for NG and NC |
| RESPONDENT: | Mr A McLean Williams of Counsel for TR Ms Blackburne for The Public Trustee of Queensland |
REASONS FOR DECISION
These proceedings concern the affairs of NE, about which a decision was made by a QCAT Tribunal exercising jurisdiction under the Guardianship and Administration Act 2000 on 25 March 2010.
Under that decision it was determined that NE did not have the capacity (as at 29 September 2009) to revoke an enduring power of attorney which had earlier appointed the respondent T R on 31 October 2008; that NE did not have the capacity (as at 14 December 2009) to appoint NG as his attorney; that the Adult Guardian should be appointed to administer NE’s personal/health matters; and, that the respondent TR should continue in her role as attorney for NE’s financial matters.
NE has substantial wealth, with assets said to exceed $25,000,000.00 in value. In the proceedings before the Tribunal it was apparent that there has for some time been considerable distrust, and a lack of communication between NE’s three adult children who are the applicants (NG and NC) and the respondent (TR) here.
Their dispute has extended into the Supreme Court[1]. Even after the QCAT decision of 25 March one of the applicants, NC, was involved in an event in which NE transferred $200,000 from one of his bank accounts into an account in NC’s name. On 5 July 2010 the Chief Justice, in proceedings brought by NE’s bank, ordered that NC and her bank not deal with those funds.
[1] Supreme Court proceedings BS 6776/10 involving proceedings between the Commonwealth Bank and N C, and orders of A Lyons J on 29 June 2010 and de Jersey CJ on 5 July 2010; and, proceedings between the parties to the present appeal in BS 7088/10 involving orders by Fryberg J on 20 July 2010
In different Supreme Court proceedings, also brought by NG and NC against TR before Fryberg J on 20 July 2010, TR undertook to have no dealings with the affairs of NG until this Appeal Tribunal determined the application for leave to appeal, and the appeal if leave is granted, with exceptions involving expenses associated with accommodation, nourishment or health care.
The order also directed that an audit of NE’s financial and taxation affairs over the past five years be undertaken by an independent auditor, with whom TR was obliged to co-operate; that the results of the order be provided to all of the parties and to the registrar of the Supreme Court; and, that the substantive matters be otherwise be transferred to QCAT to be heard as part of this appeal proceeding.
The order of Fryberg J did not require delivery of the auditor’s findings to QCAT, but that is plainly desirable.
At the hearing before this appeal tribunal on 4 August 2009 all parties were legally represented and, if leave was not granted for representation then, we would do so now. The applicants sought a stay of the decision of the tribunal of 25 March 2010; interim orders appointing The Public Trustee of Queensland to administer NE’s affairs, in lieu of TR; interim directive orders that TR swear an affidavit about her dealings with NE’s accounts; leave to appeal against findings of fact made by the Tribunal at first instance; and, final orders reversing that decision or, in the alternative, appointing The Public Trustee of Queensland to administer NE’s affairs.
We can see no apparent utility in ordering a stay, or interim orders in light of the orders made by Fryberg J. There is no compelling evidence of any threat to the assets of NE, and the steps set out in the order made by Fryberg J are likely either to allay, or confirm, the persistent intra-family concerns and suspicions. The orders flow from an application in which the present applicants sought essentially the same relief, from the Supreme Court as they now pursue here. They ensure the respondent cannot act in her father’s financial affairs without notice to the applicants, her siblings, until this appeal proceeding is finished.
The applicants concede that their grounds of appeal involve questions of fact, or mixed questions of law and fact and that they are, therefore, obliged to seek leave to appeal: Queensland Civil and Administrative Tribunal Act 2009, s 142(3)(b) (QCAT Act).
Their grounds are four: that the Tribunal erred in failing to find that the attorneyship granted to TR was revoked; that it also erred in finding NE lacked capacity to revoke the existing power of attorney to TR, and grant a new one appointing NG; that it erred, again, in finding that it was in the best interests of NE that TR continue to act as his attorney; and, that it was mistaken in failing to appoint an independent administrator for NE.
The reasons of the tribunal and the transcript of the proceedings before it do not demonstrate any error of law, or fact. It is clear that the tribunal was alert to, and fully considered, the issue of serious conflict between the adult children of NE. It also had the benefit of hearing from a range of legal and medical witnesses and, also, of what has been called the ‘feeling’ of the case, which this appeal tribunal cannot fully share[2]. In their careful reasons, the two experienced tribunal members explained how, and why, they had determined that certain evidence should be given weight, and other evidence should not.
[2] Maynard v West Midlands Regional Health Authority [1984] 1 WLR 634 at 637; and, see Chambers v Jobling (1986) 7 NSWLR 1 at 25
The first ground – the alleged error in the finding that the appointment of TR was not revoked – is belied by the evidence to which the tribunal referred, and upon which it chose to rely. The careful chronology in the reasons traces, in particular, the medical evidence, and shows how reliance upon it was entirely warranted in light of the doctors’ opinions. The fact that a solicitor who witnessed the later attempt at a new EPA in December 2009 had a different view, and the tribunal’s rejection of his opinion, is fully explored and explained in paragraphs [21] and [22] of the reasons, in terms which reveal a careful analysis of the evidence and a plain and convincing explanation for its rejection.
The same conclusion attaches to the second ground – the challenge to the finding that NE lacked capacity to revoke the 2008 grant to TR, and to make a new appointment in December 2009 in favour of NG. At paragraphs [13] – [19] the tribunal traversed the strong evidence, from three medical practitioners and a number of other disinterested persons, and the results of MMSE and neuropsychological testing, which persuaded it to make the findings it did. It is impossible to conclude anything other than that the weight of independent medical and other evidence pointed to the conclusions the members reached. Their reasons for doing so are fully and clearly explained and, in our view, unassailable.
The third ground attacks the finding that TR’s attorneyship should be allowed to continue, albeit with the additional appointment of the Adult Guardian. Again, the learned members were diligent in considering whether an independent administrator should be appointed and, at [55] – [62] explained how and why they had concluded that the choice made by NE when he had capacity about the identity of his chosen attorney should be given weight, and why they found TR’s evidence of her past acts, and her intentions, did not warrant her removal or the imposition of another entity in her stead.
The criticism of TR’s past conduct has also, it should be observed, been ventilated elsewhere and, again, should not lead to her removal. The detailed allegations made against her in submissions are accompanied by an assertion that the tribunal failed to adequately look into the detail of her administration to date. That is, again, belied by the careful explanation set out in the reasons at page 10. We are not persuaded there was any evidential basis by which it can be argued that the tribunal should have found that TR had mishandled, or would mismanage, NE’s affairs. In practical terms, the applicants now have the comfort provided by the order of Fryberg J.
Leave to appeal will only be granted, ordinarily, where there is some question of general importance upon which further argument, and a decision of the appeal tribunal, would be of public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant will obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?
This case is similar to that which confronted the appeal tribunal in BE v Office of the Adult Guardian & Anor [2010] QCATA 24 in which the following was said:
The facts here, involving inter-family dispute, a breakdown in relations and trust between principal and attorney, and a failure by the attorney to keep required records for an EPA are not unusual and there are no questions of importance about which further argument and a decision of the Appeal Tribunal would be of further advantage.
Here, it might be said, there is no persuasive evidence of any wilful or mischievous failure by the respondent to act properly; rather, this is another instance of deep-rooted suspicion between the offspring of an adult whose affairs require management which, on examination by an experienced tribunal, has been found to be unwarranted.
In our analysis, nothing in the decision at first instance suggests or reveals any error, either of law or fact. Indeed, the decision is admirably explained in comprehensive and persuasive reasons. Leave to appeal should be refused.
It follows that, save for an order that the audit report ordered by Fryberg J should also be provided to QCAT, the applications brought by the applicants should be dismissed.
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