PL v PT & Ors

Case [2018] QCATA 114

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

PL v PT & Ors [2018] QCATA 114

PARTIES:

PL
(applicant/appellant)
v

PT

(first respondent)

THE PUBLIC TRUSTEE OF QUEENSLAND

(second respondent)

GS

(third respondent)

APPLICATION NO/S:

APL343-17

ORIGINATING APPLICATION NO/S:

GAA6537-17

MATTER TYPE:

Appeals

DELIVERED ON:

16 August 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Endicott

ORDERS:

1.   The appeal is allowed.

2.   The Tribunal’s decision dated 25 September 2017 dismissing the application for a declaration about capacity is set aside.

3.   The application for a decision about capacity is remitted to the Tribunal for hearing by a differently constituted Tribunal and by a member who has not previously determined applications about PL.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where declaration of capacity sought – where certain evidence not considered – whether correct test for capacity applied – whether error in findings of fact – whether natural justice observed – whether  adequate reasons for decision

Guardianship and Administration Act 2000 (Qld), s 81(1)(a), s 115(1), s 115(2), s 130, s 146, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146

Albrecht v Ainsworth [2015] QCA 220
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Ericson v Queensland Building and Construction Commission [2016] QCA 140
Harrison v Meehan [2017] QCA 315
House v R (1936) 55 CLR 499
Re Minister for Immigration and Multicultural Affairs [2003] HCA 30
Urquhart (t/as Hart Renovations) v Partington [2016] QCA 87
Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. PL has filed an application for leave to appeal or appeal a decision of the Tribunal to dismiss an application for a declaration about his capacity.

  2. For the reasons later explained, we have allowed the appeal on a question of law. Therefore, PL does not require leave to appeal the Tribunal’s decision on the application concerned.[1] In deciding an appeal on a question of law only, we must proceed under s 146 of the QCAT Act in disposing of the appeal.[2]

    The relevant legislative provisions

  3. Under the General Principles provided for in the Guardianship and Administration Act 2000 (Qld) (the Guardianship Act), a person who has reached 18 years of age, is presumed by law to have capacity to make their own decisions.[3]  The presumption of capacity can be rebutted by evidence that a person cannot in fact make their own decisions.  However, it is not the mere availability of the evidence that results in…

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AGLC
PL v PT & Ors [2018] QCATA 114
Case
[2018] QCATA 114
Decision Date

CaseChat Overview and Summary

PL appealed against the Queensland Civil and Administrative Tribunal’s (QCAT) dismissal of their application for a declaration that they had capacity to make their own financial decisions. The appeal was heard by the Queensland Court of Appeal. The primary legal issues before the Court were whether the Tribunal had made adequate findings and given adequate reasons for its decision, and whether the Tribunal had applied the correct test for capacity, observed natural justice and observed relevant principles of law. The Court found that the Tribunal had failed to make adequate findings and provide adequate reasons for its decision. The Tribunal had not considered certain evidence relevant to capacity and had not applied the correct test for capacity. The Court also found that the Tribunal had not observed natural justice by failing to provide adequate reasons for its decision.

The Court concluded that the Tribunal’s decision was affected by error of law. The appeal was allowed, the Tribunal’s decision was set aside, and the application for a declaration about capacity was remitted to the Tribunal for a fresh hearing. The Court ordered that the application for a declaration about capacity be heard by another QCAT member who had not previously determined applications about PL. The Court also ordered that the Tribunal initiate a review of the appointment of PL’s administrator at the same time as the application for a declaration about capacity.

Orders

Orders of the court

1. The appeal is allowed.

2. The Tribunal’s decision dated 25 September 2017 dismissing the application for a declaration about capacity is set aside.

3. The application for a decision about capacity is remitted to the Tribunal for hearing by a differently constituted Tribunal and by a member who has not previously determined applications about PL.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Vague comments or assertions made during the course of hearing are not findings or reasons for a decision. Accordingly, we have concluded that the learned Member failed to make any or any adequate findings and failed to give adequate reasons for her decision.Conclusions and order For the reasons explained, we conclude that the Tribunal’s decision was affected by error of law. We conclude that because of the error/s of law made by the tribunal, its order dismissing the application for a declaration about capacity made must be set aside, and the application remitted to the Tribunal for a fresh hearing. The application for a declaration about capacity should be considered by another member who has had no prior involvement in the applications about PL. Although a review of the appointment of the administrator for PL was conducted in February 2018 while this appeal was pending, it would be appropriate for the Tribunal to initiate a review of that appointment to be heard at the same time as the application for a declaration about PL’s capacity. We make orders allowing the appeal and setting aside the Tribunal’s decision about the application for a declaration of capacity made on 25 September 2017. We also make orders remitting the application for a declaration about PL’s capacity for financial matters back to the tribunal for hearing by another member who has not previously determined applications about PL.

Ratio Decidendi

Legal Principle Established

The Guardianship Act gives the Queensland Civil and Administrative Tribunal (QCAT) the function of making declarations about the capacity of an adult for a matter.[4] An application for a declaration about capacity may be made to QCAT by the adult concerned or by another interested person.[5] The Guardianship Act defines interested person as a person who has a sufficient and continuing interest in the other person.[6][4]Guardianship and Administration Act 2000 (Qld) ss 81(1)(a), 146.[5]Ibid ss 115(1), (2).[6]Ibid Schedule 4 dictionary.The Tribunal hearing of the application for a declaration of capacity Prior to 25 September 2017 a determination was made by QCAT that PL had impaired decision-making capacity for financial matters and an administrator was appointed for PL. Indeed, various orders have been made to similar effect since 2009 when PL sustained a brain injury as a result of a motorcycle accident. In May 2017, PL’s sister, PT, filed an application seeking a declaration that PL had capacity for making his own financial decisions. PT was an interested person in terms of the definition set out above and had standing to make the application about PL’s capacity. The application was accompanied by a health professional report dated 28 April 2017 from Dr Babatunde, a GP who had known PL, at the time of writing the report for about four months. Dr Babatunde stated in his report that he had had access to earlier medical records about PL. Dr Babatunde identified that PL had epilepsy as a result of an acquired brain injury sustained in 2009, but that the epilepsy condition was stable. Dr Babatunde referred to the outcome of a Mini Mental State Examination conducted in 2015, wherein PL scored of 30 out of 30, which Dr Babatunde stated was an indication that PL had no significant cognitive impairment. Dr Babatunde also referred to the existence of an earlier report about PL’s capacity from Mind Wise Psychology Services. Dr Babatunde reported that PL demonstrated a satisfactory ability to perform financial tasks, to understand consequences of not paying bills and to undertake legal and financial transactions. Dr Babatunde reported that PL was capable of making decisions freely and voluntarily and that there was no impairment of PL’s receptive or expressive communication. Dr Babatunde expressed an opinion that PL could understand and make his own decisions about both simple and complex financial matters. At the hearing of the application for a declaration about PL’s capacity, the Tribunal had before it Dr Babatunde’s health professional report, and other health professional reports about PL’s decision-making capacity about financial matters, primarily a 2015 report from Dr Michelle Andrews, a neuropsychologist from Mind Wise Psychology Services, and a 2011 report from Dr Geoffrey Boddice, a neuropsychologist. It also received oral and other evidence relevant to capacity from PL, PT and PL’s daughter at the hearing. Dr Boddice’s report was given in 2011 for the purposes of assessing PL’s ability to complete a home exercise program as part of his rehabilitation from his physical injuries and functional impairments. The 2011 report made no specific reference to any impairment of PL’s decision-making capacity for financial matters.