Public Trustee of Queensland v BN and Ors
[2011] QCAT 666
•19 December 2011
| CITATION: | Public Trustee of Queensland v BN and Ors [2011] QCAT 666 |
| PARTIES: | Public Trustee of Queensland (Applicant) |
| v | |
| BN (First Respondent) OE (Second Respondent) IBS (Third Respondent) |
| APPLICATION NUMBER: | GAA-6723-10 |
| MATTER TYPE: | Guardianship and administration matters for adults |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 19 December 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Answer the question referred under s 117(1) of the Queensland Civil and Administrative Tribunal Act 2009 – namely, whether QCAT has power to make an order for compensation under s 106 of the Powers of Attorney Act 1998 – in the negative. |
| CATCHWORDS: | ENDURING POWER OF ATTORNEY – where adult appointed three attorneys including de facto partner under EPA – where adult subsequently admitted to a nursing home – where a de facto property settlement agreement transferred all adult’s assets to de facto partner – where property agreement was executed on adult’s behalf by her three attorneys – where EPA revoked and de facto partner appointed sole attorney with public trustee as administrator – where public trustee brought application for compensation against the three attorneys – where nature and extent of Tribunal’s powers in respect of EPAs unclear – where presiding Member referred question of law from Tribunal to President under s 117 QCAT Act – whether an attorney appointed under an EPA may be ordered to pay compensation to the principal Acts Interpretation Act 1954, ss 14A(1), 14B. Kennon v Spry (2008) 238 CLR 366 applied |
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
The question I am asked to consider is whether an attorney, appointed under an Enduring Power of Attorney (EPA) may be ordered by this Tribunal to pay compensation to the principal.
The presiding Member in a QCAT Tribunal constituted to determine a claim for compensation has referred the matter under s 117(1) of the QCAT Act, which allows a question of law to be referred from the Tribunal to the President. The referral comes from both the presiding Member and the other panel Member who constituted the Tribunal.
The procedure under s 117 is akin to that which allows a Judge of the Supreme Court to reserve or ‘state’ a case, or a point in a case, for the consideration of the Court of Appeal.[1] Under the Uniform Civil Procedure Rules 1999 the case stated must set out the facts necessary to enable the Court of Appeal to decide the questions arising, or otherwise hear and decide them, and also state the questions to be decided. That procedure was followed by the QCAT Tribunal members here, in a referral document signed by the presiding Member on 25 August 2011.
[1] Supreme Court Act 1995, s 251.
Prior to that date the Tribunal had also sought submissions from the parties, and those submissions were included in the referral documents.
The matter before the QCAT members concerns a 62 year old woman who has been diagnosed with end-stage dementia. She now resides in a nursing home.
Under an EPA dated 15 August 2004 she had appointed the three respondents to be her attorneys for financial, personal and health matters. The first respondent, BN, was living with her as her de facto partner at that time. The second respondent, OE, is a solicitor. The third respondent, IBS, is her former spouse.
In the following year, 2005, she was admitted to a nursing home suffering from dementia.
On 7 June 2006 a de facto property settlement agreement was prepared by OE, on instructions from BN. The effect of the agreement was to transfer all the adult’s assets to BN.
It is not in dispute that the adult had impaired capacity in June 2006 and was incapable of any meaningful input about the terms of the agreement. Nevertheless, the property agreement was executed on the adult’s behalf by her three attorneys.
On 28 May 2009 QCAT’s predecessor, the Guardianship and Administration Tribunal, revoked the EPA and appointed BN the adult’s guardian and the Public Trustee as her administrator.
The Public Trustee, as administrator, brought an application for compensation against the three attorneys. On 28 January 2011 a QCAT Tribunal found that the attorneys had not acted with reasonable diligence to protect the adult’s interests in terms of s 66(2) of the Powers of Attorney Act 1998 (PAA); and, that they had breached a number of provisions of the legislation; and, had not established that they had acted honestly and reasonably to the extent that they ought fairly to be excused of any breaches under s 105 of the PAA.
The Tribunal then requested submissions about the proper method of quantifying the adult’s losses and the hearing was adjourned to a date to be fixed. Submissions were received.
In the interim, QCAT handed down its decision in LPJ [2011] QCAT 177 in which a Senior Member dismissed a claim for compensation against attorneys, brought on behalf of the estate of a deceased principal, on the basis that this Tribunal’s jurisdiction in relation to EPAs ceases on the revocation of the EPA instrument, occurring in that case by reason of the death of the principal. The decision was referred to the parties here, and they addressed it in further submissions.
Uncertainty about the nature and extent of the Tribunal’s powers in respect of EPAs is exemplified in the parties’ submissions about the provisions of the PAA and, also, the Guardianship and Administration Act 2000 (GAA).
Both the GAA and PAA contain provisions requiring each to be read in conjunction with the other.[2] The GAA also provides, however, that if there is any inconsistency between it and the PAA, the GAA prevails.[3]
[2] Guardianship and Administration Act 2000, s 8; Powers of Attorney Act 1998, s 6A.
[3] Guardianship and Administration Act 2000, s 8(2).
The Powers of Attorney Act 1998
The first legislative provision upon which the Tribunal and the parties have focused is s 106 of the PAA which provides that an attorney may be ordered by a Court to compensate the principal (or if the principal has died, the principal’s estate) for a loss caused by the attorney’s failure to comply with this Act in the exercise of a power (emphasis added). Under s 106(7) an attorney means an attorney under an enduring document (a term defined in s 28 to include an EPA); and Court is defined to mean ‘any court’.[4]
[4]Elsewhere, in Sch 3 of the PAA (‘Dictionary’) the word Court is defined to mean the Supreme Court.
Under the immediately following provision, s 107 (headed Power to apply to Court for compensation for loss of benefit in estate), if a person’s benefit in a principal’s estate under a will or on intestacy (or by other disposition) is lost because of a sale of other dealing with the principal’s property by an attorney, that person may apply to the Supreme Court for compensation out of the principal’s estate.
Sections 106 and 107 comprise the only two provisions in Chapter 5 Part 6 of the PAA, which is headed ‘Compensation’. As the learned Senior Member who determined LPJ observed, it would be surprising if the power granted under s 107, at least, was intended to be invested in QCAT because that section contains specific references to the Succession Act 1981 and applications under it, and the jurisdiction pertaining to the estates of deceased persons has long been vested in the Supreme Court, and remains so under that Act.
Read alone, s 106 does not readily convey the notion that the power to award compensation was intended, by the legislature, to be vested in a tribunal: the definition in s 106(7) (Court means any court) is not a phrase that, on its face, permits the conclusion that QCAT is included.
Other provisions of the PAA support the conclusion that, where compensation is concerned, the legislature intended to invest the power to award it in a court, and not the tribunal: s 66 requires that an attorney must exercise the attorney’s power honestly and with reasonable diligence to protect the principal’s interest and, under s 66(2), the Court may order the attorney to compensate the principal for a loss caused by any failure of this kind. The reference in that section to the court must, again, be construed under the definition in the Schedule 3 Dictionary, where it means only the Supreme Court.
There are, however, other provisions in the PAA which raise debate about the parameters of any overlapping, or complementary, jurisdiction which may be invested in the Court, and QCAT.
For example in the following Chapter 6, headed ‘Supreme Court’, s 109A gives QCAT: ‘…the same jurisdiction and powers for enduring documents as the Supreme Court’. The section itself has the heading: ‘Queensland Civil and Administrative Tribunal also has jurisdiction and powers about enduring documents’. Sub-section 109A(2) says that the PAA ‘… applies, with necessary changes, as if references to the Supreme Court were references to the Tribunal’.
Section 109A is immediately followed, however, by another Part of Chapter 6 which is headed ‘Court’s powers’ and contains s 110, under which the court is given power to decide applications for declarations, orders, and directions and, even, recommendations or advice to persons interested in an EPA.
As will shortly be seen, these powers closely mirror those granted to QCAT under the GAA and the reference to ‘the same jurisdiction and powers’ in s 109A is, in context, likely to do no more than confirm that simultaneous jurisdiction.
The Guardianship and Administration Act 2000
The GAA provides, in s 82(2), that the Tribunal ‘… has concurrent jurisdiction with the Court for enduring documents and attorneys under enduring documents’; and, Court is defined in Schedule 4 of that Act (‘Dictionary’) to mean the Supreme Court.
Section 81 gives QCAT specific functions under the GAA including, in s 81(1)(d), power to make declarations, orders or recommendations in relation to enduring documents. These powers include the power to give directions to a person ‘… who was formerly an attorney for a matter for the adult’.[5]
[5] Guardianship and Administration Act 2000, s 138AA.
The learned Tribunal Members who posed the question have referred to at least one previous decision in which the Guardianship and Administrative Tribunal interpreted s 109A widely, so as to include a power to make compensation orders against attorneys.[6]
[6] Re WCD [2006] QGAAT 27.
The parties’ contentions
The Public Trustee argues that LPJ was wrongly decided, because it misconstrues the term enduring document in s 109A(1) to mean QCAT only has jurisdiction in the case of an extant and operational EPA when, under s 106(1), the Court’s power to order an attorney to pay compensation is plainly extended to include claims against the principal’s estate, if the principal has died.
It is also said, for the Public Trustee, that there is an additional error in LPJ: namely, that it misapprehends the purpose of s 138AA of the GAA. That provision gives QCAT the power, ‘at any proceedings relating to an adult’, to give directions to an attorney ‘under a power of attorney’.
In LPJ the learned Senior Member concluded that the Tribunal’s powers to make orders about enduring documents and attorneys comes to an end when the enduring document has, itself, come to an end; but, as the Public Trustee points out, the Explanatory Memorandum for the Bill which introduced s 138AA makes no reference to revoked EPAs and says, instead, that the Bill includes that section to provide that the Tribunal may make a binding direction to a former attorney whose authority to act as an attorney has ended. It also observes that the Tribunal’s power to give directions of that kind to a former attorney extends to a direction requiring the attorney to provide information about past decisions so that appropriate orders or actions can be taken to protect the interests of that adult[7].
[7]Explanatory Notes, Guardianship and Administration and Other Acts Amendment Bill 2008, 4.
It is also submitted, for the Public Trustee, that s 81(1)(d) of the GAA should be construed so as to expand the Tribunal’s jurisdiction for enduring documents, granted under s 109A of the PAA. Under that part of s 81 the Tribunal’s functions include making declarations and orders in relation to attorneys, enduring documents, and related matters, and it is said that the phrase in relation to is of wide and general purport, and should not be read down in the absence of some compelling reason for doing so.[8] It is also said that the use of the term related matters expands the jurisdiction because the word related means associated, connected, or allied by nature.[9]
[8] Kennon v Spry (2008) 238 CLR 366, 440 (Kiefel J).
[9] The Macquarie Dictionary fifth edition (2009).
Section 82(2) is called in aid of this analysis; it says: ‘The Tribunal has concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents’.
Against this, OE’s submissions for the respondents contend that the jurisdiction for enduring documents granted to QCAT under s 109A is intended to be limited to the matters referred to in Chapter 6 of the PAA, in which it appears. That chapter is headed Supreme Court, and deals with the powers granted to that court (which are set out in Part 2) and, in general terms, confer powers relating to issues of capacity, validity, amendment and revocation of enduring documents.
Nothing in Chapter 6, it is said, expressly grants powers in respect of an award of compensation; rather, it primarily addresses the creation and termination of the powers of an attorney.
Section 106 appears, OE’s submissions point out, separately in Chapter 5 which deals with the exercise of power by attorneys and, with s 66, is the only provision containing a plain power to make awards of compensation. In Chapter 5 – but in no other chapter of the PAA – there is a reference to courts and tribunals, in different sections. It is said that this is an indication that the purposes of the Act was only to allow the Court (with appropriate monetary jurisdiction), and not the Tribunal, to award compensation.
It is also said, for the respondents, that the legislative scheme of the PAA is that QCAT does not have any powers in respect of revoked enduring documents unless expressly provided for; and, that its powers are confined to dealing with issues in respect of existing (non revoked) enduring documents.
As to the GAA, the respondents contend that the Tribunal’s powers and functions are limited to those set out in s 81, headed ‘Tribunal’s functions for this Act’. Those powers, mentioned earlier, begin by giving QCAT jurisdiction to make declarations about capacity, and to consider applications to appoint guardians or administrators, and appoint them. Sub-section 81(1)(d) gives a power to make declarations, orders or recommendations, or even directions and advice, in relation to guardians and administrators, and attorneys, and in relation to enduring documents. No power to award compensation is, however, granted to the tribunal.
Section 82(2), it is said, does not serve to expand these powers. Section 82(1) gives QCAT exclusive jurisdiction for the appointment of guardians of administrators for adults with impaired capacity. Section 82(2), which says the tribunal has concurrent jurisdiction with the court ‘for enduring documents and attorneys under enduring documents’ does not import powers that are not granted by s 81.
In short, the contentions are that, properly construed, s 106 in the context of the PAA does not extend the compensation power to the Tribunal; and, the GAA is to the same effect, and confines the Tribunal’s functions to procedural matters, including those contained in Chapter 6 of the PAA. It is said, then, that LPJ was correctly decided; and, that the same principles apply here because the EPA had been revoked by the Tribunal before any application for compensation was made by the Public Trustee.
Discussion
The process of statutory construction is to be undertaken in a way which, if possible, reaches an interpretation that will best achieve the purpose of the Act; and, an analysis and understanding which is consistent with the language and which achieves that result is to be preferred to any other[10]. Extrinsic material may be considered[11].
[10] Acts Interpretation Act 1954, s 14A(1).
[11] Acts Interpretation Act 1954, s 14B.
I have not found the interpretation of these two Acts, or these various provisions, straightforward. There are, with respect to the legislature, obvious tensions between the provisions discussed above, and they produce uncertainty about the limits (if any) to be placed upon QCAT’s powers, concerning EPAs, vis-à-vis those of the courts.
The GAA has the announced purpose of consolidating, amending and reforming the law relating to the appointment of guardians and administrators to manage the personal and financial affairs of adults with impaired capacity; and, to confer jurisdiction on QCAT for particular purposes.
The PAA announces its intention as an Act to consolidate, amend and reform the law about general powers of attorney and enduring powers of attorney, and to provide for advance health directives and for other purposes.[12]
[12] Powers of Attorney Act 1998, s 9.
As mentioned earlier, both Acts contain provisions requiring that each be read in conjunction with the other; but, the GAA also provides in s 8(2) that if there is any inconsistency between the two, the GAA prevails.
On its face s 82(2) of the GAA might, arguably, be construed to give QCAT concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents; and, s 109A(1) of the PAA might be interpreted to extend the jurisdiction for enduring documents so that QCAT’s powers are the same as those of the Supreme Court. These provisions, read in conjunction with s 138AA of the GAA provide, it might be thought, grounds for concluding that the purpose of the two pieces of legislation, read together, is to allow QCAT to do anything that a court might do in relation to enduring documents.
Ultimately, I am persuaded that there are sufficient indications in the legislation for it to be concluded that its intention and purpose was not to invest QCAT with all of the powers of the courts and, in particular, not to grant to the Tribunal the power to entertain and adjudicate upon claims for compensation of the kind referred to in PAA, s 106(1).
This is, firstly, because while the GAA makes provision for some tribunal powers in relation to EPAs, it contains nothing specific in terms of a power to make compensation orders. Sections 81 and 82 of the GAA add nothing, touching the question of compensation, to the Tribunal’s jurisdiction in relation to EPAs. The phrases, related matters in s 81 and attorneys under enduring documents in s 82 of the GAA all, on their face, refer to and are limited to those matters contained in Part 2 of Chapter 6 of the powers invested in the Supreme Court by that chapter.
Further, s 106(1), the compensation power, appears only in the PAA and contains, within s 106(7), a reference to a court, not the Tribunal. The section also appears in a part of the legislation (Chapter 5 Part 6) where it is immediately followed, in s 107, by a clear direction that applications for compensation for loss of benefit to an estate arising from an EPA must be made to the Supreme Court (s 107(2)).
In short, a construction of s 109A of the PAA which attempts to invest the Tribunal with the same powers as the Supreme Court is contradicted by other provisions which are intended to define, but also to limit, the Tribunal’s powers; and, in context, s 109A does not appear to have been intended to enlarge the Tribunal’s jurisdiction so that it exactly matches that of the Supreme Court.
There are other indications that this interpretation accords with the intention of the legislation. Section 107 of the PAA, mentioned earlier, limits applications for compensation involving estate matters to the Supreme Court. Section 60 of the GAA is to similar effect.
In the case of guardians or administrators the GAA does, however, grant both the court and the tribunal jurisdiction power to award compensation for losses caused by the appointee’s failure to comply with the Act in the exercise of a power: s 59 – even if the adult has died.
While, in light of the Supreme Court’s traditional hold upon jurisdiction touching the estates of deceased persons, this might at first blush be thought to be inconsistent with a statutory intention to deny the tribunal similar jurisdiction in respect of EPAs it rather serves, I think, to highlight another matter that is salient to the process of analysing these Acts: that it would have been easy for the drafter and the legislature to include, in the PAA, a similar provision to s 59 of the GAA – if that was what was intended, and desired. The absence of a similar, clear provision concerning QCAT’s powers vis a vis attorneys in the PAA serves, then, as something which reinforces rather than detracts from the analysis I prefer.
It is also germane that s 105 of the PAA allows the court, alone, to relieve an attorney from liability if the court considers the attorney has acted honestly and reasonably and ought fairly to be excused. If the term enduring documents is given a wide interpretation, to the extent that it includes the power to award compensation, another uncertainty arises because there is no similar power reposed in QCAT under the GAA to relieve a guardian or administrator from liability of that kind. Indeed, that power under the GAA is also invested, solely, in the court.[13]
[13] Guardianship and Administration Act 2000, s 58.
The GAA essentially grants QCAT exclusive jurisdiction in most matters relating to substituted decision makers appointed by the Tribunal. There are certain matters where the Supreme Court also has jurisdiction but, for the most part, it is the Tribunal which is the specialist body set up to deal with guardians and administrators, and related matters.
Under the PAA the tribunal’s powers are limited to those contained in Chapter 6 – concerning, generally, issues of capacity, validity, amendment and revocation. The compensation power appears in a different Chapter and, on its face, is limited to the court.
While the meaning and effect of the legislation is, with respect, open to debate there is no clear indication in either Act suggesting an intention to grant the Tribunal wider, if concurrent, power in relation to attorneys than exists under its own legislation in relation to guardians and administrators.[14] The consequence is that the words enduring documents in s 109A should be narrowly construed, as should other statutory provisions referring to related matters and to attorneys under enduring documents.
[14] Guardianship and Administration Act 2000.
A construction of the PAA which extended the tribunal’s powers beyond Chapter 6 would, also, give QCAT powers it does not have under the GAA.
In combination, these factors are persuasive that the compensation power was not intended, by the legislature, to be extended to the tribunal.
It is unnecessary, with respect, to found this conclusion in a way which reflects upon the decision in LPJ. On the analysis set out above, the Tribunal’s lack of jurisdiction in compensation matters arising under EPAs does not necessarily stem, however, from the fact of revocation either by death, or the act of revocation.
The question that is posed under s 117 of the QCAT Act – whether the Tribunal has jurisdiction to award compensation under s 106 of the PAA – should be answered in the negative.
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