RAG v HDG

Case [2022] QCATA 79

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

RAG v HDG & Ors [2022] QCATA 79
PARTIES: RAG

(applicant/appellant)

v
HDG
PG
Public guardian
The public trustee of queensland

(respondent)

APPLICATION NO:

APL122-20

ORIGINATING APPLICATION NOS:

GAA3476-19
GAA6945-19
GAA1609-20

MATTER TYPE:

Appeals

DELIVERED ON:

23 June 2022

HEARING DATE:

16 July 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1.       The appeal is allowed.

2.       Leave to appeal is refused.

3.       Order 9 of the Tribunal’s decision dated 25 March 2020 is set aside.

CATCHWORDS:

APPEAL – APPEAL AND NEW TRIAL – GUARDIANSHIP AND ADMINISTRATION – where tribunal determining an application for appointment of an administrator – where transaction transferring money to  an  attorney – where the Tribunal below directed the attorney to pay a sum of money to the adult – - whether the Tribunal had an application before it about the transaction – whether tribunal  observed the rules of natural justice– whether tribunal gave adequate reasons for its decision payment of compensation

Guardianship and Administration Act 2009 (Qld) (‘GA Act’) s 11B, s 101, s 103(1)(b), s 103(1)(b) (c), s 119(d), 138AA(2), s 250, s 138, sch 2 s 1, sch 2 s 1, sch 4 (definition of ‘matter’).

Powers of Attorney Act 1998 (Qld) (‘POA Act’) s 34, s 65, s 73, s 87, 106, s 110, s 109A, s 118

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 (‘QCAT Act’) s 28, s 142(3)(b), s 146.

Fehily v Atkinson [2016] EWHC 3069

Hanna v Raoul (2018) NSWCA 201

Kioa v West [1985] 159 CLR 550

MG & anor v The Public Guardian & anor [2021] QCATA 89

Mistero Pty Ltd v Cann [2017] QCATA 56

Partington & Anor v Urquhart (No 2) [2018] QCATA 120

Harrison v Meehan [2017] QCA 315

Pickering v McArthur [2005] QCA 294

Re BKD [2013] QCAT 422

Re Caldwell [1999] QSC 182

Re KAD [2012] QCAT 601
Re WFM [2006] QGAAT 54

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Re WWR [2018] QCAT 463

APPEARANCES & REPRESENTATION:

Applicant/appellant:

Self-represented.

HDG:

No attendance.

PG:

Self-represented.

Public Guardian:

No attendance.

The Public Trustee of Queensland:

Nash Te Ua, regional manager, The Public Trustee of Queensland

REASONS FOR DECISION

  1. RAG was appointed by his mother, HDG, as an attorney for financial matters pursuant to a general power of attorney made in NSW on 29 October 2009. He was appointed jointly with HDG’s husband. The power of attorney was expressed to be given with the intention that it would continue to be effective if HDG lost ‘mental capacity’ after its execution. Following the death of HDG’s husband in August 2015, RAG was the sole attorney. HDG also appointed RAG as enduring guardian for personal matters by a separate document on 20 November 2015.  

  2. On 29 March 2019, PG, another son of HDG, filed applications for appointment of a guardian and administrator for HDG under the Guardianship and Administration Act 2000 (Qld) (‘GA Act’). It appears the applications were largely motivated…

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Details
AGLC
RAG v HDG [2022] QCATA 79
Case
[2022] QCATA 79
Decision Date

CaseChat Overview and Summary

The case of RAG v HDG involved an appeal against a decision of the Queensland Civil and Administrative Tribunal (QCAT) regarding the appointment of an administrator for an individual, HDG. The dispute centred around a transaction transferring a significant sum of money to an attorney, which the tribunal directed the attorney to repay to HDG. The appeal questioned whether the tribunal had jurisdiction over the transaction, whether it observed natural justice, and whether it provided adequate reasons for its decision.

The legal issues the court had to address included whether the tribunal had the authority to direct the repayment of the money transferred to the attorney, whether the tribunal adhered to the rules of natural justice, and whether the tribunal provided sufficient reasons for its decision. Additionally, the court examined whether the tribunal had adequately considered the relevant statutes, particularly the Powers of Attorney Act 1998 (Qld) and the Guardianship and Administration Act 2000 (Qld).

In its reasoning, the court highlighted that the tribunal's decision contained fundamental errors of law. The tribunal incorrectly assumed it had jurisdiction over the transaction and failed to properly apply the principles set out in the relevant statutes. The court found that the tribunal did not observe natural justice, particularly in its handling of misinformation provided by a party to the proceedings. Furthermore, the tribunal's reasons for the decision were inadequate, as it did not sufficiently address the legal principles and statutory requirements applicable to the case.

The court allowed the appeal and set aside the tribunal's order directing the repayment of the money to HDG. It refused leave to appeal, finding that the errors of law were so fundamental that a rehearing would be inappropriate. The court's final order was to set aside the specific order made by the tribunal regarding the repayment of the money.

Orders

Orders of the court

1. The appeal is allowed.

2. Leave to appeal is refused.

3. Order 9 of the Tribunal’s decision dated 25 March 2020 is set aside.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the unusual circumstances of this case, it is convenient to consider first the alleged errors of law. I say unusual because ordinarily if questions of law, as well as questions of fact and mixed fact and law are raised on appeal and leave to appeal should be granted, it would be appropriate having regard to s 146 and 147 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), to dispose of all issues in the rehearing of the proceeding. That is, if leave is granted, the hearing must proceed by way of rehearing, in the course of which any errors of law can be dealt with. Here the errors of law are so fundamental that proceeding in that manner would be inappropriate for the reasons explained. The Tribunal’s reasons for the decision The Tribunal confirms applications for the appointment of a guardian and administrator were made by PG, and at paragraph [5] refers to PG seeking repayment of the $450,000 to HDG.[7] It explains that it determined the guardianship application on 17 June 2019, but adjourned the administration application with directions requiring the filing of further documentation.[8] It records ‘misinformation’ having been provided to the Tribunal on 17 June 2019 by Ms Miller, based on information provided to her (Ms Miller) by HDG and JD, HDG’s Sydney solicitor. [9] [7]HDG [2020] QCAT 106 [2],[5] (‘HDG’).[8]Ibid [8].[9]Ibid [14]-[15]. The learned Member recites s 34 of the Powers of Attorney Act 1998 (Qld) (‘POA Act’). [10] Section 34 provides, in effect, that in respect of an enduring document made in another State complying with its (that is, the relevant State’s) requirements, then to the extent the powers given could be validly given by an Enduring Power of Attorney (‘EPA’) under the POA Act, the EPA must be treated as if it were an EPA made under and in compliance with the POA Act. The Tribunal refers to s 65(c) of the POA Act as extending the obligations of an attorney under the POA Act to a power of attorney made otherwise than under the Act, including requiring compliance with the General Principles and Health Care Principle; acting diligently and avoiding conflict transactions.[11] It refers also to the presumption of undue influence provided for in s 87 of the POA Act, where an attorney enters into a transaction with the principal.[12] The Tribunal states that the attorney’s compliance with these obligations needs to be considered as a ‘starting point’.[13] Further, it states that the extent to which the attorney is authorised to enter the transaction by the enduring document must be considered, and if the attorney was non-compliant, the Tribunal may consider appointing, relevantly, an administrator.[14][10]Ibid [25].[11]Ibid [26].[12]Ibid. [13]Ibid [27].[14]Ibid. The Tribunal goes on to recite s 12 of the GA Act, setting out the issues for determination in an application for appointment of a guardian or an administrator, and s 15(1), in relation to prescribed matters for consideration in deciding whether a person is appropriate for appointment, including their likely compliance with the General Principles.[15][15]Ibid [28-29],

Ratio Decidendi

Legal Principle Established

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