Rayner & Anor v Trabme Pty Ltd t/as Elders Redcliffe

[2013] QCATA 12

CITATION: RSD and Ors [2013] QCATA 12

PARTIES:	RSD
DEC
DIF

APPLICATION NUMBER:   APL263-12

MATTER TYPE: Appeals

HEARING DATE: 10 January 2013

HEARD AT: Brisbane

DECISION OF: Richard Oliver, Senior Member
Professor Adrian Ashman, Member

DELIVERED ON: 10 January 2013

DELIVERED AT: Brisbane

ORDERS MADE:     1.    Application for leave to appeal is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – where the Tribunal issued an order that the presumption of capacity in regard to DIF is not rebutted – where the applications for the appointment of an administrator and guardian and interim order are dismissed – where an appeal is lodged against these decisions

Queensland Civil and Administrative Tribunal Act 2009, ss 5, 7

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

1. It is not uncommon for the Tribunal to consider matters in its guardianship jurisdiction that have their origin in disputes among family members.  In the present case, the dispute has arisen because DIF sold a half-share in the family home to her grandson CD providing him with half ownership of the property as a joint tenant.  DIF’s son DC and his wife RD applied to the Tribunal in March 2012 seeking the appointment of the Public Trustee of Queensland as administrator and the Adult Guardian as guardian for DIF.

2. As a result of considerable differences of opinion as to whether DIF had decision-making capacity, the Tribunal issued directions late in March 2012 requiring the applicants to file written statements of evidence and submission about DIF’s capacity to make decisions.  On 15 June 2012, in a hearing of the matter on the papers, the Tribunal determined that the presumption that DIF has capacity to make decisions for herself could not be rebutted and consequently the Tribunal dismissed the applications for the appointments and also for an interim order.

The bases of appeal

1. RD and DC lodged an application for leave to appeal or appeal on 27 July 2012 on the grounds that the Tribunal decision lacked “analytical assessment in mixed fact and errors of law.”

1. Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief.  Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error?

1. In summary, the RD/DC application is based upon the view that the Tribunal came to a decision for which it had no evidence.  Strong themes within the submissions accompanying the application are DIF’s decision to sell the half share of her property to her grandson; DIF is clinically depressed; and she is subject to elder abuse perpetrated against her by daughter CL and grandson CD.

2. In those various submissions, RD and DC challenge DIF’s ability to execute a sale giving joint tenancy to CD.  They assert that DIF’s medical condition places her in jeopardy of faulty decision-making and that she has not been provided with proper treatment.  They assert that the Tribunal failed to consider the weight of evidence from long-term relatives and friends who assert DIF’s susceptibility to suggestion from CL.  They question the veracity of the medical reports by a doctor who is not a specialist, and who has failed to refer DIF for a psychological assessment.  There are also issues raised about property held or sold since the death of DIF’s husband.

3. Through her legal representative, DIF has lodged a statement in response to the appeal application.  In brief, DIF denies the various allegations made in the RD/DC application.

1. Findings of fact by a tribunal will not usually be disturbed on appeal if the facts inferred by the tribunal, upon which the finding is based, are capable of supporting its conclusions, and there is evidence supporting any inferences underlining it.[1]  In this case, the learned member prepared and had written reasons for his decision distributed.

   [1]Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125-126.

1. In determining the application for leave to appeal and appeal, we have read the learned member’s reasons for his decision and have examined the documents provided to the Tribunal in advance of that hearing.  The learned member took note of the submissions from the parties who provided them.  Nothing in the material before the learned member or produced in this application for leave to appeal suggests that the Tribunal erred as RD and DC contend.

Matters relating to DIF’s decision-making capacity

1. Perusal of the evidence contained in the Tribunal’s file provides support for DIF’s decision-making capacity.  In a letter from Dr MM, she writes, “[DIF] is certainly capable of making her own decisions.  She does have the mental capacity to enter into a new Last Will and Testament.  Her MMSE score is 30/30, as it was also on 3.2.2010.”  Dr MM states that DIF has been a patient of her practice for 54 years and she has been associated with DIF and her deceased husbands, C and C, since about 1997.  In a health professional’s report dated 7 March 2012, Dr MM notes that DIF is of sound mind, can fully make her own decisions, she is able to make her own choices, and is not influenced positively or negatively by any specific person or persons.

2. DIF filed a statement through her legal representative on 27 April 2012.  In that document, she cogently and logically addresses the allegations made by the applicants who brought the original application to the Tribunal.  That document outlines the tensions that have existed in her family over many years.  DIF clearly describes the reasons for her decision to sell the half share in the family home to her grandson.

3. DIF also executed an Enduring Power of Attorney on 8 April 2011 appointing CL as her attorney for financial and personal/health matters and in the event that CL is unable or unwilling to act, then WA is appointed for those duties.  The witness to this document provided a written statement to the Tribunal attesting to DIF’s understanding of the nature and effects of executing the enduring document.

Conclusion

1. In his written reasons, the learned member notes his consideration of the various documents held on the Tribunal file and the disagreements within the family concerning DIF’s decision-making capabilities that are reflected within them.

2. He based his decision upon the presumption of capacity contained in s 7 of the Guardianship and Administration Act 2000 and the lack of evidence presented to challenge this presumption and has given evidential weight to the medical reports by a practitioner who has known DIF for many years.

3. Notably, at [40] in the learned member’s decision, he states, “the Tribunal needs some more independent evidence from the applicants before it would proceed with a hearing.  It is not sufficient for the applicants to make a range of unsubstantiated statements.  They have not produced any independent evidence that DIF is or has been unduly influenced in relation to that particular transaction with appears to be front and centre of this application.”

4. In their application for leave to appeal and to appeal, the applicants provide no additional evidence to substantiate their vigorously made allegations that DIF lacks decision-making capabilities.  This is despite the learned member clearly making this point in his reasons.

5. Of importance in this matter is Acknowledgements within the Act under s 5(b) that an adult has a right to make decisions including decisions with which others might not agree. It is apparent from the applicants’ various submissions that they disagree with DIF’s decision to sell a share of her property. This does not alone constitute evidence of her lack of decision-making capabilities especially as DIF was able to explain her decision cogently and logically in her submission to the Tribunal.

6. There is no additional evidence presented in the application for leave to appeal or to appeal that draws into question the learned member’s decision, either by way of an error in fact or error in law.

7. Having regard to the discussion set out above, the application for leave to appeal the decision of the Tribunal made on 15 June 2012 is dismissed.