Re At
[2010] QCATA 14
•6 May 2010
| CITATION: | Re AT [2010] QCATA 14 |
| PARTIES: | A T (Applicant/Appellant) |
| v | |
| The Adult Guardian (Respondent) |
APPLICATION NUMBER: APL021 -10 / GAA6160-09
| MATTER TYPE: | Appeal |
HEARING DATE: 23 April 2010
HEARD AT: Brisbane
| DECISION OF: | Justice Alan Wilson, President Clare Endicott, Senior Member |
DELIVERED ON: 6 May 2010
DELIVERED AT: Brisbane
ORDERS MADE: Appeal allowed
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – APPOINTMENT OF ADULT GUARDIAN – PROCEDURAL FAIRNESS – where applicant applied for herself and another family member to be appointed as administrators – where applicant sought to withdraw application prior to scheduled hearing date – where Tribunal proceed with hearing and appointed the Adult Guardian as guardian for decisions about accommodation and provision of services – where notice to applicant that hearing would proceed did not advise that Adult Guardian may be appointed – whether failure to advise that appointment of the Adult Guardian was a possible outcome was a denial of procedural fairness GUARDIANSHIP AND ADMINISTRATION – NOTICE TO PARTIES - Guardianship and Administration Act 2000, s 118 – MEANING AND EFFECT – where failure to provide notice does not invalidate hearing or decision of Tribunal - whether effect of s 118 modified by obligations of the Tribunal to ensure that each party to a proceeding understands the practices and procedures Guardianship and Administration Act 2000, ss 118, 122 Queensland Civil and Administrative Tribunal Act 2009, ss 29, 142 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | A T and S W, daughters of D N |
| RESPONDENT: | Ms Younger, Senior Legal Officer, Office of the Adult Guardian |
REASONS FOR DECISION
D N is an adult male born 31 March 1935. In May 2009 one of his daughters applied to the Guardianship and Administration Tribunal (GAAT) for her appointment with another family member, as his administrator. In November last year she sought a hearing date and on 15 January 2010 QCAT gave notice to all parties that a hearing would proceed on 5 February for the appointment of both an administrator, and a guardian.
The daughter who had applied, A T, received notice of that hearing. On 20 January 2010 she wrote seeking an adjournment. On 28 January 2010, as a file note indicates, she was told by a QCAT officer that the hearing would nevertheless be proceeding. The same day she wrote, again, seeking that QCAT ‘cancel court’.
Another daughter, S W, also telephoned QCAT on 3 February and was told the hearing would proceed. On 5 February A T wrote again advising that she was withdrawing her ‘claim’ (her letter of that date is wrongly dated 6 February).
Notwithstanding these communications the hearing proceeded on 5 February and the Tribunal appointed the Adult Guardian as guardian for D N for decisions about accommodation, and the provision of services. The appointment was made current for 12 months. An enduring power of attorney held by S W could not, the order said, be thereafter acted upon.
A T immediately protested in writing and filed an application for reopening in Form 43, an application for a stay, an application for an interim order or injunction, and application for leave to appeal, or appeal.
To further complicate the matter the Adult Guardian filed an application for an interim order or injunction on 9 March 2010. On 10 March that office filed a further application for review, seeking that the appointment of the Adult Guardian be extended to include health care and contact, and for the appointment of the Public Trustee for financial matters.
On 12 March 2010 A T’s application for a stay was heard and it was ordered that the order of 5 February be stayed until a decision was made in her appeal. The Adult Guardian’s other applications were mentioned, and adjourned to a date to be fixed. Both A T and the Adult Guardian were directed to file and serve statements of evidence concerning the appeal, according to a timetable.
Although the order of 12 March 2010 refers to a hearing of the appeal, leave to appeal was necessary unless the appeal was brought upon a question of law: Queensland Civil and Administrative Tribunal Act 2009, s142 (QCAT Act). For reasons which follow, her appeal raised a question of law and leave was not necessary.
A T’s complaint is, in essence, that she was denied procedural fairness because the hearing on 5 February 2010 wrongfully went ahead in circumstances were she was the original applicant; before 5 February she told QCAT that she did not wish to proceed with the application; and, she was not informed that the hearing might nevertheless proceed and that some person or institution other than her might be ordered to take responsibility for the management of some elements of her fathers affairs.
The notice of hearing did not warn her of that possibility. Although a file note of 28 January 2010 shows that she was told by a QCAT officer that the hearing would be proceeding, the note does not suggest, again, that some outcome other than what was sought in her original applications – namely, her own appointment as guardian and administrator – might be ordered. Although other family members were contacted by telephone during the hearing on 5 February, A T was not.
These circumstances were considered by the Tribunal in the published reasons for its decision of 5 February 2010. The Reasons record that as late as the date of the hearing itself QCAT received a fax from A T ‘…confirming that she was withdrawing her application’. The reasons record:
12. On the basis of this information and in the absence of the applicant the Tribunal did not grant leave under s 122 of the Act to the applicant to withdraw her application.
The reference is to s 122 of the Guardianship and Administration Act 2000 (GAA) which requires that, if the Tribunal does give leave to an applicant to withdraw an application under s 46 of the QCAT Act, it must give notice of the withdrawal to the parties to the proceeding. Section 46 of the QCAT Act allows a party to withdraw an application, but only with the Tribunal’s leave. It does not appear, again, that A T was ever warned that an order of that kind was open to the Tribunal.
The procedure for applications in the jurisdiction is set out in Chapter 7, Part 2 of the GAA. The Tribunal must give notice of any hearing to a range of persons who would, here, include A T (s 118(1)(a)). Section 118(7) provides, however, that a failure to give notice to any of those persons ‘… does not affect the validity of the hearing or the tribunal’s decision about an application’. It may be assumed it was this provision that lay behind the tribunal’s decision to proceed despite A T’s requests.
Proceedings in this jurisdiction will from time to time involve elements of urgency. Here, as the tribunal found, the adult to whom the proceedings related was being cared for at home but there was concern about the quality of the care being provided there and a view, expressed by professional witnesses, that ‘care in a residential setting’ might be more appropriate. While the day to day care of an adult with the problems suggested by the evidence here, and the circumstances in which that care is being provided, are important matters it cannot be said that any evidence suggested there was any apparent risk of such pressing urgency that a postponement of the hearing for a short time would have been inappropriate.
Section 118 of the GAA must also, now, be read in light of s 29 of the QCAT Act which requires this tribunal to ensure that each party to a proceeding understands QCAT’s practices and procedures. As already observed, it is not apparent that the party whose application began the process leading to the hearing on 5 February was provided with information giving her any information about the consequences which ensued.
As Lord Denning observed, if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met[1]. Relevantly, an important requirement of notice of proceedings is that it must advise the recipient of the subject matter and the potential consequences of the proposed decision. The notice need not necessarily draw attention to every possible detriment[2] but a failure to alert an applicant, who had herself instigated proceedings before the Tribunal, that those proceedings might (notwithstanding her plainly expressed desire not to pursue them) nevertheless lead to orders of a kind she had not sought and may not have contemplated runs contrary to these principles. A denial of procedural fairness is an error of law[3].
[1] Kanda v Government of Malaya [1962] AC 322 at 337(P C)
[2] Powick v Commissioner of Corrective Services [1996] 87 A Crim R 565
[3] Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82
The appeal should, for these reasons, be allowed.
It remains to determine what ought to happen in A T’s original application, and those filed by the Adult Guardian after 5 February. We will hear further submissions about that.
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