Re DXH

[2015] QCAT 551

CITATION: Re DXH [2015] QCAT 551

PARTIES: DXH
(Adult)

APPLICATION NUMBER: GAA7204-15; GAA7205-15

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: 14 October 2015

HEARD AT: Brisbane

DECISION OF: Member Howard

DELIVERED ON: 14 October 2015

DELIVERED AT: Brisbane

ORDERS MADE:

LIMITATION ORDERS

1. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 the contents of document H001 namely an email from Kylie McGrath, Advocate, Queensland Aged and Disability Advocacy to the Tribunal dated 19 July 2015 is confidential and must not be disclosed to any person who inspects the file in the future.

CATCHWORDS:

GUARDIANSHIP- LIMITATION ORDERS-non-publication order- where application for appointment of guardian and administrator-where allegations made by adult with impaired capacity about misuse of funds by attorneys- where allegations not supported by the evidence at hearing of the application-where attorney is a professional person- where concerns for damage to reputation- whether serious risk of harm

Guardianship and Administration Act 2000 (Qld), s 101, s 109, ch 7
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 164, s 230

APPEARANCES:

DXH (Adult)
Rebecca Anderson, (Advocate, Queensland Aged and Disability Advocacy, representing adult)
FMK
CEK
DDP

REASONS FOR DECISION

1. I heard an application today for the appointment of a guardian and an administrator for DXH. At the conclusion of the hearing I made orders revoking an Enduring Power of Attorney given by DXH in September 2010 to her daughter, CR, and son-in-law, CEK, for all personal and financial matters. I appointed as administrators FMK and DDP, another daughter and son of DXH. The guardianship application was dismissed. I gave oral reasons for decision in respect of my orders.

2. At the conclusion of the hearing, CEK made an oral application for a confidentiality order in respect of a document on the Tribunal’s file, namely an email from Kylie McGrath, Advocate, Queensland Aged and Disability Advocacy (QADA) to the Tribunal dated 19 July 2015. It is document numbered H001 on the Tribunal’s file. He sought orders prohibiting disclosure or publication of the document to any person inspecting the Tribunal file in the future. All of the parties at the hearing today have seen the document. The email sets out allegations about misuse of DXH’s monies and the reasons for it by the former attorneys, which were not supported by the evidence. The allegations are primarily directed towards CR. However, DXH’s son-in-law is a professional person who is concerned for his reputation if the document was generally available to persons inspecting the Tribunal file in the future.

3. Ms Anderson, the advocate from QADA representing DXH at the hearing, does not oppose the making of a confidentiality order in respect of that document. The newly appointed administrators, FMK and DDP do not oppose it. Indeed, DDP said that he considered the document should be ‘stricken’ from the file.

4. The Tribunal is a court of record.[1] Generally, any person may inspect and obtain a copy of documents filed in the Tribunal, subject in some cases to payment of a fee.[2] This right to inspect and copy may be displaced by some form of confidentiality or non-publication order.[3] A confidentiality order, which withholds a document from an active party or other person, may be made if it is necessary to avoid serious harm or injustice to a person.[4]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 164.

   [2]Ibid, s 230.

   [3]Ibid, s 230(4). The provisions in the QCAT Act about non-publication orders are modified by Chapter 7 of the Guardianship and Administration Act 2000 (Qld) (see especially s 101): QCAT Act, s 6, s 7.

   [4]Guardianship and Administration Act 2000 (Qld) s 109.

5. The application for the appointment of a guardian and an administrator in respect of which the email H001 was filed has been heard and decided today. For the hearing, all of the parties had access to the email, and knowledge of its contents.

6. CEK is a professional person. Reputation is important for professionals in generating work. Given the nature of the allegations, it is reasonable to infer that CEK’s reputation could be seriously harmed if persons, other than those at the hearing today, had access to the document in the future. This could ultimately result in significant professional and financial harm (if it curtailed work received by him). 

7. I am satisfied, given the applicant former attorney’s professional status, that to avoid serious risk of harm to his reputation and the generation by him of professional work and income, that it is necessary for the document to be subject to a confidentiality order.

8. Accordingly, I make orders that document number H001 is confidential and must not be disclosed by any person inspecting the file in the future.