Re JW
[2011] QCATA 184
•8 July 2011
| CITATION: | Re JW [2011] QCATA 184 |
| APPLICATION CONCERNING: | JW |
| APPLICATION NUMBER: | APL264-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Kingham Deputy President Susan Gardiner, Member |
| DELIVERED ON: | 8 July 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for leave to appeal on mixed law and questions of fact is refused; and, 2. The appeal on a question of law is refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where JW has a permanent disability – where QCAT on review removes The Public Trustee of Queensland and appoints a private administrator - where another party seeks leave to appeal that decision on the grounds that there was a lack of procedural fairness, and the Tribunal made errors of law and fact at first instance – whether leave to appeal should be granted Guardianship and Administration Act 2000, ss 6, 11A, 14, 15, 18, 81,130 Cachia v Grech [2009] NSWCA 232 |
REASONS FOR DECISION
Deputy President:
I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes.
Member Susan Gardiner:
JW has a permanent disability arising from a diagnosis of Wernicke’s Encephalopathy or Korsakoff’s syndrome. On 31 August 2009, this Tribunal appointed the Adult Guardian as guardian for JW for decisions about some personal matters (accommodation, with whom JW had contact and/or visits, health care and the provision of services) and The Public Trustee of Queensland as administrator for all financial matters. Both appointments were for five years.
At a hearing on 29 July 2010, JW’s fiancée SI applied for directions and to review the appointments of the Adult Guardian and The Public Trustee of Queensland.
At that hearing, the Tribunal revoked the guardianship application and changed the appointment of an administrator by removing The Public Trustee of Queensland and appointing a private administrator BS as administrator for JW. The Tribunal also made directions for the provision of information by The Public Trustee of Queensland and previous private administrators to the new administrator.
SI appealed. Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought[1].
[1] Queensland Civil and Administrative Tribunal Act s 142.
The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver
SI’s appeal specifies the following grounds:
Incorrect finding of fact (that The Public Trustee of Queensland was not incompetent)
Balance of probabilities test not adequately applied to previous clause one; and
Tribunal’s failure to answer the contravening of the Act, breaches, charges made against the respondents.
Ground i. Incorrect finding of fact (that The Public Trustee of Queensland was not incompetent)
After setting out a detailed explanation as to why SI commenced the original applications (the decision from which he is now appealing) in support of this ground of appeal, SI submits that the view of the Tribunal in its reasons that the Tribunal did not have to make a decision as to whether The Public Trustee of Queensland was incompetent during the term of the appointment cannot be sustained and in SI’s submission, is an error of law and fact. SI supports this by saying that that he believed there was an abundance of evidence available to the Tribunal of such incompetence.
SI further alleges that in not making this finding, the Tribunal was
“always intending to make a quickfire decision, when one looks at the afternoon time slot we were pushed into (from 1.30 to 5.00pm) which was hardly sufficient time to get fully into matters…”
[10] I am prepared to accept that second submission involves a question of law. Section 28 of the QCAT Act requires the Tribunal to act fairly and according to the substantial merits of the case. This section also provides that in conducting a proceeding, the Tribunal must observe the rules of natural justice; is not bound by the rules of evidence; may inform itself in any way it considers appropriate; must act with as little informality and technicality and with as much speed as a proper considerations of matters permit; and must ensure that as far as practicable, all relevant material is disclosed to the Tribunal to enable it to decide the proceedings with all the relevant facts.
[11] As this Appeals Tribunal has commented in the past[6], these matters go to questions of procedural fairness; but, as Mason J (as he then was) observed in Kioa v West,[7] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question.
[6] See Re TG [2011] QCATA 097
[7] (1985) 159 CLR 550 at 584-585.
[12] The QCAT Guardianship jurisdiction is an inquisitorial, not adversarial, jurisdiction[8]. The Tribunal’s functions include appointing administrators if necessary, reviewing appointments and giving directions where necessary[9]. The primary focus of the Tribunal is the adult with impaired capacity[10] and the purpose is to strike an appropriate balance between the right of the adult to the greatest possible degree of autonomy in decision making and the adult’s right to adequate and appropriate support for decision making[11].
[8] See, eg, Guardianship and Administration Act 2000 ss 18 and 130.
[9] Ibid s 81(1) (b), (c) and and (d)
[10] Ibid s 11A
[11] Ibid s 6
[13] The requirements of s 28 of the QCAT Act are necessarily undertaken by the Tribunal in the course of the proceeding and, in particular, at the hearing itself. An examination of the transcript of the hearing simply does not support that contention that SI was denied procedural fairness. The transcript shows that the Tribunal gave all issues it was required to address under sections 31 (the review of the existing appointments) and s138 (directions) full ventilation, by reference to the written materials, oral evidence and submissions by the parties present. SI indicated to the Tribunal in the opening stages of the hearing that he had asked another party at the hearing RT to “give me a bit of a helping hand with the smart questions that get thrown at me”.
[14] It is clear from the transcript that RT answered many of the Tribunal’s questions and made nearly all of the submissions on his behalf and SI as, in all matters, these two parties were in agreement. However, SI was given every opportunity by the very experienced Tribunal members to speak on his own behalf if he so wished and on some matters he clearly did.
[15] The hearing concluded at 5.00pm. The Tribunal indicated that it would need time to consider its decision and offered the parties (because of the lateness of the hour) the option to either wait for the decision or to be connected by telephone on another day to hear the decision. The parties unanimously decided to wait and later the Tribunal delivered its decision.
[16] It is apparent, and I am satisfied, that the original Tribunal took all reasonable steps, in the context of this hearing, the jurisdiction and the circumstances in which it took place to satisfy the requirements of s 28.
[17] SI’s next submission on the issue of the competence of The Public Trustee of Queensland is that the Tribunal made an error by not making a final determination.
[18] SI’s application was a review of the appointment of The Public Trustee of Queensland under s 31 of the Guardianship Act. Section 31 (4) provides two grounds on which an appointee can be removed on review. These are that the Tribunal considers the appointee is no longer competent; or another person is more appropriate. These are alternative grounds. The Act does not require the Tribunal make findings on both grounds.
[19] In this matter, this very experienced Tribunal first indicated, as a preliminary finding, it was not satisfied that there were grounds for finding that The Public Trustee of Queensland was no longer competent to perform the role of administrator. Instead, the Tribunal chose, in giving its reasons for removing The Public Trustee of Queensland and appointing BS, to rely on the second of the two available grounds – another person is more appropriate that current appointee. The reasons for this decision are fully explained by the Tribunal in its oral reasons.
[20] Having made findings on this alternative ground of removal and determining to remove the appointee, in the Tribunal’s view, it was not necessary to make any finally concluded determination on the matter of the competence of The Public Trustee of Queensland in the reasons. This is validly open to the Tribunal as the grounds are expressed in the Act in the alternative.
[21] There is no demonstrated or discernable error in the Tribunal’s decision, and on both submissions, this ground of appeal must fail.
Ground ii. Balance of probabilities test not adequately applied to previous clause one
[22] As a general proposition, it is important to keep in mind when considering evidence that the standard test for weighing and applying the evidence is not one of mathematical or scientific exercise, but based on a reasonable search for the truth in the circumstances of each particular case[12].
[12] TNT Management Pty Ltd v Brooks (1979) 23 ALJR 345 at 349-350.
[23] However, based on the failure of SI’s first ground of appeal above, it is not necessary for this Appeal Tribunal to further consider this ground as no final determination of evidence was made nor was necessary on the matter of the competence of The Public Trustee of Queensland.
Ground iii. Tribunal’s failure to answer the contravening of the Act/breaches/charges made against the respondents
[24] SI’s submissions in this appeal do not clearly address this ground. A reading of the whole of SI’s submissions does seem to indicate that this ground also relates to the first ground in this appeal. This is supported by the detailed and lengthy explanation as to why SI commenced the original applications (referred to above) that precedes his submissions in this appeal. SI states his
“original intention for seeking this directions order was to make the originating Administrators (the Adult’s Mother and two sisters) file with the Tribunal and serve on the Appellant SI “a summary of receipts and expenditure for the Adult or more detailed accounts of dealings and transactions for the Adult”… to capture the originating Administrators as “former Administrators … and bring them to justice”
[25] As commented above, the role of the Tribunal is to appoint or review the appointment of administrators. When appointing administrators, the Tribunal must be satisfied that a person is appropriate and competent for appointment[13]. This inquiry is vital because after an appointment for all financial matters, an administrator can do anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised[14].
[13] Guardianship and Administration Act 2000 ss 14 and 15
[14] Ibid s 33(2)
[26] This power rests with the appointed administrator only. Under the full power now vested in BS, she has the power to investigate previous financial dealings by earlier administrators and to take any action required after that investigation. This role is not given to SI. This power rests only with BS. SI’s stated aim in bringing the original directions applications so that accounting could be made to him is misconceived as it is properly the responsibility of an appointed administrator and it is to that person that accounting by previous administrators should be made.
[27] SI’s aim of requiring the provision of details was, in part, satisfied in that directions were made by the Tribunal for all previous administrators to provide full details of specified financial transactions, but the accounting is to the responsible person – the current appointed administrator, not SI. On that basis, this ground of appeal must also fail.
[28] There is no demonstrated or discernable error in the Tribunal’s decision. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage.
[29] While the Appeal Tribunal accepts that SI is motivated by nothing but the best interests of his fiancée, his application must fail. Leave is not required to appeal on the basis of want of procedural fairness, but for the reasons already given, the appeal on that ground is dismissed. The other grounds do not appear to raise errors of law and leave would be required. For the reasons given earlier, leave is refused.
Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578,
580.
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