Re TG
[2011] QCATA 97
•12 April 2010
| CITATION: | Re TG [2011] QCATA 97 |
| PARTIES: | TG |
| MATTER NUMBER: | APL270-10 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President Susan Gardiner, Member |
| DELIVERED ON: | 12 April 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Application for leave to appeal on mixed grounds of fact and law refused; and, 2. Appeal on question of law refused. |
| CATCHWORDS : | APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where TG sustained a traumatic head injury in 2009 – where QCAT dismissed an application to appoint TG’s mother TM as guardian and administrator – where TM 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 18, 130 Kioa v West (1985) 159 CLR 550 |
REASONS FOR DECISION
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:
TG sustained a traumatic head injury in September 2009. He requires ongoing support with complex personal and financial decisions. His mother TM applied to QCAT to be appointed as guardian and administrator for her son under the Guardianship and Administration Act 2000 (the GAA Act).
On 27 August 2010 QCAT dismissed the guardianship application, but TG continues to be informally assisted by his mother TM to make all personal decisions.
On the same day the Tribunal did, however, appoint The Public Trustee of Queensland as administrator for TG. At the conclusion of the hearing, the Tribunal gave reasons for both decisions.
TM filed an application to appeal the decision to appoint The Public Trustee. 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: QCAT 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?[1] Is there a reasonable prospect that the applicant will obtain substantive relief?[2] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[3] 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?[4]
[1] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2] Cachia v Grech [2009] NSWCA 232 at [13].
[3] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
In her application TM advanced the following grounds in support of her appeal:
Lack of Procedural Fairness
a) The Tribunal erred by failing to provide information under s 29 of the QCAT Act thereby failing to ensure that TM understood that another party other than herself could be appointed as her son’s administrator;
Errors of Law or Fact
b) The Tribunal erred in appointing The Public Trustee of Queensland as administrator because:
i) It failed to give proper weight to the close and trusting relationship and communication between mother and son, and that TM had her son’s best interests foremost in her consideration and is best placed to know her son’s wishes and views;
ii) It did not make a finding on TM’s competence to perform the functions and exercise the powers of an administrator;
iii) It failed to adequately examine the difficulties encountered by TM that had impeded her then informal management of her son’s financial affairs (for example, lack of information, lack of legal standing preoccupation with TG’s medical treatment);
iv) It failed to apply the General Principles[5] of the GAA Act by not giving any or proper weight to TG’s wishes, the maintenance of existing networks and relationships or applying the least restrictive option.
c) The Tribunal erred in finding the potential compensation claims of TG were very complicated and pointed to the need for an extremely experienced administrator;
d) The Tribunal erred in factual findings concerning Centrelink and the effect that receiving rent will have on TG’s disability support pension.
[5] Contained in GAA Act, sch 1.
The first ground involves, I am prepared to accept, a question of law. Section 29 of the QCAT Act requires the Tribunal to take all necessary steps to ensure a party understands Tribunal practices and procedures; the nature of assertions made in the proceedings, and their legal implications; and, any decision the Tribunal makes.
These matters go to questions of procedural fairness; but, as Mason J (as he then was) observed in Kioa v West,[6] the requirements of procedural fairness must be adjusted to the statutory framework governing the Tribunal in question:
What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group;[7] National Companies and Securities Commission v News Corporation Ltd[8]).
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations …
[6] (1985) 159 CLR 550 at 584-585.
[7] (1969) 122 CLR 546 at 552-3.
[8] (1984) 156 CLR 296 at 311, 319-321.
[10] The QCAT Guardianship jurisdiction is an inquisitorial, not adversarial, jurisdiction.[9] There are no adversarial case management events required prior to the hearing of any application for the appointment of a substitute decision-maker. The requirements of s 29 of the QCAT Act are necessarily undertaken by the Tribunal in the course of the proceeding and, in particular, at the hearing itself.
[9] See, eg, GAA Act, ss 18 and 130.
[11] An examination of the transcript shows that the availability of The Public Trustee of Queensland as a potential appointee to the position of administrator for TG was raised with TG and TM within a few minutes of the hearing commencing. Then throughout the transcript, on numerous occasions, explanations of the hearing process, the roles of an administrator generally and the actions of The Public Trustee of Queensland or TM if either were appointed were specifically addressed directly with TG and TM by the two experienced Members who comprised the Tribunal.
[12] The transcript also reveals that, throughout the hearing, TM maintained her strong desire to be appointed as her son’s administrator. Nothing suggests that TM complained of being hindered (or that she was hindered) in presenting her case for her own appointment by the explanations given during the hearing itself about any potential appointment of The Public Trustee of Queensland.
[13] It is apparent, and I am satisfied, that the original Tribunal took all reasonable steps, in the context of this hearing and the jurisdiction, and the circumstances, in which it took place to satisfy the requirements of s 29.
[14] Turning next to the submissions concerning errors of law and fact, it is a well accepted principle that it is not enough that this Appeal Tribunal might consider that, if it had been in the position of the original Tribunal, it may have made a different order. There must be some error in the basis of the decision. The Tribunal must be shown to have acted on a wrong principle, allowed irrelevant matters or mistakes of fact to guide or affect the decision, or failed to take into account some material consideration.[10]
[10] House v The King (1936) 55 CLR 499.
[15] An examination of the reasons reveals that the matters complained of by TM as errors were, in truth, addressed by the Tribunal in its reasons. It is also apparent from the transcript that TG had clearly expressed his views to the Tribunal during the hearing.
[16] Where the Tribunal’s reasons and TM’s views diverge is about the weight the Tribunal placed on the need for an ‘extremely experienced administrator’ because of the ‘grave difficulties’ the Tribunal saw in TG’s current financial situation. It cannot be said, however, that the conclusion reached by the Tribunal was not reasonably and indeed clearly open to its Members, on the evidence presented to them at the hearing.
[17] This Appeal Tribunal is also satisfied that the original Tribunal applied the relevant General Principles when conducting the hearing of TM’s application, and when delivering its reasons.
[18] 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.
[19] While the Appeal Tribunal accepts (as the Members of the original Tribunal also, plainly, accepted) that TM is motivated by nothing but the best interests of her son there is no basis upon which leave to appeal is warranted; and, the appeal on the basis of a want of procedural fairness must also fail.
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