SMD - [2013] QCAT 350

CITATION:

SMD [2013] QCAT 350

PARTIES:

SMD

APPLICATION NUMBER:

GAA1721-13

MATTER TYPE:

Guardianship and administration matters for adults

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Mr Jim Allen, Acting Senior Member

DELIVERED ON:

10 July 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The Tribunal declares that s59 of the Guardianship and Administration Act 2000 allows a claim for compensation to be made against HB as a former administrator of SMD.

CATCHWORDS:

GUARDIANSHIP AND ADMINSITRATION – whether compensation claim can be made against former administrator

Guardianship and Administration Act 2000 ss 6, 7, 12, 26, 27, 31, 32B, Part 4, 81 and 82.

LPJ [2011] QCAT 177
Public Trustee of Queensland v BN and ors [2011] 666
BH [2011] QCAT 179
BH [2012] QCATA 204

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

SMD has had an administrator appointed for her financial matters since 27 May 2010. Her first administrator, HB, was granted leave to withdraw as administrator by the Tribunal on 22 November 2012. On that date the Public Trustee of Queensland was appointed SMD’s administrator and the Adult Guardian was appointed as her guardian for decisions about accommodation and health care.
The present application has been made by SD, one of SMD’s sons, requesting that the Tribunal make a declaration in the following terms:-
That s59 of the Guardianship and Administration Act 2000, GAA Act, allows a claim for compensation to be made against HB as a former administrator of SMD.
The hearing at which HB was granted leave to withdraw as administrator had been as a result of an application by SD to review the appointment of HB. In his supporting material SD raised issues about the fees charged by HB as administrator and those paid to BDO, the firm of accountants he was associated with, and HB’s actions in regard to two flats SMD owned in the United Kingdom.
The application is in response to concerns raised at the hearing on 22 November 2012 about the effect of the Tribunal’s decision in BH [2012] QCA 179. The learned Member in that case decided that an application could not be made against a former administrator for compensation under s59 of the GAA Act.
The Tribunal made directions that SD file submissions and the active parties, including HB, were to file submissions in reply in regard to the application for a declaration. Submissions were received from SD and HB.
The GAA Act in s59 provides that
(1)a guardian or administrator for an adult (an appointee) may be ordered by the tribunal to compensate the Adult (or, if the adult has died, the adult’s estate) for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power.
(2)Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: SMD [2013] QCAT 350
Case: [2013] QCAT 350
Decision Date

CaseChat Overview and Summary

The case of SMD [2013] QCAT 350 involves a dispute regarding the ability to claim compensation from a former administrator under the Guardianship and Administration Act 2000. The applicant, SD, is one of SMD's sons, and he seeks a declaration that section 59 of the Act allows a claim for compensation to be made against HB, a former administrator of SMD. The matter was determined by the Tribunal on the papers, with submissions received from SD and HB. The central legal issue was whether section 59 of the Guardianship and Administration Act 2000 permits a claim for compensation against a former administrator, such as HB.

The Tribunal examined the language and purpose of the Act, finding that the provisions regarding compensation for losses caused by an administrator's failure to comply with the Act apply even if the administrator is no longer in office. The Tribunal emphasised the purpose of the Act, which is to balance the rights of an adult with impaired capacity to autonomy and their right to adequate support for decision-making. The Tribunal concluded that there was no logical reason why the compensation provisions should not apply to former administrators, as they do in cases where the administrator or adult has died. Consequently, the Tribunal declared that section 59 of the Guardianship and Administration Act 2000 allows a claim for compensation to be made against HB as a former administrator of SMD.

No further orders were made in the decision.

Orders