Smith v The Public Trustee of Queensland
[2014] QCATA 351
•23 December 2014
| CITATION: | Smith v The Public Trustee of Queensland [2014] QCATA 351 |
| PARTIES: | Alice Smith (Appellant) |
| v | |
| The Public Trustee of Queensland (Respondent) |
| APPLICATION NUMBER: | APL273-14 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Acting Senior Member Endicott |
| DELIVERED ON: | 23 December 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is refused. 2. The appeal in terms of ground six is dismissed. 3. No order as to costs. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL – where appointment made of an administrator for a single legal matter – where legal matter was to investigate an adult’s entitlement to seek further provision from an estate – whether any reasonable argument could be established that the decision was attended by error Queensland Civil and Administrative Tribunal Act 2009 s 142(3) |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
Pseudonyms are used throughout these published reasons.
Carmel Brown has an intellectual impairment. It has been determined that she has impaired decision-making capacity for decisions about her financial affairs. Her sister, Alice Smith, was appointed the administrator for Ms Brown for all financial matters on 4 August 2010.
The tribunal commenced a review of the appointment of Ms Smith as the administrator for Ms Brown at the end of 2013. Information had been provided to the tribunal that the administrator had not taken any steps to determine whether a Family Provision Application should have been made to the Court to seek a greater provision from the estate of Ms Brown’s mother for Ms Brown.
Ms Smith was also one of the executors of the estate of her late mother. The executors had obtained legal advice in their capacity as executors about the costs of a Family Provision Application. Ms Smith, when acting in her role as an administrator, had access to that advice. She did not seek separate legal advice about the issue in her capacity as administrator. No Family Provision Application was made to the court on behalf of Ms Brown.
The tribunal had also initiated an application for compensation. A hearing of that application, as well as a review of the appointment of the guardian for Ms Brown, was conducted on 4 March 2014. The administration order was changed and Alice Smith and another sister, Phyllis Rountree, were appointed jointly and severally as administrators for Ms Brown for all financial matters.
A decision on the application for compensation was reserved. On 6 May 2014 the tribunal delivered a decision on that remaining application. The tribunal appointed The Public Trustee of Queensland as administrator for the legal matter of investigating Ms Brown’s entitlement to bring a Family Provision claim against the estate of her late mother.
This limited appointment was for a period of one year. The Public Trustee was directed to provide a report to the tribunal by 16 January 2015. Ms Smith was directed to co-operate fully with The Public Trustee and to promptly provide funds to The Public Trustee to undertake the investigation.
Ms Smith does not agree with the decision made on 6 May 2014. She has filed an application in relation to that decision for leave to appeal or appeal. Five grounds of appeal raise questions of mixed law and fact. Under section 142(3) of the QCAT Act, an appeal on a question of mixed law and fact may be made only if the party has obtained leave of the appeal tribunal to appeal. Directions were made on 22 October 2014 that the application for leave to appeal was to be determined on the papers and without an oral hearing.
There was a sixth ground of appeal: namely the orders were ultra vires beyond the scope of the Guardianship and Administration Act 2000. The submissions later filed by Ms Smith make no reference to this sixth ground of appeal. This ground will be discussed at the end of these reasons.
Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
The first ground of appeal states that the claim that Ms Smith had a conflict of interest in being both an executor and an administrator was misleading and inconsistent with the Guardianship and Administration Act 2000. The underlying basis of that ground of appeal appears to be that the tribunal member had concluded that holding both roles simultaneously would give rise to a conflict of interest.
The member did not conclude that Ms Smith had a conflict of interest merely because Ms Smith held both these roles at the same time. The member identified that the relevant issue that he was dealing with was the failure of Ms Smith as administrator to take steps to protect her sister’s rights to bring a Family Provision Application in her late mother’s estate.
This was the context in which the member criticised Ms Smith for not avoiding a conflict between her duty as an administrator and her own interests. He found that Ms Smith was under a clear conflict in those circumstances by failing to take action in her role as administrator. There is no error in such a finding and the first ground of appeal cannot be sustained.
The second ground of appeal states that there is no need for an investigation to be undertaken by The Public Trustee as there is already adequate information available on which to assess the diligence, competence and ethics of Ms Smith. This ground is based on what appears to be a misunderstanding of why The Public Trustee was appointed in the order made on 6 May 2014.
The appointment is for a single legal matter: to investigate Ms Brown’s entitlement to bring a Family Provision Application. While additional directions were made requiring the family to provide specified information to The Public Trustee, the investigation is about ascertaining the existence of any rights of Ms Brown to challenge her late mother’s will and not about the competence of the administrator. No error can be found in the tribunal member appointing The Public Trustee for this limited purpose that is unrelated to any issue about the competence of the administrator. This second ground of appeal cannot be sustained.
The third ground of appeal is curious. It states that Ms Smith and Phyllis Rountree request to be administrators of Ms Brown as they have cared for her for 50 years and used their own money and did not claim for expenditure under the Guardianship and Administration Act 2000.The orders made on 4 March 2014 had in fact appointed Ms Smith and Ms Rountree as the administrators for Ms Brown. That order is not under appeal.
It appears that the third ground of appeal is in fact asserting that the member was wrong to appoint The Public Trustee for the single legal matter set out in the order made on 6 May 2014 in circumstances where The Public Trustee will charge remuneration for its services. The submissions filed by Ms Smith did not adequately address this third ground of appeal.
There is nothing identified by Ms Smith that would result in a finding by the appeal tribunal that the member should have appointed a family member rather than The Public Trustee based on the saving of fees. A family member appointed in the role of administrator to investigate this matter would encounter anew issues of conflict of interest. The member correctly considered that a person independent of the family would be required to investigate this legal matter for Ms Brown. There was no error made by the tribunal member in appointing a person independent of the family as an administrator for the limited purpose of investigating Ms Brown’s entitlements in a Family Provisions claim. The third ground of appeal cannot be sustained.
The fourth ground of appeal appears to repeat an assertion inherent in the earlier grounds of appeal that no Family Provision Application is needed and no investigation into such an application is needed. In her submissions Ms Smith devotes a great deal of her arguments about the likelihood that such an application would fail due to an absence of any legal basis for a Family Provision application and to the absence of factual support for such an application.
The member did not make any conclusions that suggested that QCAT had jurisdiction to decide a Family Provision Application or even that such an application is likely to succeed. QCAT does however have jurisdiction to appoint a decision-maker for a person with impaired capacity to take steps to exercise that person’s legal rights. Part of those steps would include investigating how those rights could be best exercised.
The submissions by Ms Smith reveal a fundamental misunderstanding of the purpose of a substitute decision-maker under the Guardianship and Administration Act 2000.An adult with impaired capacity has the right to adequate and appropriate support for decision-making. The Act is all about upholding rights. It is the right of everyone in the community to exercise their legal rights. That right is not diminished when a person has impaired decision-making capacity.
Ms Smith in her submissions does not address how Ms Brown can exercise her right to investigate obtaining a fair share at law of her late mother’s estate unless her decision-maker takes steps to exercise those rights on her behalf. That issue is not adequately addressed by Ms Smith and her sisters voluntarily giving financial support to Ms Brown if she should need extra financial support in the future. Ms Brown has a right to obtain advice as to whether she has been left a fair share of the estate. This particular legal right is not met by someone else promising to provide funds in the future.
Ms Smith has not been able to identity where the tribunal member fell into error in appointing an administrator to investigate this legal issue. The fourth ground of appeal cannot be sustained.
The fifth ground of appeal is an assertion that The Public Trustee has acted unconscionably. The decision made by the tribunal member is the subject of this application for leave to appeal and appeal, not the actions of The Public Trustee. The submissions of Ms Smith do not explain the basis for the assertion that The Public Trustee had pressured Ms Smith to sign a deed taking extra financial responsibility for Ms Brown and do not explain the relevance of this assertion to the appeal against the decision of the member to appoint an administrator to investigate a Family Provision Application.
In this fifth ground of appeal, what Ms Smith submits is, in essence, that the tribunal was wrong to accept the arguments of The Public Trustee that she had a relevant conflict of interest and had preferred her own interests over those of Ms Brown. This ground of appeal has already been considered earlier in these reasons and no error by the tribunal member in finding a relevant conflict of interest has been substantiated.
Ms Smith places reliance on an argument that she would be excused for any conflict of interest under sections 15, 37(3), 37(4), 58 and 248 of the Guardianship and Administration Act 2000.However none of these sections are of assistance to Ms Smith in appealing the decision made on 6 May 2014 to appoint an administrator to investigate a Family Provision claim for Ms Brown. Exculpatory provisions may possibly be relevant should a future decision be made by the tribunal that the conflict of interest has resulted in a loss to Ms Brown and that Ms Smith should compensate her sister for that loss.
However the current decision made on 6 May 2014 did not result in Ms Smith being removed as administrator for her sister (section 15), and did not result in any prosecution of Ms Smith for actions that could be excused by a court (section 58). The actions of Ms Smith did not give rise to any transactions with a third party (section 37). The immunity from civil liability in section 248 is not relevant to Ms Smith’s challenge to the appointment of The Public Trustee. The fifth ground of appeal fails to reveal any error by the tribunal member and cannot be substantiated.
The sixth ground of appeal asserts that the orders made by the tribunal were ultra vires of the powers conferred on the tribunal by the Guardianship and Administration Act 2000.The submissions filed on behalf of Ms Smith do not address this ground of appeal.
The order which is challenged by Ms Smith is the appointment of an administrator for the single purpose of a legal matter. The tribunal clearly has power to appoint an administrator for a financial matter under section 12 of the Act. Schedule 2 of the Act defines a financial matter as including a legal matter relating to an adult’s financial or property matters. Investigating whether an adult has an entitlement to provision from an estate is a matter relating to an adult’s financial matters. The appointment of The Public Trustee was made within the exercise of powers given to the tribunal by the Act.
It may be assumed from the filed submissions that Ms Smith is submitting that there is no basis for bringing a Family Provision Application on behalf of Ms Brown. However the order made on 6 May 2014 did not direct that any such application be made. The order merely appointed an administrator for a legal matter that was within the scope of the tribunal’s statutory powers. This sixth ground of appeal has no substance.
For the reasons set out, there is no reasonable argument established by Ms Smith that the decision made on 6 May 2014 is attended by error. As a result, I cannot find that an appeal is necessary to correct a substantial injustice to the applicant caused by error on the part of the hearing member.
Leave to appeal is refused. To the extent that the sixth ground of appeal is based on an assertion that there was an error of law, that ground has not been made out and an appeal is dismissed. There will be no order made as to costs.
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