SV

[2018] QCAT 313

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

SV [2018] QCAT 313

PARTIES:

In matters concerning SV

APPLICATION NO/S:

GAA1246-18 Review of the Appointment of an Administrator
GAA3672-18 Appointment of an Administrator

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

17 September 2018

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

ORDERS:

On 18 June 2018:

1.   The application filed by RPD for Aaron Clark to attend the hearing and/or produce a document or thing is dismissed.

2.   The application filed by RPD for WG to attend the hearing and/or produce a document or thing is dismissed.

3.   The application filed by RPD for ARN to attend the hearing and/or produce a document or thing is dismissed.

4.   The application filed by RPD for Shaun Apted to attend the hearing and/or produce a document or thing is dismissed.

5.   The application filed by RPD for SAS to attend the hearing and/or produce a document or thing is dismissed.

CATCHWORDS:

GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where various notices to attend and/or produce were filed – where justifications for the filing of the requested material was provided to the tribunal –  whether the tribunal could be satisfied that any  of the documents sought to be produced were directly relevant to the issues before the tribunal – where the tribunal could not be satisfied that any  of the documents sought to be produced were directly relevant to the application for the review of the appointment of an administrator – where the applications for notices to produce and/or attend were dismissed

Guardianship and Administration Act 2000 (Qld) s 130
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 97

APPEARANCES:

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

REASONS FOR DECISION

1. These are the reasons for my decision made, 18 June 2018 to dismiss a number of applications for notices to attend and/or produce documents.

2. On 25 February 2016, the Tribunal[1] decided to appoint the Public Trustee of Queensland as administrator for SV for all financial matters for a reviewable term of two years. The Tribunal also decided to overtake an enduring power of attorney dated 1 September 2006, appointing AAM, RPD (the applicant) and SAS jointly as attorneys for financial, personal and health matters. AAM, RPD and SAS are all children of SV.

   [1] Differently constituted.

3. On 7 February 2018, RPD filed an application to review the appointment of the Public Trustee of Queensland and proposed she be appointed sole administrator for her mother.

4. On 31 May 2018, RPD filed applications seeking that the tribunal issue notices for the following people to attend the hearing scheduled for 28 June 2018: Aaron Clark (office of the Official Solicitor for the Public Trustee of Queensland), WG, ARN, Shaun Apted (officer of the Public Trustee of Queensland) and SAS. In addition, the applicant sought notices for those people to produce certain documents. Section 97 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that the tribunal may, by written notice, require a person to attend at a hearing of a proceeding to give evidence or produce a stated document or thing. Whether to issue the notice requires an exercise of discretion by the tribunal.

5. A summary of the description of the documents sought by the applicant and the reasons stated by RPD for why they should be produced by the stated people follow:

   a)   From SAS and WG: documents relating to the purchase of a motor vehicle including documents relating to a car loan for a vehicle purchased in 2007 and documents relating to the business operated by SAS and WG, in particular, tax returns and asset details, the purchase agreement between SAS and SV, for the vehicle.

   Those documents were sought to prove that the vehicle was purchased as a business expense by SAS and WG’s business and that the documents had not been provided to the other attorneys.

   b)   From SAS and ARN: documents provided by ARN for the purpose of an audit including loan documentation between SAS and SV.

   Those documents were sought to determine whether SAS was dishonest when dealing with ARN.

   c)   From SAS: documents pertaining to the sum of $15,000 allegedly held by the adult for SAS;

   Those documents were sought to determine whether SAS in fact asked SV to hold money and to ascertain whether ARN was dishonest in providing details about the audit.

   d)   From SAS and/or WG: documents pertaining to an $80,000 loan to SAS and referred to in the Public Trustee’s accounts.

   Those documents were sought to prove ‘the authenticity’ of documents, date and terms of agreement. It was also claimed that they should have been made available to all the appointed attorneys.

   e)   From the Public Trustee of Queensland: the safety deposit box log from 2003 to closure.

   That document was sought to ascertain who had accessed the safety deposit box over time.

   f)    From SAS: Copies of diamond certifications from diamond engagement ring;

   Those documents were sought to prove the authenticity of the documents and value of the ring.

   g)   From SAS: insurance cover documents relating to the ring.

   Those documents were sought to ‘prove authenticity of the document’ and value of the ring.

   h)   From SAS: Copies of insurance cover taken over the ring apparently given to SV to hold in safety deposit box;

   Those documents were sought to ascertain, amongst other things, value, who had access to the deposit box and claims of theft which had been raised with the Public Trustee of Queensland.

   i)    From SAS: May 2016 or subsequent months copies of insurance cover over the ring, communicated to Public Trustee of Queensland.

   Those documents were sought to prove ‘authenticity of document, date, detail and value of diamonds in ring’.

   j)    From SAS: Copies of loan agreement and ‘expired loan agreement’ which was the basis for the removal of the engagement ring from the safety deposit box.

   Those documents were sought to ‘prove authenticity of the loan agreement’, its terms and expiration.

   k)   Copies of correspondence of investigation findings and any correspondence stating reasons given by the Public Trustee of Queensland.

   Those documents were sought to prove that the brief to the Official Solicitor was insufficient and would not cover concerns raised by the attorneys.

6. From the applications it seemed to me that RPD was interested to ascertain whether a motor vehicle was in fact purchased as a business expense for companies with which SAS and her partner were associated. It also appeared that the documents were sought to scrutinise the actions of SAS in her dealings and transactions with SV during the period after SAS was appointed as attorney. It also appeared that RPD was unhappy with the progress of investigations by the Public Trustee of Queensland as administrator in seeking and obtaining information and determining any action to be taken. Further, it seems RPD considers that any advice obtained from the Official Solicitor’s office may be inadequate or deficient as not all relevant information had been obtained in relation to the previous actions of SAS and the actions of others such as ARN and WG.

7. Although I decided to dismiss the applications for notices to attend and produce, I made arrangements through the Tribunal’s registry for Mr Apted and Mr Clark to attend the hearing. I also made arrangements for the applications for notices to attend and produce to be given to the Public Trustee of Queensland prior to the hearing so that the matters raised in those applications could be further discussed at the hearing where all active parties and interested persons had an opportunity to attend.

8. In determining a review of the appointment of an administrator, the Tribunal must consider the following issues:

   a)   Whether SV has impaired capacity for making decisions about financial matters;

   b)   Whether there is a need for a decision in relation to the matter or SV is likely to do something in relation to the matter that involves or is likely to involve unreasonable risk to the adult’s health, welfare or property; and

   c)   Without an appointment either the adult’s needs will not be adequately met or their interests not adequately protected.

   d)   If the tribunal is satisfied that there are appropriate grounds for an appointment to continue it may either continue its order or change its order in certain respects but may only make an order removing an appointee, in this case the Public Trustee of Queensland, if the tribunal considers the appointee is no longer competent or another person is more appropriate for appointment. [2]

   [2]Guardianship and Administration Act 2000 (Qld), s 31.

9. RPD claims that she is more appropriate for appointment than the Public Trustee of Queensland and perhaps seeks to argue that the Public Trustee of Queensland is not competent. Based on the information in the applications and other material before me, I could not be satisfied that any  of the documents sought to be produced were directly relevant to the issue of whether RPD was more appropriate for appointment than the Public Trustee of Queensland or that the Public Trustee of Queensland was not competent. The majority of the documents sought seemed more relevant to an investigation of decisions made or events that occurred during the period after SV executed the enduring power of attorney and before the Tribunal’s decision on 25 February 2016. That is the role of the administrator appointed at the discretion of the Tribunal provided the relevant criteria are met.

10. I consider that issuing the notices to attend and produce prior to the hearing would have unnecessarily burdened the hearing member and the active parties, with material which was not directly relevant to the issues for determination.

11. Pursuant to s 130 of the Guardianship and Administration Act 2000 (Qld) (the GAA), the Tribunal must ensure as far as it considers it practicable it has all the relevant information and material before it. Hearings of applications under the GAA are inquisitorial in nature. The hearing member, having the opportunity to discuss the issues for determination with the active parties, is best placed to consider whether any further information or documents should be obtained to properly determine the issues before the tribunal. The hearing member may make appropriate directions to obtain any relevant information prior to determining the matter.

12. For those reasons, I decided to dismiss the applications for issue of the notices prior to the hearing.