SVA
[2022] QCAT 306
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
SVA [2022] QCAT 306
PARTIES:
In an application about matters concerning SVA
APPLICATION NO:
GAA5934-22
MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
8 August 2022
HEARING DATE:
8 August 2022
HEARD AT:
Brisbane
DECISION OF:
Member Kanowski
ORDER:
Application GAA5934-22 is dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
CATCHWORDS:
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – JURISDICTION, PROCEDURE AND EVIDENCE – GENERALLY – where applications withdrawn – whether a person who filed material can seek costs against the applicant – whether the person was an active party
Guardianship and Administration Act 2000 (Qld), s 80ZQ, s 127
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 42(1)
APPEARANCES & REPRESENTATION:
The matter was decided on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’)
MTA was represented by Bennett Carroll Solicitors
REASONS FOR DECISION
Introduction
For the sake of the privacy of an adult who was the subject of a guardianship proceeding, certain persons will be referred to by pseudonyms in these reasons:
(a)the adult will be referred to as SVA;
(b)her mother will be referred to as MTA.
On 9 May 2022, MTA applied to the tribunal for a costs order against a service provision organisation. That application has been assigned the case number GAA5934-22. I have decided to dismiss that application, before it proceeds to hearing, under section 47 of the QCAT Act.
Background
On 16 February 2021, staff members of the service provision organisation filed a Form 10 application – application for administration / guardianship appointment or review – in the tribunal concerning SVA. In the application, the staff members said that restrictive practices were being used (not by the organisation) in the home where SVA lived with MTA. The staff members identified the restrictive practices as containment and restricting access to objects.
The tribunal’s registry treated the application form as constituting an application for the approval of containment and an application for the appointment of a guardian for a restrictive practice. The applications were assigned the case numbers GAA5378-21 and GAA5379-21 respectively. I will refer to the proceedings involving those applications as the restrictive practices proceedings.
The tribunal’s registry notified various persons, including SVA and MTA, of the restrictive practices proceedings, and invited their comments. MTA, via her solicitors, provided a detailed affidavit in response to the restrictive practices applications.
On 15 June 2021, the tribunal’s registry sent a notice of hearing to various persons, including SVA and MTA, advising that the restrictive practices proceedings would be heard on 23 June 2021.
On 17 June 2021, the staff members filed an application for leave to withdraw the restrictive practices proceedings. Leave was granted by the tribunal on 21 June 2021. Accordingly, the restrictive practices applications did not proceed to hearing.
On 9 May 2022, MTA filed her application for costs. The costs application relates to costs incurred by MTA in the restrictive practices proceedings. Costs are sought under section 127 of the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’). That section provides that ‘the tribunal may order an applicant to pay an active party’s costs … in exceptional circumstances’.[1]
[1]Guardianship and Administration Act, s 127(2).
On 30 June 2022, the tribunal made directions seeking submissions from MTA on whether she was an active party for the restrictive practices proceedings and, if not, why her application for costs should not be dismissed under section 47 of the QCAT Act. The directions also indicated that the application for costs may be dismissed by the tribunal on the papers.
Section 47 of the QCAT Act permits the tribunal to dismiss, before any hearing, an application that is misconceived.
Restrictive practices proceedings are dealt with in Chapter 5B of the Guardianship and Administration Act. Section 80ZQ, within Chapter 5B, says:
80ZQ Who is an active party
Each of the following is an active party for a proceeding under this chapter—
(a) the chief executive (disability services);
(b) the applicant;
(c) the adult concerned in the proceeding;
(d) any current guardian or administrator for the adult;
(e) if the adult is subject to a forensic order, treatment support order or treatment authority under the Mental Health Act 2016—the chief psychiatrist;
(f) if the adult is a forensic disability client—the director of forensic disability;
(g) a relevant service provider providing disability services to the adult;
(h) the public guardian;
(i) a person joined as a party to the proceeding by the tribunal.
Example of a person who might be joined as a party—
a member of the adult’s family
MTA’s solicitors filed submissions on her behalf on 25 July 2022. MTA argues that she was an active party for the restrictive practices proceedings, for a number of reasons as discussed below. Further, MTA argues that even if she was not an active party, her application for costs should not be dismissed. The submissions will be discussed below.
Current guardian or administrator?
MTA argues she was an active party as a current guardian or administrator for SVA: section 80ZQ(d).
In proceedings after the restrictive practices proceedings, on 1 November 2021 the tribunal appointed MTA as a guardian and an administrator for SVA. This was the earliest such appointment. I find that MTA was not a current guardian or administrator when the restrictive practices proceedings were conducted. Accordingly, she was not an active party to those proceedings under section 80ZQ(d).
It seems to be implicit in MTA’s submissions that she has been, in substance, the guardian and administrator for SVA for all of SVA’s adult life. She describes herself as ‘the mother, provider, carer and guardian’ of SVA.[2]
[2]MTA’s submissions filed 25 July 2022, [4(b)].
However, while MTA may long have been the personal and financial decision-maker for SVA, ‘guardian’ and ‘administrator’ are defined terms in the Guardianship and Administration Act. A guardian is ‘a guardian appointed under this Act’,[3] and an administrator is ‘an administrator appointed under this Act’.[4] Such appointments can be made only by the tribunal or the Supreme Court. Accordingly, MTA was not a current guardian or current administrator for SVA at the relevant time.
[3]Guardianship and Administration Act, Schedule 4 Dictionary, definition of ‘guardian’.
[4]Ibid, definition of ‘administrator’.
Adult guardian?
MTA cites an earlier version of section 80ZQ which uses the term ‘the adult guardian’ rather than ‘the public guardian’ in paragraph (h). MTA submits that she was at the relevant time the adult guardian for SVA. Again, she relies on her long history of care and support for SVA. MTA argues that she was an active party for the restrictive practices proceedings under section 80ZQ(h).
However, at the relevant time, the reference in section 80ZQ(h) was to the public guardian. The public guardian is an officer appointed by the Governor in Council.[5]
[5]Public Guardian Act 2014 (Qld), s 94(1).
MTA was not an active party for the restrictive practices proceedings under section 80ZQ(h).
Person joined as a party?
MTA submits that she was an active party for the restrictive practices proceedings as a person joined as a party to the proceedings by the tribunal: section 80ZQ(i). She notes that the tribunal had notified her of the restrictive practices proceedings and requested comments from her. This was an invitation ‘to be a part of the proceedings’,[6] which she accepted by providing her affidavit.
[6]MTA’s submissions filed 25 July 2022, [4(b)(iii)(i)(4)].
Joinder of parties is provided for in section 42 of the QCAT Act: ‘the tribunal may make an order joining a person as a party to a proceeding …’.[7] ‘Order’ is not defined, but the expression connotes a formal, express order, bearing the tribunal’s seal. No order was made joining MTA as a party to the restrictive practices proceedings.
[7]QCAT Act, s 42(1).
The fact that the tribunal gave MTA notice of the proceedings does not mean she had been joined as an active party. Under rule 21(3)(b) of the Queensland Civil and Administrative Tribunal Rules 2009 (Qld), the principal registrar of the tribunal is required to give notice of an application to a range of people such as ‘the members of the relevant adult’s family’ and ‘any primary carer of the relevant adult’. Similarly, under section 118(1) of the Guardianship and Administration Act, the tribunal must give notice of a hearing to a range of people including ‘any parent of the adult who is in a close and continuing relationship with the adult’ and ‘any sibling of the adult who is in a close and continuing relationship with the adult’.
It can be seen that notice must be given to a wider range of persons than the active parties. This promotes input by members of the adult’s support network, which in turn helps the tribunal to ensure that ‘it has all the relevant information and material’.[8]
[8]Guardianship and Administration Act, s 130(1).
I conclude that MTA was not a person joined as a party to the proceeding. She was not an active party under section 80ZQ(i).
Active party as a person given access to documents?
MTA notes that active parties are entitled to access relevant documents before a hearing, under section 103 of the Guardianship and Administration Act. MTA says that QCAT had sent her copies of the documents filed by the applicants in the restrictive practices proceedings, so that she could prepare her response.
While I cannot see on file a record of what was sent to MTA, I accept her evidence that she was sent a copy of the documents filed by the applicants. However, she should not have been sent those documents in the absence of an order joining her as a party. The right to access documents before a hearing under section 103(1)(a) of the Guardianship and Administration Act is limited to active parties. The fact that MTA was sent the documents did not make her an active party, in the absence of a joinder order by the tribunal.
Conclusion about whether MTA was an active party
‘Active party’ is a defined term. MTA was not an active party for the restrictive practices proceedings.
Whether the application for costs should be dismissed
MTA submits that her application for costs should not be dismissed even if the tribunal were to conclude that she was not an active party. MTA submits that she incurred costs in responding to unnecessary applications.
However, only an active party can be awarded costs under section 127 of the Guardianship and Administration Act. As MTA was not an active party for the proceedings in question, her application for costs cannot succeed. It should be dismissed as misconceived, under section 47 of the QCAT Act, so that the resources of the tribunal and other parties are not devoted to a futile application.
Conclusion
For these reasons, the application for costs is dismissed.
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