SZ v ME and MA
[2018] QCATA 21
•14 February 2018
CITATION: | SZ v ME and MA [2018] QCATA 21 |
PARTIES: | SZ ( Applicant) |
| v | |
| ME ( First Respondent) MA ( Second Respondent) | |
APPLICATION NUMBER: | APL327-17 |
MATTER TYPE: | Appeals |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Howard Member Endicott |
DELIVERED ON: | 14 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | The application to stay a decision is refused |
CATCHWORDS: | APPEALS AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where an Adult seeks to stay a declaration of capacity pending the outcome of an application for leave to appeal/appeal – where an Adult – where Adult revoked his Enduring Power of Attorney – where a declaration of capacity rendered the revocation of the Enduring Power of Attorney invalid - where the Adult sought a stay of the declaration of capacity – whether a declaratory order is capable of being stayed – whether the rights conferred by a declaratory order can be stayed Guardianship and Administration Act 2000 (Qld) s5, s 6 Arnhem Land Aboriginal Land Trust v Northern Territory of Australia [2007] FCAFC 31 |
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).
REPRESENTATIVES: | |
APPLICANT: | Represented by A Stolar from Stolar Law |
RESPONDENTS: | Self-represented |
REASONS FOR DECISION
On 8 August 2017, the Tribunal heard and determined applications about SZ. The applications were made under the Powers of Attorney Act 1998 (Queensland) and under the Guardianship and Administration Act 2000 (Queensland). The applications related to the validity of the revocation by SZ on 13 July 2016 of his Enduring Power of Attorney dated 20 November 2009 and to the proposed appointment of a guardian and administrator for SZ.
At the conclusion of the hearing, the learned member made declarations in the following terms:
a.SZ does not have capacity for complex personal and financial matters;
b.The revocation of an Enduring Power of Attorney by SZ dated 13 July 2016 in relation to the Enduring Power of Attorney dated 20 November 2009 is invalid;
c.The powers given to the attorneys (ME and MA) under the Enduring Power of Attorney dated 20 November 2009 have begun.
The learned member also made orders dismissing the applications for the appointment of a guardian and administrator for SZ.
SZ has lodged an application for leave to appeal/appeal the decision of the learned member. In particular, SZ seeks outcomes that have the effect of setting aside the declaration about his capacity and the declaration about the invalidity of the revocation of the Enduring Power of Attorney. SZ is not appealing the part of the decision that dismissed the applications for the appointment of a guardian and administrator.
SZ has also sought an order staying the decision of the learned member pending the outcome of the application for leave to appeal/appeal. In doing so, SZ seeks to stay the declarations made by the learned member.
Although making declaratory orders is usually the domain of courts, the Tribunal has been given power to make declarations by the Power of Attorney Act 1998 (Queensland) and by the Guardianship and Administration Act 2000 (Queensland). A declaratory order had been described as a formal statement by a court (or tribunal in this case) pronouncing on the existence or non-existence of a legal state of affairs. A declaratory order is contrasted with an executory or coercive order that can be enforced by the courts.[1]
[1] Itzhak Zamir and Jeremy Woolf, The Declaratory Judgment (Sweet & Maxwell, 3rd ed, 2000) [1.02] as cited by Justice Robert French in "Declarations – Homer Simpson's remedy – is there anything they cannot do?" (FCA) [2007] FedJSchol 24.
Declarations by courts (and tribunals) have legal consequences. The declaration operates in law either as a res judicata or an issue estoppel and such an order is a final order for the purposes of appeal.[2] However, as the effect of a declaration is not to create rights, the courts have determined that applications to stay a declaration should be refused due to the logic that there is nothing about a declaratory order that can be stayed.[3]
[2]Young PW, Declaratory Orders (Butterworths, 2nd ed, 1984) [602] - [603] as cited by Justice French, above n 1, [5].
[3] Justice French, above n 1, [7].
In Bunnings Forest products Pty Ltd v Bullen[4] Carr J of the Federal Court could find no authority for the proposition that the Court has power to stay a declaratory order. This proposition was also accepted by Kiefel J in Re Sol Theo: Ex parte Sol Theo.[5]Doyle CJ in Roosters Club Inc v Northern Tavern Pty Ltd (no 2)[6] had stated that conceptually it is difficult to see how the court can stay what it has already declared, namely in that case that a grant of a gaming licence was void.[7] These decisions were favourably mentioned by the Full Court of the Federal Court in Arnhem Land Aboriginal Land Trust v Northern Territory of Australia.[8]
[4] [1994] FCA 1526.
[5] [1996] FCA 787.
[6] [2003] SASC 143.
[7] Ibid [18].
[8] [2007] FCAFC 31.
In the Arnhem Land Aboriginal Land Trust case, the Full Court recognised that courts had entertained the proposition that a court might be able to suspend or postpone a declaratory order coming into effect for a period fixed by reference to some appropriate stage of the appellate process. However, the Full Court referred to the comments of Doyle CJ in Roosters Club Inc that:
The grant of a stay cannot confer immunity from the consequences of an ultimate decision that the grant of the licence is void, in respect of the period between the grant of the licence and the making of the ultimate decision. If the ultimate decision is that the licence is void, it has been void from the outset. The Court cannot, by granting a stay, avoid whatever consequences may flow from that result, in respect of the period pending the ultimate decision.[9]
[9] [2003] SASC 143, [22].
The Full Court determined that the stay sought in the Arnhem Land Aboriginal Land Trust case could be misleading and engender a false sense of security. If the licences in that case did not validly authorise fishing in the intertidal zone, the position was not changed by staying the declaration of invalidity of the licences. Nor was the dilemma resolved by suspending the operation of the declaration. There was no authority at law to engage in the activity without a valid licence.
In a more recent decision of Mercanti v Mercanti,[10] the Full Court of the Supreme Court of Western Australia was asked to restrain the actions of trustees pending an appeal against the orders of the primary judge who had made declarations about the validity of certain trust related documents. The Full Court noted that the general principles that apply to an application for a stay are not materially different from the principles that apply to an order to suspend the operation of actions to enforce a decision of the Court. Buss and Mazza JJA stated, consistently with the authorities already mentioned in these reasons, that it appears doubtful whether a declaratory order can be the subject of injunctive relief or a stay pending an appeal.[11]
[10] [2015] WASCA 206.
[11] Ibid [18].
While the Full Court in Mercanti acknowledged that it had power to grant injunctive relief in respect of rights that had been declared by the trial judge to exist (our emphasis), the case is not authority for allowing a stay or injunctive relief about rights or about capacity for specific decision-making that the hearing member found did not exist.
More importantly, if, taking into account the authorities already mentioned, the Tribunal did not make a stay order due to a lack of power to do so but wanted nevertheless to give some injunctive relief that would prevent the attorneys from making decisions for SZ pending the outcome of SZ’s appeal, the effect would be inadequate support for SZ. There would be a declaration in force that he did not have decision-making capacity but at the same time, he could not look to his attorneys to make decisions for him on a substituted decision-making basis. Such a result would not be in keeping with sections 5 and 6 of the Guardianship and Administration Act 2000 (Queensland).
In SZ's case, further conceptual difficulties arise with respect to staying the declaration that SZ does not have capacity for complex matters and staying the declaration that his purported revocation of the Enduring Power of Attorney was invalid. The presumption of capacity had been positively overtaken by the findings of the Tribunal. If the findings made by the learned member are not set aside on appeal, SZ had impaired capacity for complex personal and financial matters since 8 August 2017 and his attorneys had sole authority to make decisions for him even if there had been an order purporting to stay the declarations made by the learned member.
In such a case, there would be no immunity for persons contracting with SZ in complex financial matters in the period before the appeal was finalised, or for persons refusing to accept instructions from the attorneys during that period as decisions made by SZ would be made without legal capacity to contract and would be void.[12]
[12] Bergmann v Daw [2010] QCA 10 [48] (Muir JA).
Unlike executory orders for the payment of money arising from a judgment or for the carrying out of some specific action, where a stay order would prevent the exercise of the rights conferred by the judgment pending an appeal, a stay order has no purpose where rights are not created by the declaratory order under appeal. There are no rights arising from the declaratory orders that can be stayed. The Tribunal accepts and is bound to follow the proposition, upheld by the courts, that declaratory orders cannot be stayed.
The only outcome is to refuse the application for a stay.
5
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