TCN v Public Guardian

Case [2022] QCATA 158

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

TCN v Public Guardian & anor [2022] QCATA 158

PARTIES:
TCN

(applicant/appellant)

v
TAJ
PUBLIC GUARDIAN
THE PUBLIC TRUSTEE OF QUEENSLAND
TL

(respondents)

APPLICATION NO/S:

APL121-21

ORIGINATING APPLICATION NO/S:

G24093

MATTER TYPE:

Appeals

DELIVERED ON:

18 October 2022

HEARING DATE:

9 June 2022

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1.     Leave to appeal is refused in respect of grounds 1, 2 and 3.

2.     Leave is granted for TCN to amend grounds of appeal 4 and 5.

3.     Leave to appeal is granted in respect of grounds 4 and 5.

4.     The appeal is allowed on grounds 4 and 5.

5.     The Tribunal’s orders numbered 5 and 6 made on 26 March 2021 are set aside.

6. The application for costs pursuant to s 125 of the Powers of Attorney Act 1998 (Qld) is remitted to the Tribunal differently constituted for determination according to law, after the filing of such further evidence and submissions as the Tribunal may direct.

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES - ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS – PROCEDURAL FAIRNESS – HEALTH LAW - GUARDIANSHIP MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY –whether the Tribunal erred in refusing to issue the notices to produce to where the documents may be relevant to the adult’s capacity – whether the Tribunal erred in finding the presumption of capacity was not rebutted in circumstances where there was evidence of impaired capacity prior to those dates – whether the Tribunal erred in making order for costs – whether the Tribunal erred in not considering the matters it was required to consider in exercising its power to award costs – where there was a breach of procedural fairness

Guardianship and Administration Act 2000 (Qld) s 127, s 130,

Powers of Attorney Act 1998 (Qld) s 41, s 125,

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 3, s 7, s 100, s 102, s 107, s 146, s 147

MG & anor v The Public Guardian & anor. [2021] QCATA 89

Pickering v McArthur [2005] QCA 294

RAG v HDG & Ors [2022] QCATA 79

APPEARANCES & REPRESENTATION:

Applicant:

A Rae, Counsel instructed by McCullough Robertson Solicitors for TCN

Respondents:

 JR Moxon, Counsel instructed by O’Connor Ruddy & Garrett Solicitors for TAJ

No appearance by Public Trustee of Queensland

No appearance by Office of the Public Guardian

PJ Coore, Counsel instructed by Cooper Grace & Ward Solicitors for TL

REASONS FOR DECISION

  1. On 30 May 2018, TAJ made an enduring power of attorney (EPA) pursuant to the Powers of Attorney Act 1998 (Qld) (POA Act) appointing TL as attorney for all of her financial matters, and her health and personal matters. The EPA was witnessed by a solicitor, Mr Rudz, who had asked for a health professional report in advance as to whether TAJ had the requisite capacity to make an EPA. A report dated 28 May 2018 from Dr Botha confirmed that,…

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Details
AGLC
TCN v Public Guardian [2022] QCATA 158
Case
[2022] QCATA 158
Decision Date

CaseChat Overview and Summary

In the case of TCN v Public Guardian, TCN sought to appeal the decision of the Tribunal in relation to various aspects of the management of the estate and affairs of an incapacitated person, TAJ. The Tribunal had previously made orders concerning the issuance of notices to produce documents, the rebuttable presumption of capacity, and an order for costs. TCN contested these decisions, arguing that the Tribunal had erred in its handling of procedural fairness, particularly in the context of the issuance of notices to produce documents and the awarding of costs.

The primary legal issues that the court had to decide were whether the Tribunal erred in refusing to issue the notices to produce documents, whether the Tribunal erred in finding the presumption of capacity was not rebutted, whether the Tribunal erred in making the order for costs, and whether the Tribunal erred in not considering the necessary matters in exercising its power to award costs. Additionally, the court considered whether there was a breach of procedural fairness by the Tribunal.

The court found that the Tribunal had indeed erred in denying procedural fairness to TCN in respect of the costs application under the Powers of Attorney Act 1998 (Qld). This error was material, and the court allowed the appeal based on this error of law. The court set aside the Tribunal’s orders numbered 5 and 6 made on 26 March 2021 and remitted the application for costs to a differently constituted tribunal for determination according to law. The court also granted leave to TCN to amend grounds of appeal 4 and 5 and allowed the appeal on those grounds.

In conclusion, the court made several orders to address the issues raised in the appeal. The orders included refusing leave to appeal on grounds 1, 2, and 3, granting leave for TCN to amend grounds of appeal 4 and 5, granting leave to appeal on grounds 4 and 5, allowing the appeal on grounds 4 and 5, setting aside the Tribunal’s orders numbered 5 and 6 made on 26 March 2021, and remitting the application for costs to the Tribunal for reconsideration.

Orders

Orders of the court

1. Leave to appeal is refused in respect of grounds 1, 2 and 3.

2. Leave is granted for TCN to amend grounds of appeal 4 and 5.

3. Leave to appeal is granted in respect of grounds 4 and 5.

4. The appeal is allowed on grounds 4 and 5.

5. The Tribunal’s orders numbered 5 and 6 made on 26 March 2021 are set aside.

6. The application for costs pursuant to s 125 of the Powers of Attorney Act 1998 (Qld) is remitted to the Tribunal differently constituted for determination according to law, after the filing of such further evidence and submissions as the Tribunal may direct.

Background

Background to the litigation

An appeal on a question or questions of law alone must proceed pursuant to s146 of the QCAT Act. It is an appeal in the strict sense. An appeal on a question of mixed law and fact must proceed under s 147 of the QCAT Act by way of rehearing. Any question of law also arising can then be dealt with in the rehearing. Background Before turning to the grounds of appeal, it is useful to outline the relevant background circumstances. TCN submits that, prior to 2012 when TAJ left her mother’s home, TAJ was always treated as though she had impaired capacity for making some decisions having regard to some observable deficits. It emerged after the death of her father, that TAJ had been abused physically and psychologically for many years by her mother who was said to be very controlling. TAJ’s only sibling, a brother, brought her to Queensland. He had sought appointment as administrator for TAJ in the Tribunal but subsequently, with leave of the Tribunal, withdrew that application. In April 2012, TAJ executed a Queensland EPA in favour of her brother. TAJ lived with her brother and his wife, TL, for some time. In 2013, she moved to Golden Age Aged Care facility but enjoyed ongoing support from her brother and TL. In August 2015, she executed two NSW enduring documents, one for financial matters and the other for personal matters, in favour of her brother. Shortly after her brother died in 2018, TAJ executed a new Queensland EPA in favour of TL, and shortly thereafter, a NSW EPA for financial matters. She also moved from Golden Age Aged Care to a different aged care facility. I now turn to consider the grounds of appeal.Ground 1: did the Tribunal err in refusing to issue the notices to produce? On 30 October 2020, TCN applied for four notices to produce to be issued. Two of those were to Dr Botha and Mr Rudz. The others were to the Golden Age Aged Care facility where TAJ lived between 2013 and 2018 and the Broadbeach Family Practice where TAJ had been a patient between 2013 and 2016. TCN submitted that their records were likely to assist in determining TAJ’s capacity for making the EPA in favour of TL in May 2018. For reasons unknown, the registry did not refer the applications for the notices to produce to the Tribunal for determination until the day of the oral hearing of TCN’s broader applications, namely 26 March 2021. On 26 March 2021, the learned Member dealt with the applications for notices to produce as a preliminary issue. The Tribunal sought and heard oral submissions from the parties about the applications for notices to produce and then made a decision to refuse the applications to issue the notices to produce. In particular, the Tribunal explored how Broadbeach Family Practice records were said to be relevant in determining TAJ’s capacity for the EPA on the relevant date, that is, 30 May 2018 and why TAJ’s human right to privacy should be interfered with by requiring Golden Age’s records. The Tribunal enquired whether TCN knew of particular documents each of them held that might assist with the relevant questions. The response was to the effect that she did not. The learned Member considered Dr Botha’s records relevant and ‘in a different category’[5] but that nevertheless obtaining the records which would then be available not only to the Tribunal but other people would ‘prima facie be a breach of her right to privacy protected under the Human Rights Act (Qld) 2019.’ [6] [5]Appeal Book, Transcript of Hearing 26 March 2021, p 251, lines28.[6]Appeal Book, Transcript of Hearing 26 March 2021, p 251, lines 31-31.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons explained, if it is necessary to do so, I give leave to TCN to amend grounds of appeal 4 and 5 to include the issues ventilated about denial of procedural fairness. I grant leave for the appeal, having regard to the material error made by the Tribunal in denying procedural fairness to TCN in respect of the costs application under the POA Act. Further, I would allow the appeal based on this error of law. Conclusions and Orders I make orders refusing leave to appeal on Grounds 1, 2 and 3, for the reasons earlier set out. explained. For the reasons explained, I grant TCN leave to amend grounds of appeal 4 and 5, grant leave to appeal on those grounds of appeal, and allow the appeal on grounds 4 and 5. In proceeding under s 146 of the QCAT Act, I set aside orders 5 and 6 of the Tribunal dated 26 March 2021 and return the application for costs under s 125 of the POA Act to a differently constituted tribunal to be determined according to law, with such additional evidence and submissions as may be directed by the Tribunal. To minimise any further costs to any party, I observe that a hearing on the papers in due course would appear to be appropriate. Observations For the parties’ benefit, I make the observation that in the absence of material that allows me to draw conclusions about the quantum of any costs that might reasonably be awarded pursuant to s 125 of the POA Act, unless the Tribunal concludes upon reconsideration that costs should not follow the event, it is not apparent whether the success of the appeal will ultimately result in a substantially different outcome. Further, in the meantime, the parties may accrue additional legal costs. It seems all persons involved in the proceeding are likely motivated by genuine concern and affection for TAJ, irrespective that, unfortunately, mistrust may have developed between family members in seeking to address the issues. I observe that it is open to the parties and may be in the interests of maximising the potential for more harmonious future family relations and limiting any further costs, for the parties to endeavour to reach agreement about costs.

Ratio Decidendi

Legal Principle Established

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