WJR v Public Trustee of Queensland
[2010] QCATA 39
•25 August 2010
| CITATION: | WJR v Public Trustee of Queensland [2010] QCATA 39 |
| PARTIES: | WJR |
| Applicant v | |
| The Public Trustee of Queensland Respondent |
| APPEAL NUMBER: | APL019-10 |
| MATTER TYPE: | Appeal |
| HEARING DATE: | 4 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President C Endicott, Senior Member |
| DELIVERED ON: | 25 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | Application for leave to appeal dismissed |
| CATCHWORDS : | GUARDIANSHIP AND ADMINISTRATION – CAPACITY FOR DECISION MAKING – LEAVE TO APPEAL – where The Public Trustee of Queensland appointed as administrator over all financial matters of the applicant for indefinite period of time – where The Public Trustee of Queensland maintained as administrator following two subsequent reviews in the Guardianship and Administration Tribunal – where the applicant’s application in the Queensland Civil and Administrative Tribunal for a declaration that he had capacity to make financial decisions was refused – where applicant contends that the Tribunal erred by relying on outdated report of a psychologist at Centrelink – where applicant alleges that allegations in report about his capacity for financial decision-making were false – where applicant’s brother and sister testified about applicant’s capacity to manage his financial affairs – whether the Tribunal relied on out-dated evidence – whether error of mixed fact and law Guardianship and Administration Act 2000 Cachia v Grech [2009] NSWCA 232, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | WJR, in person |
| RESPONDENT: | A representative of The Public Trustee of Queensland |
REASONS FOR DECISION
On 19 January 2006 the Guardianship and Administration Tribunal (GAAT) appointed The Public Trustee of Queensland as administrator for all financial matters for WJR for an indefinite period. The appointment was reviewed by that tribunal on 19 April 2007 and again on 8 April 2008 and on each occasion the appointment was continued indefinitely. (The Adult Guardian had also been appointed in 2007 as WJR’s guardian, to make some personal decisions for him.)
WJR had, after the initial appointment of The Public Trustee of Queensland in 2006, applied twice to GAAT for a declaration that he had capacity to make financial decisions. Both applications were considered but dismissed, on 19 April 2007 and on 8 April 2008.
WJR lodged another application for a declaration that he had capacity to make financial decisions in September 2009. Before that application came on for hearing, GAAT was abolished and on 1 December 2009 the Queensland Civil and Administrative Tribunal (the tribunal) commenced, and assumed responsibility for hearing applications under the Guardianship and Administration Act 2000.
The tribunal heard WJR’s application on 9 December 2009. He attended the hearing, as did his brother and sister and a representative of The Public Trustee of Queensland. (At the hearing the tribunal also conducted a review of the appointment of the Adult Guardian, but that matter is not in contention in this appeal.)
The tribunal, after analysing the evidence from 2005 to 2009, was not satisfied that WJR had the requisite capacity to make complex decisions in relation to financial matters and dismissed his application. The 2006 appointment of the administrator remained, then, in place.
WJR seeks to appeal the decision of the tribunal to dismiss his application for a declaration of capacity. Under s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act), a party may appeal a decision of the tribunal on a question of fact, or on a question of mixed law and fact, but only with the leave of the appeal tribunal.
WJR appeared to be relying on questions of mixed law and fact: he described the grounds of his disagreement with the decision of 9 December 2009, and his appeal, in terms that allegations made against him were false, and not based on his current financial status. For reasons which follow we conclude this is not a case to which s 142(3)(b) applies.
At the hearing before us WJR initially argued that he had identified a point of law on which to base his appeal – namely, that false evidence had been given to the tribunal (which is an offence). He asserted that the false evidence came from a social worker at Centrelink who did not have current knowledge of his ability to handle his current income, paid to him by way of a disability support pension, but who had made a judgment based on earlier information about his ability, or otherwise, to handle the lesser income he received in the past.
WJR is mistaken in categorising this evidence as something capable of establishing an error of law. For reasons we will explain, he has not identified anything suggesting that the tribunal made an error in the legal tests it used to determine his capacity for decision making. Rather he has raised, at the highest we think, an argument based on a question of mixed law and fact – that outdated evidence was wrongly relied upon when the tribunal was considering his current capacity to make decisions about his financial situation.
We apprehend that WJR was referring, in these submissions, to the evidence of RC, a psychologist at Centrelink who in 2005 had provided a report, concerning him, to GAAT. Her report had (justifiably, we think, for reasons set out later) been relied on by the tribunal in December 2009 as relevant evidence about WJR’s present capacity for financial decision making.
The effect of what WJR has argued is that, because of the age of RC’s report, it should be irrelevant to any decision made by the tribunal in 2009, or attract little weight.
It is not in issue that RC had not provided any updated report since 2005 but, in the reasons given on 9 December 2009, the tribunal made it clear that it understood that her evidence was provided over four years earlier. There is nothing raised by WJR to support the argument, which he advanced, that her evidence was false; rather, he was contending that it was wrong because it was outdated.
It is true that the tribunal, in its reasons, apparently accorded some current relevance and weight to RC’s opinion that WJR had limited budgeting capacity and exhibited obsessive spending habits, and also referred to her opinion that his decision making capacity had been affected by poor organisational, planning and problem solving skills, his major interpersonal deficits, and interpersonal anxiety.
The tribunal also had before it, however, other evidence provided in 2005 by ST (a social worker) and Dr H (a medical practitioner) who had both expressed opinions about WJR’s capacity for decision making in terms similar to RC.
Importantly, too (and contrary to what WJR has argued) the tribunal had other relevant (and current, and topical) information about his present capacity for financial management. That evidence came from WJR’s brother and sister, as well as WJR himself. Both his siblings expressed concern that he could not adequately manage his own financial affairs. The tribunal, as the transcript of the hearing shows, offered WJR the opportunity to explain how he would approach relatively straightforward financial transactions and was persuaded by his own evidence that he ‘…really would (not) be able to effectively…’ undertake them himself.
The tribunal clearly preferred the evidence of these witnesses to the evidence of Dr K, who had provided two reports in 2007, and one in 2009, and who had expressed the opinion that WJR could make his own decisions.
In its decision the tribunal exposed its reasons for preferring the opinions of RC, Dr H and ST over Dr K’s evidence[1]:
[1]Transcribed decision of QCAT delivered orally on 9 December 2009, paragraphs 10-13
In all of Dr K’s reports, his knowledge of WJR appears to be quite superficial. At no time does he indicate that he knows what has occurred in WJR’s life in those earlier years, and of the difficulties that WJR got into by not paying his bills. In the most recent report, Dr K actually says that he has had limited exposure to WJR.
On the basis of that very limited exposure, Dr K has expressed the view that WJR is able to make complex decisions for himself in relation to personal health care, lifestyle and accommodation choices, but he does not offer an opinion on WJR’s ability to manage his financial affairs.
It is the absence of that background information in so far as the earlier debt difficulties for WJR, that the Tribunal believes would have assisted Dr K in making a more definitive statement abut WJR’s ability to manage complex financial issues. The Tribunal attempted to contact Dr K and have him available to speak with the Tribunal this afternoon to perhaps clarify some of those issues and explain the level of his understanding of WJR’s background and the debt issues. Unfortunately Dr K was not able to make himself available to the Tribunal.
Given Dr K’s stated limited exposure to WJR and the equivocal nature of the reports that he has provided on those occasions earlier stated, the tribunal is unable to give to Dr K’s report any great weight in determining the issue of capacity today.
The capacity definition in the Guardianship and Administration Act 2000 requires an examination of the ability of an adult to understand the nature and effect of decisions about a matter. At the hearing on 9 December 2009 the tribunal clearly had evidence on which findings could be made about WJR’s ability, or lack of ability, to understand the nature and effect of decisions.
The tribunal was entitled to conclude that the 2005 evidence addressed more than WJR’s financial position at that time and that it also, relevantly, addressed the underlying factors which adversely affect his ongoing ability to make decisions about his financial affairs, such as his apparently persisting lack of insight into the consequences of not paying bills and poor organisational, planning and problem solving skills. By accepting this evidence, the tribunal inferentially found that those underlying factors are still currently, adversely affecting WJR’s ability to manage his affairs.
In the passage set out earlier the tribunal carefully analysed Dr K’s evidence and was unsurprisingly reluctant to give it much weight in the light of his concession that he had only limited knowledge of WJR. The tribunal’s preference for the evidence of witnesses more familiar with, and aware of, WJR’s manifested deficits in managing his own financial affairs is explained and shown to be unsurprising, and in accord with the weight of the evidence before it.
There is no basis for concluding that the findings of fact made by the tribunal about WJR’s capacity were erroneous, or that they did not support its conclusion that the presumption of capacity had been rebutted by the evidence. The findings were open on the evidence, and supported by, and in accord with, the weight of it.
Nothing in the transcript of the tribunal proceedings, or the transcribed oral reasons given by the tribunal on 9 December 2009, is persuasive that the tribunal was in error in finding that the evidence from 2005 about WJR’s abilities to manage his financial affairs had continuing relevance to a determination, in 2009, of his decision making capacity.
The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[2] Is there a reasonable prospect that the applicant will obtain substantive relief?[3] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[4] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[5]
[2] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[3] Cachia v Grech [2009] NSWCA 232 at [13].
[4] QUYD Pty Ltd v Marvass Pty Ltd (supra).
[5]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.
There is not, for the reasons set out, any apparent error in the tribunal’s decision or the process by which it was reached. No important or novel questions are inherent in the matters raised by WJR.
Leave to appeal is refused, and the application for leave to appeal is dismissed.
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