WWR
[2018] QCAT 463
•16 October 2018 (delivered ex tempore)
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
WWR [2018] QCAT 463
PARTIES:
In applications about matters concerning WWR
APPLICATION NO/S: GAA5592-18; GAA5594-18; GAA5595-18;
GAA70621-18MATTER TYPE:
Guardianship and administration matters for adults
DELIVERED ON:
16 October 2018 (delivered ex tempore)
HEARING DATE:
16 October 2018
HEARD AT:
Mackay
DECISION OF:
Member Gardiner
ORDERS: 1. The application for advice, directions and recommendations for WWR is dismissed.
2. The Tribunal orders that pursuant to s 108 of the Guardianship and Administration Act 2000 (Qld) publication of information about the following advices is prohibited:
(a) Advice from Counsel to the Official Solicitor of the Public Trustee of Queensland dated 10 November 2017; and
(b) Advice of the Official Solicitor of the Public Trustee to the Public Trustee of Queensland dated 8 March 2018.
3. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld) the following information/documents are confidential and must not be disclosed:
(a) Advice from Counsel to the Official Solicitor of the Public Trustee of Queensland dated 10 November 2017; and
(b) Advice of the Official Solicitor of the Public Trustee to the Public Trustee of Queensland dated 8 March 2018.
4. The application for a closure order for WWR is dismissed.
CATCHWORDS: HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – where administrator sought advice, directions or recommendations – where daughter had used substantial monies of person for her own purposes – where some monies had been recovered – where daughter had no assets to recover further monies – whether advice, directions or recommendations should be made
Guardianship and Administration Act 2000 (Qld), s 107,
s 108, s 109, s 130, s 138APPEARANCES & REPRESENTATION:
Public Guardian:
S Gable
Public Trustee:
T Whittaker, S Pedersen
REASONS FOR DECISION
Member Gardiner: Four applications are before the Tribunal today, the first being an application for advice, directions and recommendations under section 138 of the Guardianship and Administration Act 2000 (Qld), concerning the Public Trustee’s decision not to proceed against the daughter of the adult WWR who has appeared to have fraudulently asset-stripped – because that is effectively what it is – her father, of a substantial amount of money.
Over a period of time, from a number of sources, WWR’s daughter has used funds for what appears to be totally her own benefit, often taken out in places where gambling occurs and often taken out with no apparent recompense back to WWR for any particular bill. On one occasion, even her daughter made a withdrawal, using internet processes, after the Public Trustee was appointed WWR’s administrator instead of WWR’s daughter and after these misappropriations of funds came to the attention of the Tribunal.
To the credit of the Public Trustee, they were able to retrieve about $20,000 that had been paid by a bank after the bank had been notified that the Public Trustee was the administrator for WWR. It would appear the bank continued to allow withdrawals by his daughter, but the bulk of the money the daughter has taken out, about $181,000, has been misappropriated. It would appear that she has a substantial problem, potentially with gambling, because of the venues in which these amounts were taken out, or some of them, in any event. WWR’s daughter appears to have no assets. To the extent that the Public Trustee can make investigations, she is renting a Department of Housing property, she does not appear to have an income and she does not appear to have any other assets.
On the advice of Counsel, the Public Trustee made a decision to not pursue the daughter for the return of these monies, on the basis that this was a futile action and that, even if a judgment was obtained against her, there were no assets against which the monies could be attached.
In all of the circumstances, this appears to me to be a perfectly appropriate decision. It is a decision based on the evidence before the Public Trustee at this point. The Public Trustee does not rule out the possibility, if further evidence or further information came to light in the future, that they would not pursue this against WWR’s daughter. But, at this time, to use the old phrase, it is probably throwing good money after bad, to continue pursuing her for money she just simply cannot repay.
This is a decision in this jurisdiction that the Public Trustee often has to make. These exact circumstances, where someone has taken advantage of an authority given to them, either under an Enduring Power of Attorney or under an order of the Tribunal, where they are unable to resist their own needs and they use the money of the person for whom they have been appointed to their own ends, is an all too often story that this Tribunal hears.
Despite this Tribunal’s attempts to ensure that administrators appointed under this Act are both appropriate and competent, sometimes the temptation is just simply too great for people, and this certainly appears to have been the case for WWR’s daughter. But, as I said, this is an all too often heard story, both by the Tribunal and, I am sure, by the Public Trustee, and, in all of the administration actions in which the Public Trustee is appointed, in my experience, it is often the case that it is exactly these circumstances which necessitate the appointment of the Public Trustee in the first place.
Consequential to that is the need for the Public Trustee to often make an on-balance decision about what is in the best interests of the adult. In WWR’s case, I am told that his remaining finances are stable and that he has sufficient monies to fund his needs, going forward. This is, of course, no excuse and/or no reason to not pursue his daughter, but the reality is that she simply does not have anything that is going to pay her father back.
The Public Trustee comes to the Tribunal, seeking advice, directions, or recommendations, and a direction that this decision is an appropriate decision. It is, of course, an appropriate decision. In all of the circumstances that I have seen, even ignoring the legal advice that has been filed, there is no other sensible action that could be taken by the Public Trustee at this time, in these circumstances.
But whether this Tribunal is minded to make an order, under section 138, is a separate issue. It seems to me that, in making a direction – a binding direction – on the Public Trustee, first of all, I narrow the Public Trustee’s ability to act as an independent administrator, because circumstances might change. If I make an order today that says ‘you do not have to pursue WWR’s daughter’, perhaps things might change in the future, necessitating some sort of application to lift the direction.
Even if I was minded to give advice or recommendations, what would be the point, in circumstances where there is only one action that is sensible and clear on the current circumstances, and that is the one the Public Trustee’s already decided to take?
I am also concerned that, by making an order under this section – and traditionally, there have been very limited circumstances in which these orders are made – I actually become the administrator for WWR, not the Tribunal, who ensures that the current administrator is appropriate and competent, and, thereby, fettering the discretion of the administrator in circumstances where this action appears simply not necessary.
There have been, traditionally, and no doubt will be in the future, circumstances in which it is very appropriate for such an order to be sought. However, even in those circumstances – for example, where there is perhaps potentially more than one option open to the Public Trustee to move forward, high conflict within a family and it may well be appropriate for other family members (particularly ones opposing the action of the Public Trustee) to have a forum in which their concerns are expressed – even then, it has been my practice and, I suspect, the practice of the Tribunal’s Members generally to only make advice or recommendations, rather than to direct in a binding way the Public Trustee to take a particular action.
In this particular matter, I see no reason why I need to direct, advise or recommend the Public Trustee to take an action that is, in all the circumstances, first of all, the only one currently available that makes any sense and, secondly, a very appropriate decision already.
With that in mind, I decline to exercise my discretion under section 138 and will dismiss that application.
Turning to the other orders – applications that have been made for a closure order, a non-publication order and a confidentiality order. These applications also gave me some concern because they revolve around two pieces of advice, one from the Official Solicitor to the Public Trustee and the other from Counsel to the Official Solicitor, the second pre-dating the first. The Counsel’s advice was advice to the Official Solicitor on 10 November 2017 followed up by an advice from the Official Solicitor to the Public Trustee, in large form based on the advice received from a very eminent and senior counsel about bringing this application, amongst other things.
These documents have been provided to the Tribunal. I eschew using the word ‘filed’ because the state of documents or the status of documents under the Guardianship and Administration Act is potentially a little undetermined. It is not certainly as clear-cut as, say a document filed in other jurisdictions. And if I look at section 130, I can see, without taking this matter too far, that the inquisitorial nature of these proceedings means that section 130, subsection (3) requires the Tribunal to order a person to give information or material.
I do not need today to make a determination of how those words should be interpreted but to give information is clearly different, potentially in some way, to the drafters of this legislation using the word ‘file’ in the Tribunal. And I do wonder whether there was a conscious decision to change the wording because of the inquisitorial nature of the proceedings but that’s a matter for another day and not a decision I need to make today.
What I am faced with is two documents that would normally attract legal professional privilege that have been ‘filed’ in the Tribunal that the Public Trustee now seeks to have made confidential. Now, this is a court of record. There are circumstances under which parties can, even in this jurisdiction, inspect the file of an adult and the definition of the Tribunal as a court of record is an accepted one now under the Queensland case law.
So what to do. On one hand, I do not, myself, believe these documents should have been filed. I can understand that they may have been brought to the hearing. I can understand that if the Member requested, there may have been a need to give in broad outline the tenor of the advice so that the Member has some comfort that the matter has been looked at carefully within the organisation. But to actually file the advice, I don’t understand that step. However, that’s what’s been taken and that’s what I must deal with.
The application for a closure order – section 107
All of these applications are aimed to ensure that WWR’s errant daughter does not have the availability of the information within the opinions or access to this hearing so that she can take some comfort from the fact that the Public Trustee at this point will not pursue her. I am told that there may be some criminal actions – a criminal complaint to the police. That is a matter for the police service. But I do take the point that she appears, on the face of it, to have very badly wronged her father and I do not see the point in allowing that sort of comfort to someone in her position or allow her to feel that she has profited by her administration, even for the short time that she was his administrator. WWR’s daughter is not at this hearing. In terms of section 107, it is therefore unnecessary for me to close the hearing or part of the hearing or exclude a person and that application will be dismissed.
The other applications – the confidentiality order and the non-publication order
WWR’s daughter can ask the Tribunal to provide a CD of these proceedings. She can also, at this point, even though I would not classify her as either an active or interested party in WWR’s life now, ask to view the file. In all of the circumstances, allowing that I do not believe I can give these documents back to the Public Trustee because they have been provided to the Tribunal, reluctantly, but because of the comfort this may give to WWR’s daughter I will today make a confidentiality order and a non-publication order.
A copy of these reasons will be provided to the Public Advocate as is required whenever an order under these sections is made in a final hearing. I do see that it is necessary to not so much avoid serious harm but, certainly, injustice to WWR under sections 108 and 109 to allow his daughter to have any comfort from her actions, even though WWR’s medical circumstances are such that he may not be cognisant of the fact that his daughter has taken these actions against him.
So the orders of the Tribunal today will be that pursuant to section 108, a non-publication order will be made of the written submissions of the two sets of advices – two advices that I have spoken about, the advice of the Official Solicitor to the Public Trustee of 8 March 2017 and prior to that the advice of Counsel to the Official Solicitor dated 10 November 2017.
In terms of section 109, I will order that those two documents are withheld from an active party or other person, a confidentiality order made under that section, and declare that both of these advices are confidential.
So I will order pursuant to section 109 that the following documents are confidential and must not be disclosed and they will be the two advices that I have just advised. And the non-publication order will simply say that publication of information about those two advices is prohibited.
Orders
The orders are as follows:
1. The application for advice, directions and recommendations for WWR is dismissed.
2. The Tribunal orders that pursuant to s 108 of the Guardianship and Administration Act 2000 (Qld) publication of information about the following advices is prohibited:
(a)Advice from Counsel to the Official Solicitor of the Public Trustee of Queensland dated 10 November 2017; and
(b)Advice of the Official Solicitor of the Public Trustee to The Public Trustee of Queensland dated 8 March 2018.
3. The Tribunal orders that pursuant to s 109 of the Guardianship and Administration Act 2000 (Qld) the following information/documents are confidential and must not be disclosed:
(a)Advice from Counsel to the Official Solicitor of the Public Trustee of Queensland dated 10 November 2017; and
(b)Advice of the Official Solicitor of the Public Trustee to The Public Trustee of Queensland dated 8 March 2018.
4. The application for a closure order for WWR is dismissed.
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