YE

[2009] QCAT 14

CITATION:    YE [2009] QCAT 14

PARTIES:      YE

APPLICATION NUMBER:             GAA7215-09 GAA7820-09

MATTER TYPE:    Guardianship and administration matters

HEARING DATE:   15 December 2009

HEARD AT:   Brisbane

DECISION OF:   C Endicott, senior member

DELIVERED ON:   15 December 2009

DELIVERED AT:   Brisbane

ORDERS MADE:    Leave for legal representation refused

CATCHWORDS:  Leave sought for legal representation – where no complex questions of fact and law.

APPEARANCES and REPRESENTATION (if any):

Hearing on the papers in the absence of the parties

REASONS FOR DECISION

[1]Applications were made to the Guardianship and Administration Tribunal on 21 October 2009 by the Adult Guardian seeking the appointment of a guardian and administrator for YE.   On 19 November 2009 a further application was made to the Guardianship and Administration Tribunal by the Adult Guardian seeking a declaration about the capacity of YE to enter into financial transactions on 13 December 2007.

[2]From 1 December 2009 the Queensland Civil and Administrative Tribunal (the Tribunal) has been invested with jurisdiction to determine applications made under the Guardianship and Administration Act 2000 in place of the Guardianship and Administration Tribunal which has been abolished. 

[3]The applications have been listed for hearing before the Tribunal in a regional city on 17 December 2009.  One of the active parties in the applications is YD who is the attorney for financial matters for YE.

[4]After 5pm on 14 December 2009 solicitors instructed by YD lodged an application with the Tribunal seeking leave to represent YD on the hearing of the applications.  The application seeking leave did not specify the grounds on which leave was sought. 

[5]A request was made by registry staff at the Tribunal for submissions to support the application for leave.  On 15 December 2009 the solicitors for YD provided written submissions in support of the application for leave. 

[6]Section 43 of the Queensland Civil and Administrative Tribunal Act 2009  provides, where relevant to these reasons, as follows:

(1) The main purpose of this section is to have parties represent

themselves unless the interests of justice require otherwise.

(2) In a proceeding, a party—

(a) may appear without representation; or

(b) may be represented by someone else if—

(i) the party is a child or a person with impaired

capacity; or

(ii) the proceeding relates to taking disciplinary action,

or reviewing a decision about taking disciplinary

action, against a person; or

(iii) an enabling Act that is an Act, or the rules, states

the person may be represented; or

(iv) the party has been given leave by the tribunal to be

represented.

(3) In deciding whether to give a party leave to be represented in a

proceeding, the tribunal may consider the following as

circumstances supporting the giving of the leave—

(a) the party is a State agency;

(b) the proceeding is likely to involve complex questions of

fact or law;

(c) another party to the proceeding is represented in the

proceeding;

(d) all of the parties have agreed to the party being

represented in the proceeding.

[7]According to subsection 1 of section 43, parties are expected to represent themselves in proceedings before the Tribunal. Legal representation is not permitted as of right but leave is required for parties to be legally represented in cases where the interests of justice require the parties to be represented.

[8]Subsection 3 of section 43 provides some guidance to the Tribunal when considering whether to grant leave. One of the factors that the Tribunal may take into account is whether the proceeding is likely to involve complex questions of law or fact.

[9]In their submissions, the solicitors for YD addressed that factor in the following terms: One of the significant considerations in determining whether legal representation should be granted is whether or not there are complex legal or factual issues.  Here, the factual issues are complex and the legal issues require careful consideration and have significant ramifications.    

[10]The submissions did not identify which factual issues were complex.  The proceedings involve financial transactions conducted in 2007 by YE in relation to real property valued at $14 million.  The fact that the transactions took place is not in dispute.  The capacity of YE to enter into the transactions is in dispute. 

[11]The factual basis of the issue of capacity will be informed by medical and other evidence.  Evidence already provided to the Tribunal includes assessments conducted of YE’s cognitive functioning in November 2006 as well as subsequent reports by her doctor and a clinical nurse from an Aged Care Service.  It is expected that the parties attending the hearing, including YE, will provide factual evidence relevant to the issue of capacity.  

[12]There is nothing on the Tribunal file to support the contention that the factual issues are complex.  It is an everyday task for the Tribunal to make determinations about an adult’s capacity.  The financial transactions conducted in 2007 are complex but they are not in dispute.

[13] The Tribunal is not satisfied that the task of determining the capacity of YE to enter into the transactions has been rendered any more difficult just because the transactions involve property valued at $14 million.  It is the evidence of her capacity to enter into those transactions which is to be considered, not the complexities of the transactions themselves.  The Tribunal is not satisfied that the proceeding is likely to involve complex questions of fact. 

[14] The solicitors submitted that the legal issues require careful consideration and have significant ramifications.  The particular legal issues were not identified in the submissions.  The issues central to the determination of the applications are the capacity of YE to enter into the transactions in 2007, her current decision making capacity, whether there is a need to appoint a guardian and administrator for YE and who would be appropriate appointees to those roles. 

[15]These issues are every day issues determined by the Tribunal and receive careful consideration on every occasion.   The solicitors for YD have failed to identify any complex questions of law to support their application for leave to represent YD at the hearing.  The Tribunal is not satisfied that the proceeding is likely to involve complex questions of law. 

[16]The submissions state that the engagement of a legal representative will bring objectivity to the Tribunal’s decision making process and this would be of assistance to the Tribunal.  This is a curious submission given that the professional responsibility of a legal representative is to further the interests of his client.  

[17]The decision making process of the Tribunal is prescribed by the Queensland Civil and Administrative Tribunal Act 2009  and in accordance with section 28  the Tribunal must act fairly, must act in accordance with the substantial merits of the case and must observe the rules of natural justice.  The hearings are open to the public and reasons are given for the decisions made by the Tribunal.  The Tribunal is not satisfied that its processes will be enhanced by objectivity in the event that legal representation is engaged by a party to the proceeding. 

[18]The final submission stated a concern that the representatives of the Adult Guardian and the Public Trustee may take advantage of their superior knowledge of the relevant legislation causing YD to be prejudiced should he be required to be self represented.  This proceeding is about YE.  The hearing will consider evidence about her capacity to enter into transactions in 2007 and her current decision making capacity. 

[19]The focus of the legislative substituted decision making process in which the Tribunal is involved as the determiner of an adult’s capacity and of her need for support is necessarily on the adult.  It is contended that she is vulnerable due to an impaired decision making capacity.  The role of other persons in the proceeding is to assist the Tribunal to make appropriate determinations about the adult.   The Tribunal values the assistance provided to the Tribunal by the Adult Guardian and the Public Trustee in making submissions about the appropriate determination to make about a vulnerable adult in a hearing. 

[20] The Tribunal is not convinced that YD will be prejudiced in being self represented in a hearing that is to determine issues about YE.  He will have an opportunity to be heard and to participate in the hearing to the same extent as any other active party. 

[21]Taking into account all of the submissions made by YD’s solicitors, the Tribunal is not satisfied that the interests of justice require him to be legally represented on the hearing of the applications.  The application for leave to be represented is dismissed.