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  • Unreported Judgment

LN v LSS

 

[2020] QCATA 18

QUEENSLAND CIVIL ANDADMINISTRATIVE TRIBUNAL  

CITATION:

LN & Anor v LSS & Ors [2020] QCATA 18

PARTIES:

LN

LG

(applicants/appellants)

v

LSS

LER

PUBLIC TRUSTEE OF QUEENSLAND

PUBLIC GUARDIAN

(respondents)

APPLICATION NO/S:

APL024-19 

ORIGINATING APPLICATION NO/S:

GAA7512-16; GAA1886-17; GAA1887-17; GAA484-18

MATTER TYPE:

Appeals

DELIVERED ON:

6 February 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding

Member Fitzpatrick

ORDERS:

  1. The time for filing the application for leave to appeal or appeal, dated 18 January 2019, is extended to 22 January 2019.
  2. All parties are granted leave for legal representation in the proceedings APL024-19.
  3. Until further order of the Appeal Tribunal, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of any information about any guardianship proceedings and Appeal Tribunal proceedings concerning LER that is likely to lead to the identification of LER by a member of the public, or by a member of the section of the public to whom the information is published, is prohibited.
  4. Leave to appeal is granted to LG and LN.
  5. LG and LN have standing to conduct an appeal in this matter.

6. (a) Mr Peter Sheehy is appointed as separate representative for the adult, LER; and

(b) his reasonable fees to be paid by the Public Trustee from LER’s funds, under s 138 of the Guardianship and Administration Act 2000 (Qld)

CATCHWORDS:

APPEAL AND NEW TRIAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHO MAY EXERCISE RIGHT – OTHER PERSONS ENTITLED - standing - where applicants not eligible persons and do not have standing to appeal in the absence of leave to appeal - where modifying provision - whether leave to appeal should be granted – whether reasonably arguable case of error - whether leave necessary to correct a substantial injustice caused by error

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – whether leave to appeal should be granted – whether reasonably arguable case of error – whether leave necessary to correct a substantial injustice caused by error

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF  PROPERTY OF PERSONS WITH IMPAIRED CAPACITY GUARDIANSHIP AND SIMILAR APPOINTMENTS – OTHER MATTERS - where applicants not eligible persons and do not have standing to appeal in the absence of leave to appeal

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – ORDERS – NON-PUBLICATION OF IDENTITY – where guardianship and administration – where publication has already occurred – whether non-publication order should be granted 

Guardianship and Administration Act 2000 (Qld), s 163(3)(viii)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3)

Amundsen v Queensland College of Teachers QCATA 2 [2011]

GDLA v GMG [2017] QCATA 18

HFI [2018] QCAT 279

John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 Qd R 302

LER (no 2) [2018] QCAT

LSS v LN, LG & Public Guardian [2016] QCATA 133

Pickering v McArthur [2005] QCA 294

Queensland Police Service v ZIL [2019] QCATA

Re JT [2014] QSC 163

Seymour v Racing Queensland Ltd [2013] QCATA 179

State of Queensland v Ali [2014] QCATA 14

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    The applicants have filed an application for leave to appeal or appeal a Decision dated 17 December 2018, in particular in respect of one application GAA484-18 (the Decision). The Decision changed the terms of appointment of the Public Guardian as guardian for the adult, LER. The change to the terms of appointment means that the Public Guardian is no longer appointed with respect to two personal matters for which it had previously been appointed – accommodation and the provision of services. The Public Guardian was appointed guardian for decisions relating to health care, contact or visits and legal matters not relating to property or finances.
  2. [2]
    The applicants, LN and LG, are daughters of LER. They appeared as interested parties at the hearing giving rise to the Decision the subject of the application for leave to appeal or appeal. 
  3. [3]
    Unless the Appeal Tribunal grants leave to LN and LG, they have no standing to appeal against the Tribunal’s Decision, because they are not otherwise eligible persons as defined in s163(3) of the Guardianship and Administration Act 2000 (Qld) (GAA). 
  4. [4]
    By directions made 13 March 2019, the following matters were required to be addressed by the parties:
    1. (a)
      the filing of any applications and submissions in relation to legal representation in the proceeding;
    2. (b)
      submissions concerning whether a non-publication order should be made in the proceeding, and if so, the terms of any order to be made on a final basis;
    3. (c)
      whether the application for leave to appeal or appeal was filed out of time;
    4. (d)
      the proper approach to determining the issue of standing as it relates to LN and LG’s eligibility to bring the application for leave to appeal or appeal;
    5. (e)
      whether Mr Peter Sheehy should be appointed as the separate representative for LER in the appeal proceedings. 
  5. [5]
    These matters are to be determined by a hearing on the papers.
  6. [6]
    Subsequently, by directions made 6 August 2019 the parties were required to file further submissions as to whether leave to appeal should be granted  and for that application to be decided also on the papers. An application for an extension of time to comply with these directions was later filed and granted. Hence, there has been some delay in determination of the various applications.  
  7. [7]
    The Public Guardian:
    1. (a)
      makes no submissions in relation to the standing of the applicants;
    2. (b)
      makes no submissions as to whether leave to appeal should be granted;
    3. (c)
      makes no submissions as to whether the application for leave to appeal or appeal was filed out of time;
    4. (d)
      supports the appointment of Mr Sheehy as a Separate Representative to represent LER’s views, wishes and interests; and
    5. (e)
      asserts the need for a non-publication order in the proceeding.
  8. [8]
    The Public Guardian filed an application to be legally represented in the proceeding. The Public Guardian does not object to any other party being legally represented in the proceedings.
  9. [9]
    The Public Trustee:
    1. (a)
      does not wish to add to the submissions advanced by the other parties on the applicants’ standing nor in relation to whether the application was filed out of time and whether an extension of time should be granted;
    2. (b)
      makes no submissions as to whether leave to appeal should be granted;
    3. (c)
      has no objection to the appointment of Mr Sheehy as a separate representative for LER;
    4. (d)
      does not wish to be legally represented whilst the issues were as presently raised and the matters the subject of the Directions of 13 March 2019 are to be determined on the papers; ...
  10. [10]
    Mr Sheehy was the appointed separate representative in the proceeding below. He was given notice of the appeal proceedings and invited to make submissions about the need for an appointment of a separate representative in the appeal proceedings. He submits that there is a legitimate reason for the adult to have separate representation. He made no submissions in relation to any other matter.
  11. [11]
    The applicants, LN and LG, and the respondent LSS, who is the wife of LER, have responded to the directions. They all sought leave to be legally represented.

Legal Representation

  • [12]
    We accept that the appeal proceedings involve some complexities sufficient to justify orders, in the interests of justice, granting leave to the parties for legal representation.  Leave is granted to the all parties to be legally represented in the proceedings APL02419.

Non-publication order

  1. [13]
    A non-publication order was made previously until further order. We consider it appropriate to make a further order pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). 
  2. [14]
    Guardianship proceedings, by their nature, involve consideration of intimate details that would otherwise be confidential relating to the health, finances and personal arrangements for the adult concerned. For that reason, the GAA, while providing generally for open hearings, nevertheless imposes limits on publication of information about a guardianship proceeding about an adult that is likely to lead to the identification of the relevant adult and for the making of various types of limitation, non-publication orders and closure orders: ss 100, 104, 105, 106-109; and 114A. Also, the General Principles to the GAA contained in Schedule 1, that must be applied by the tribunal,[1] include respect broadly for an adult’s dignity,[2] and privacy by way of confidentiality of information.[3] 
  3. [15]
    In LER’s case publication of some of his private information in the public arena has already occurred.
  4. [16]
    We are satisfied that in this appeal proceeding, arising from guardianship proceedings, that to avoid interfering with the proper administration of justice; to avoid the publication of confidential information; or information whose publication would be contrary to the public interest, or otherwise in the interests of justice generally, a nonpublication order should be made pursuant to s 66 of the QCAT Act.[4] Further, it is in keeping with the recently commenced Human Rights Act 2019 (Qld), right to privacy.
  5. [17]
    Accordingly, for the purpose of all proceedings arising out of this application for leave to appeal or appeal, we order as follows:

Until further order of the Appeal Tribunal, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of any information about any guardianship proceedings and Appeal Tribunal proceedings concerning LER that is likely to lead to the identification of LER by a member of the public, or by a member of the section of the public to whom the information is published, is prohibited.

Was the application for leave to appeal or appeal filed out of time?

  1. [18]
    LSS submits that the application for leave to appeal or appeal was filed outside the 28 day time limit and that no extension of time should be granted.[5] LN and LG’s lawyer explains that the reasons for the Decision were received by email on 21 December 2018 after its office had closed for the Christmas break. Therefore, 18 January 2019 was the final day for filing the application for leave to appeal or appeal. The application was sent by email to the Tribunal on that day. An unsuccessful filing attempt was made at the registry on 21 January 2019. The application was ultimately filed in the registry together with payment of the filing fee on 22 January 2019.
  1. [19]
    LN and LG do not concede that the application was filed out of time, given the emails of 21 December 2018 and 18 January 2019. A formal application has not been filed seeking an extension of time for filing of the application for leave to appeal or appeal. However, the Appeal Tribunal made directions requiring submissions about the issue and in their submissions dated 8 April 2019 the applicants seek leave for extension of the filing date of the application for leave to appeal and appeal to 22 January 2019. 
  2. [20]
    By s 61 of the QCAT Act the tribunal may extend a time limit fixed for the start of a proceeding. An extension may be granted even if the time for complying with the relevant requirement has passed.
  3. [21]
    The tribunal cannot extend time if to do so would cause prejudice or detriment not able to be remedied by an appropriate order for costs or damages to a party or potential party to a proceeding. In the exercise of its discretion, the tribunal must consider the length of the delay, the reasons for it, the prospects of a successful appeal and the degree of prejudice to the other party. The tribunal must also bear in mind the reasons for a limitation regime intended to bring finality to litigation.[6]
  4. [22]
    Until the filing fee has been paid, an application for leave to appeal or appeal cannot be treated as filed.[7]Accordingly the application was filed 4 days outside the limitation period.
  5. [23]
    There is no evidence of any prejudice suffered by any respondent as a result of the short delay. We are satisfied that the applicants’ lawyers used their best endeavours to file the application within time. We do not consider the applicants grounds of appeal to be inarguable, so as to justify a refusal to extend time for filing the application. We consider that in all of the circumstances of this case involving human rights, it is in the interests of justice to enable all relevant and fairly arguable matters to be ventilated. We grant leave extending the time for LN and LG to file the application for leave to appeal or appeal in this matter to 22 January 2019.

Standing of applicants to commence the proceeding

  1. [24]
    The Queensland Civil and Administrative Appeals Tribunal has previously found in a matter involving these same parties that the procedure for determining standing in a case such as this, is to first consider whether leave to appeal should be granted.[8] If leave is granted LN and LG will have standing to pursue any appeal.[9] 
  2. [25]
    By s 143 of the QCAT Act, a person may apply for leave to appeal or appeal against a decision of the Tribunal. Relevantly the application must state the reasons for the application or appeal. The QCAT Act contemplates that appeals may be decided on a question of law only, on a question of fact only or a question of mixed law and fact. An appeal on a question of law only is as of right and no leave to appeal is required under the QCAT Act. Otherwise, by s 142(3)(b) of the QCAT Act leave to appeal is required. It has been held that is not part of the appeal tribunal’s function to subject grounds asserting an error of law to a requirement to obtain leave which the statute does not impose.[10]
  3. [26]
    That said, whether or not leave to appeal is otherwise required pursuant to the QCAT Act, it is here required by operation of a modifying provision, namely, s 163(3)(iii), of the GAA in respect of an applicant for leave to appeal or appeal who does not otherwise have standing. We adopt that procedure.
  4. [27]
    For the reasons explained in the following paragraphs, leave to appeal is granted. Hence, LN and LG have standing.

Application for leave to appeal

(i) LN and LG’s grounds of appeal and arguments for leave

  1. [28]
    LG and LN seek leave to appeal against order 9 in the Decision. Order 9 is in the following terms:

‘The guardianship order made by the Tribunal on 30 October 2014 is changed by appointing the Public Guardian as guardian for LER for decisions about the following personal matters:

  1. (a)
    with whom LER has contact and/or visits;
  2. (b)
    healthcare; and
  3. (c)
    legal matters not relating to the adult’s financial or property matters.’
  1. [29]
    LG and LN allege an error of law insofar as order 9 does not appoint the Public Guardian for decisions in relation to accommodation and the provision of services. In particular, they submit that they were denied natural justice in circumstances where:
    1. (a)
      at the date of the hearing on 12, 13 February 2018 and 17 May 2018 the Public Guardian was appointed for personal matters for the adult including accommodation, with whom the adult had contact, and/or visits; healthcare; provision of services; and legal matters not relating to the adult’s financial or property matters, having been so appointed on 30 October 2014;
    2. (b)
      the applicant LSS applied to review the appointment of the Public Guardian but sought leave to withdraw her application at the hearing;
    3. (c)
      the Member did not grant leave and the application was treated as remaining on foot;
    4. (d)
      LG, LN and LSS conceded that the appointment of the Public Guardian should remain;
    5. (e)
      the Member did not indicate that the terms of the appointment of the Public Guardian were under consideration by her;
    6. (f)
      there was no application before the Tribunal for paragraph 1 of the order made on 30 October 2014 to be changed;
    7. (g)
      LG and LN did not make submissions in relation to the terms of the appointment of the Public Guardian as it was not made known to them that the Member was considering the terms of appointment of the Public Guardian and that the terms of paragraph 1 of the order made on 30 October 2014 may be changed; ...
  2. [30]
    LG and LN seek leave to appeal against order 9 in respect of the following errors of fact, or fact and law, made by the Tribunal:
    1. (a)
      that the Tribunal made an error by finding that, without the appointment of a guardian for decisions in relation to accommodation and the provision of services, there is no unreasonable risk to the adult’s health and welfare;
    2. (b)
      the Tribunal made an error by finding that the adult’s needs would be adequately met and his interests adequately protected without the appointment of a guardian for decisions in relation to accommodation, and the provision of services (in addition to contact, health, and legal decisions not affecting the adult’s financial or property matters);
    3. (c)
      that the Tribunal made an error of fact by finding that there is no evidence that the adult requires an accommodation decision or outside support services.
  3. [31]
    The grounds of appeal are expressed in similar terms to their arguments for leave to appeal.
  4. [32]
    The order sought is that order 9 be amended to provide that paragraph 1 of the guardianship order made by the Tribunal on 30 October 2014, is not changed and that the Public Guardian is appointed for decisions about the following personal matters:
    1. (a)
      with whom LER has contact and/or visits;
    2. (b)
      healthcare;
    3. (c)
      accommodation;
    4. (d)
      provision of services;
    5. (e)
      legal matters not relating to the adult’s financial or property matters.

(ii) The Tribunal’s reasons for the Decision

  1. [33]
    The Decision dated 17 December 2018 contained orders in respect of the following four applications:
    1. (a)
      an application for review of the appointment of an administrator;
    2. (b)
      an application for directions filed by the Public Trustee in relation to an amount, if any, to be advanced to LER for bathroom renovations;
    3. (c)
      an application for directions filed by the Public Trustee seeking directions as to the amount to be advanced to LER for the purchase of a new Range Rover motor vehicle; and
    4. (d)
      an application for the review of the appointment of a guardian.
  2. [34]
    The parties agreed that evidence in one application was relevant to each other application.
  3. [35]
    In the course of the proceedings LSS informed the Tribunal that she no longer wished to pursue her application to review the appointment of the Public Guardian. As the appointment of the Public Guardian had the potential to be affected by information to be provided by the parties and any further medical evidence concerning LER’s capacity, leave to withdraw the application was not granted and so the application remained on foot for determination.[11]
  4. [36]
    The Member noted at paragraph [24] of the reasons for Decision, that the Tribunal had been placed in a difficult situation, where a statutory presumption of capacity exists and yet LSS, the applicant for review, has not filed any current evidence as to LER’s capacity and is unwilling or unable to assist the Tribunal in obtaining any. The Member said that she did not find LSS credible in her explanations as to why so many directions relating to the examination of LER had not been complied with. The Member was prepared to infer that steps were taken to prevent LER being examined because she was concerned what those consultations might reveal.
  5. [37]
    The Tribunal had access to medical records (obtained pursuant to directions to LSS and notices to produce issued by the Tribunal following reference to LER’s Medicare records), the evidence of LSS and the transcript of the 2014 capacity assessment.
  6. [38]
    The Tribunal found that LER had impaired capacity for decision-making about financial matters.[12] It found that LER was not able to freely and voluntarily make decisions,[13] nor to understand the nature and effect of financial decisions.[14] The Member was satisfied that LER has impaired capacity for financial decision making. 
  7. [39]
    The reasons for the Decision made 17 December 2018 record at [78] that on the final day of the hearing the Tribunal provided an opportunity to the parties to make oral submissions in relation to review of the appointment of the guardian. Both Counsel for LN and LG and Counsel for LSS conceded that the Public Guardian should remain.
  8. [40]
    Counsel indicated to the Tribunal that LG, LN and LSS did not wish to interfere with the terms of the appointment of the Public Guardian. The transcript records the following:

‘MR LIDDY:   Albeit that if there’s a review pursuant to the terms of the Act, it seems that on each time we come before the Tribunal, the Tribunal normally would exercise its decision making power anew, both to satisfy itself as to capacity, which is the common issue in this case with the financial administration, we would say, and as there’s no other alternative put forward, it may be that’s a new appointment of the public guardian, but no alternative is being put forward by anybody else.

MEMBER:   Right.

MR GERBER:   And that remains the position, save that, I think, in your reasons, Member, you explained why it was still a live issue, even though it had been conceded by (LSS), but it wasn’t pursued.

MEMBER:   All right.  So the application then does need to be considered, but it’s not contested.  The appointment of the public guardian is accepted.

MR LIDDY:   That’s so.

MEMBER:   Yes.  And that’s not under review.  All right.  So that leaves us then – so do I take it from that that no party – none of the parties wish to address on that application.

MR GERBER:   That’s my position.

MR WHITEFORD:   The public trustee has no submissions on it.’

  1. [41]
    The learned Member found that the presumption of capacity for personal matters has been rebutted and that appropriate grounds otherwise exist for the appointment of the Public Guardian to continue. The Member said that in arriving at that view, she relied on the evidence about capacity in relation to review of the appointment of an administrator. The learned Member also said that while capacity is “matter specific” in the sense that a person with impaired capacity for financial decisions may have capacity for personal matters, she was satisfied that LER also has impaired capacity for decisions about certain personal matters.[15] The Member found that was so in relation to the persons with whom he has contact, health care and legal matters.[16] In particular, she found that LER’s will is susceptible to being overborne in respect of those matters. For this reason, in addition to the evidence generally regarding capacity, the Member’s view was that LER has impaired capacity for decisions regarding personal matters.[17]
  2. [42]
    The learned Member noted the Public Guardian’s submission that its appointment had been fruitless. The Public Guardian had been unable to engage with LER regarding his healthcare nor in relation to contact with his daughters and grandchildren. Despite this the Member did not think this was a reason to change the terms of the appointment of the Public Guardian for healthcare, contact and legal matters not relating to property or finances. 
  3. [43]
    Then at paragraph [85] of the reasons for decision, the learned Member made these findings:

‘(a) Accommodation: LER lives in his home with LSS and as they are planning renovations it does not appear that there is a need for any decision regarding accommodation to be made or that without a decision there would be an unreasonable risk to LER’s health, welfare or property;

(b) The provision of services: there is no evidence that LER requires or uses any outside support services. The Public Guardian reports that LSS has refused all attempts to engage LER with supports and has said that they engage in lots of activities outside the house. In view of this I am not satisfied that there is a need for a decision to be made or that without a decision there would be an unreasonable risk to LER’s health, welfare or property.’

  1. [44]
    The learned Member made an appointment continuing the appointment of the Public Guardian but changed the terms of that appointment so that the Public Guardian is appointed guardian for decisions relating only to healthcare, with whom LER has contact or visits and legal matters not relating to property or finances.
  2. [45]
    It is useful here to summarise the relevant matters for determination by the tribunal in determining the review. Pursuant to s 31 of the GAA, the tribunal must revoke its order making the appointment unless satisfied it would make an appointment if a new application for appointment was made.[18] If the tribunal is satisfied that there are appropriate grounds for an appointment to continue, it may continue its order making the appointment; or change it, for example, by changing the terms, removing an appointee; or making a new appointment.[19] 
  3. [46]
    Because the order must be revoked unless the tribunal would make an appointment on a new application for appointment, here of a guardian, in deciding a review application the tribunal must consider the matters specified for consideration if a new appointment is made. That is, in respect of an appointment of a guardian, an appointment may be made if three criteria are met.  They are as follows:
    1. (a)
      the adult has impaired capacity for decision-making for the relevant personal matter; and
    2. (b)
      there is a need for a decision about the matter or the adult is likely to do something in relation to the matter that involves (or is likely to) unreasonable risk to the adult’s health, welfare and property; and 
    3. (c)
      without an appointment, the adult’s needs will not be adequately met or interests adequately protected. 
  4. [47]
    Capacity for a matter is defined. To have the requisite capacity, a person must understand the nature and effect of decisions about a matter; and be able to freely and voluntarily make decisions about the matter; and communicate the decisions.[20]
  5. [48]
    It is then also useful to observe here that an understanding of the nature and effect and the consequences of the compliance or non-compliance with any recommendations for a person’s health conditions or any physical or mental limitations may be relevant in making accommodation and service provision decisions.

(iii) Submissions concerning Leave to Appeal and Standing

  1. [49]
    LG and LN’s first submissions addressed the procedure by which they might achieve standing to appeal. Their submissions filed on 11 October 2019 addressed leave to appeal. 
  2. [50]
    The applicants say that their complaint is in relation to the findings of fact upon which the Member relied in making the decision set out at paragraph [85] of the Decision. Further, the other ground of appeal, relating to an alleged breach of natural justice, concerns an alleged error of law.
  3. [51]
    The applicants submit, and we accept, that relevant matters for the Appeal Tribunal on an application for leave to appeal are: that there is a reasonably arguable case of error in the primary decision; there is a prospect that the applicant will obtain substantive relief; leave is necessary to correct a substantial injustice caused by error; and that there is a question of general importance upon which further argument and a decision of the Appeal Tribunal would be to the public advantage. 
  4. [52]
    LN and LG must sustain an application for leave to appeal, on one of these grounds.[21]
  5. [53]
    The applicants say that in making her decision, the learned Member did not take into account her earlier findings that LSS had deliberately withheld the adult from medical examination and that it could be inferred that LSS was concerned as to what those examinations might reveal.  
  1. [54]
    Further, the Member did not take into account her finding that the adult was unable to make decisions freely and voluntarily, that there was no evidence from LER the adult as to what he wants and that his will is susceptible to being overborne.
  2. [55]
    The applicants say that the Tribunal erred in making changes to the terms of appointment of the Public Guardian by removing certain of its powers because there was insufficient independent evidence relevant to that determination. Yet, the Member’s earlier findings were such that she should not have concluded there was no need for the Public Guardian to have appointments for accommodation and service provision.
  3. [56]
    In effect, these submissions claim that the Tribunal did not take into account relevant considerations. Failing to do so, if established, is an error of law.
  4. [57]
    The applicants specifically refer to the Member’s finding, that there is no evidence the adult requires an accommodation decision or outside support services, as an error of fact. We accept that categorisation of the ground of appeal. 
  5. [58]
    The applicants say that given findings as to the lack of credibility of LSS the Member should not have placed any weight upon the evidence of LSS in determining whether service provision was or was not necessary. We interpret this submission as a claim that by failing to give adequate weight to a relevant factor of great importance the decision is manifestly unreasonable and that an error of law has occurred.
  6. [59]
    The applicants say that in circumstances where the Member’s findings were, in effect, that LSS had undermined the Tribunal’s efforts to obtain information regarding the adult’s health and capacity and the adult’s wishes (through the separate representative); the adult’s wishes generally were overborne by LSS; and LSS was not credible in respect of relevant assertions to the Tribunal, it was not open for the Member to make the findings she made in relation to the adult’s needs and whether those needs were being adequately met or whether there was unreasonable risk to LER’s health, welfare or property. 
  7. [60]
    We agree with the applicants that the matters raised in their submissions are relevant considerations in relation to questions about whether decisions are necessary for LER for accommodation and provision of support services and/or in determining whether there was an unreasonable risk to health and welfare; or whether his needs were adequately protected. It is not clear from the reasons for the decision that these matters were considered and if so, how or if, they were taken into account.
  8. [61]
    Further, the Tribunal does not make findings (that would support its ultimate findings in conclusion and sought to be impugned in the appeal), to the effect that LER’s physical and other needs are met by his current accommodation or that he does not require support services in order to meet those needs. It is not to the point, respectively, that renovations are planned or that he engages in activities outside of the home. We understand that the Tribunal was significantly hampered by what it found were steps taken deliberately by LSS to frustrate its attempts to gain particular evidence, resulting in a protracted hearing process, and its direction requiring LER’s attendance at the hearing. However, that does not explain the basis for the Tribunal’s conclusions. 
  9. [62]
    LSS submits that the Member considered all the evidence before her, but without discussing all of the material facts in detail. LSS says that a failure to discuss all of the material facts in detail was not required and does not demonstrate that the Member erred in relation to those facts. We reject that submission on the basis that it is arguably an error of law for the Member not to set out the basis for her decision. LSS also describes in her submissions what she says to be the facts of the case established over the years. However, it is not for us to determine questions of fact on an application for leave to appeal. 
  10. [63]
    With her submissions filed on 1 November 2019, LSS provided additional fresh evidence. Importantly the further evidence was presented as part of the submissions which may address at least some of the concerns of the applicants in relation to LER’s health and welfare. Some of that evidence related to two visits to LSS and LER at their home, by the Queensland police and staff of the Office of Public Guardian. It is submitted that no adverse observations or findings were made arising out of the visits. The submissions contain hearsay evidence as to favourable statements made by Office of Public Guardian staff. 
  11. [64]
    No application has been made by any other party for leave to respond to these statements.
  12. [65]
    LSS attached four recent medical reports. Dr Mavis Kershaw, Psychologist, concluded in her report dated 19 November 2018, that LER was able to reason on matters, decide between options and express choice. Ms Leggett, Occupational Therapist in an undated report relating to sessions held between 28 March 2019 and 18 April 2019 recorded that LER demonstrated capacity to choose where to live and with whom, and to choose who he wants to help him. He expressed a view that he did not want to live in a nursing home. Ms Leggett concluded that LER is safe living with his wife in their own home and that he does not need residential care. Mr McLaren, Psychiatrist concluded in his report dated 24 May 2019 that there is no reason for LER to be moved to supported accommodation, that to do so would reduce the quality of his life and shorten his life. Dr E Stewart, Clinical Psychologist reported on 23 October 2019 following a recent therapy session that LER has been making good progress to address his anxiety and stress reactions, with the help of his wife. He becomes stressed when discussing QCAT hearings. It was suggested that because of LER’s anxiety, putting him through assessments may not yield valid results. However, we make the observation that it appears from the reports that LER has been given to understand by someone that LN and LG want a decision made for him to be placed into residential aged care. 
  13. [66]
    None of the medical reports have been admitted into evidence in the proceedings and their authors have not been cross-examined in relation to their observations and conclusions.
  14. [67]
    The reports and other evidence should properly be dealt with by an application for leave to rely upon fresh evidence for use in the appeal.

Findings

  1. [68]
    We find that there is a reasonably arguable case of error of law. Leave to appeal is required by LN and LG because of the modifying provision discussed earlier in respect of the alleged error of law.
  2. [69]
    Insofar as there are questions of fact or mixed fact and law, they are closely tied to the questions of law we have referred to. They are reasonably arguable questions. 
  3. [70]
    On the basis of the preceding analysis as to whether the grounds relied upon by the applicants relate to errors of law or fact or mixed questions of law and fact, we reject LSS’s submission that errors of fact are not demonstrated.
  4. [71]
    We find that leave to appeal should be granted in respect of these grounds.

Error of law – denial of natural justice no submissions able to be made

  1. [72]
    The applicants set out, in their grounds for leave to appeal, a complaint that they did not know the Member intended to interfere with the existing appointment of the Public Guardian and that they were denied an opportunity to make submissions in relation to that appointment.
  2. [73]
    LN and LG say that in removing the Public Guardian’s powers in relating to service provision, the Member failed to take into account the medical evidence filed pursuant to the direction of the Tribunal and detailed submissions made by the applicants. In particular the applicants say they were denied the opportunity to direct the Member’s attention to incontinence issues and that the adult would benefit from service provision directed at monitoring the management of his incontinence issues.
  3. [74]
    In addition the applicants were denied the opportunity to address the learned Member in relation to the ongoing risks to living arrangements, isolation from family and others and a resistance to allowing the adult to come into contact with the separate representative Mr Sheehy. 
  4. [75]
    LSS submitted, in her submissions dated 24 April 2019, that the Member was entitled to review the appointment of the Public Guardian and that the applicants could have given evidence and made submissions in support of their position as far as accommodation matters for LER were concerned.  LSS submits that insofar as the applicants assert a denial of natural justice that cannot form the basis for an appeal unless it forms part of a reasonable basis upon which to conclude that an error of fact or an error of fact and law have been made by the Tribunal. LSS says that no error of fact or fact and law has been established.
  5. [76]
    In answer to LSS’s submission, to the extent no submissions were made as to whether the adult required an accommodation decision or support services, it is possible that the Member was lead into making an error of fact. In any event, it is an error of law for a tribunal to fail to observe natural justice.

Findings

  1. [77]
    Denial of natural justice is an error of law,[22] for which no leave to appeal is generally required under the QCAT Act. However, once again, leave to appeal is required due the effect of the modifying provision earlier discussed.
  2. [78]
    We are satisfied that there is an arguable case of a denial of natural justice. When invited to make oral submissions in relation to the terms of appointment of the Public Guardian, LN and LG and LSS said that they did not wish to interfere with the Public Guardian’s appointment. The learned Member did not tell the parties that there was a possibility the terms of appointment may be changed following review. Indeed, it appears from the extract from the transcript discussed earlier that the learned Member confirmed that there was no issue about the then current appointment.  
  3. [79]
    That said, the parties contemplated the review. Possibly they should have realised that the review may result in changes to the terms of appointment and should have taken up the opportunity to make submissions as to why the terms of appointment should not be changed. In the end we think that the parties may have been misled into thinking that no submissions were necessary. In any event, whether the parties might have done so, it was the responsibility of the Tribunal to afford them natural justice, not for the parties to second-guess the Tribunal’s statement that there was no issue. Of course, the Tribunal was obliged to consider all relevant matters on a review including whether the terms of the appointment should be changed based on the prescribed matters in the GAA but it should have pointed out that it was minded to change the terms to give the parties a reasonable opportunity to make submissions.
  4. [80]
    We are satisfied that there is a reasonably arguable case of an error of law such that leave to appeal is appropriate and the matter should be dealt with on appeal.

Substantial injustice

  1. [81]
    We accept the applicants’ submission on the question of a substantial injustice. Subject to any findings made on appeal it is possible that there is a risk to the adult’s health and welfare and that an appeal is required to address a substantial injustice to the adult. Had natural justice been afforded and further submissions made, it may be that different orders would result.

LSS submission – abuse of process

  1. [82]
    LSS submits that the applicants’ application is an abuse of process, that the applicants are vexatious litigants and that the application should be dismissed with indemnity costs in favour of LER and LSS. That submission is rejected.
  2. [83]
    On the basis of our conclusion that leave to appeal should be granted the submission by LSS is rejected.

Separate representative for LER

  1. [84]
    We agree with the submissions of LN and LG, the Public Guardian and the Public Trustee that it is in the interests of LER for a separate representative to be appointed in these proceedings. The Member noted that Mr Sheehy may have been frustrated in his attempts to have direct contact with LER, however, it remains possible for him as a separate representative to actively participate in the proceedings and to advocate for a position which he considers would reflect an outcome that is in LER’s best interest.
  2. [85]
    We accept that Mr Sheehy is an independent and disinterested party and is familiar with the matter. 
  3. [86]
    LSS makes no submissions about the appointment of a separate representative.
  4. [87]
    It was submitted that if Mr Sheehy were to be appointed then his fees should be paid by the Public Trustee from LER’s funds, under s 138 of the GAA Act. We accept that submission and make that order.

Orders

  • [88]
    We make the following Orders:
  1. The time for filing the application for leave to appeal or appeal, dated 18 January 2019, is extended to 22 January 2019.
  2. All parties are granted leave for legal representation in the proceedings APL024-19.
  3. Until further order of the Appeal Tribunal, pursuant to s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), publication of any information about any guardianship proceedings and Appeal Tribunal proceedings concerning LER that is likely to lead to the identification of LER by a member of the public, or by a member of the section of the public to whom the information is published, is prohibited.
  4. Leave to appeal is granted to LG and LN.
  5. LG and LN have standing to conduct an appeal in this matter.

6. (a) Mr Peter Sheehy is appointed as separate representative for the adult, LER; and

(b) his reasonable fees to be paid by the PublicTrustee from LER’s funds, under s 138 of the Guardianship and Administration Act 2000 (Qld).

Footnotes

[1]GAA, s 11.

[2]GAA, Sch 1 Pt 1 s 3.

[3]Ibid, s 11.

[4]Re JT [2014] QSC 163, [39]-[42] per Ann Lyons J; HFI [2018] QCAT 279, [27], [52]-[53].

[5]QCAT Act, s 143(3).

[6]Queensland Police Service v ZIL [2019] QCATA.

[7]State of Queensland v Ali [2014] QCATA 14.

[8]LSS v LN, LG & Public Guardian [2016] QCATA 133.

[9]GAA, s 163(3)(iii).

[10]Seymour v Racing Queensland Ltd [2013] QCATA 179 at [18].

[11] LER (No 2) [2018] QCAT, [77].

[12]Ibid [43]. 

[13]Ibid [42].

[14]Ibid.

[15]Ibid [81]-[83].

[16]Ibid [83].

[17]Ibid.

[18]GAA s 32(2).

[19]GAA s 31(3).

[20]GAA, Sch 4 ‘capacity’.

[21]Amundsen v Queensland College of Teachers [2011] QCATA 2; see also GDLA v GMG [2017] QCATA 18 and Pickering v McArthur [2005] QCA 294.

[22]John Holland Pty Ltd v TAC Pacific Pty Ltd [2010] 1 QdR 302.

Close

Editorial Notes

  • Published Case Name:

    LN and LG v LSS, LER, Public Trustee of Queensland and Public Guardian

  • Shortened Case Name:

    LN v LSS

  • MNC:

    [2020] QCATA 18

  • Court:

    QCATA

  • Judge(s):

    Senior Member Howard, Member Fitzpatrick

  • Date:

    06 Feb 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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