SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The applicant Patricia Maher is the widow of the late Mr Rodney James Maher who died on 15 July last.  In recent years Mr Maher was incapacitated.  He suffered spastic paraparesis and dementia and was cared for in a nursing home in Clontarf. 

[2] Unhappily Mrs Maher and her daughter disagreed about the means by which Mr Maher could best be cared for.  There were several applications firstly to the Guardianship and Administration Tribunal (“Guardianship Tribunal”) and subsequently to the Queensland Civil and Administrative Tribunal (“QCAT”). 

[3] Relevantly on 29 March 2007 the Guardianship Tribunal made an order appointing the Public Trustee of Queensland Mr Maher’s administrator.  On 16 July 2009 it appointed the Adult Guardian to be Mr Maher’s guardian “for all personal matters.” 

[4] In March or April 2010 Mrs Maher applied to QCAT, which had replaced the Guardianship Tribunal, for a review of the appointments of guardian and administrator.  She asked that she be appointed to the roles in place of the Adult Guardian and the Public Trustee.  On 28 April 2010 QCAT refused Mrs Maher’s application and ordered that the earlier appointments continue.  It found she had not demonstrated that she was a more appropriate appointee. 

[5] Mrs Maher then sought leave to appeal to QCAT against findings of fact made on the review, and appealed on grounds of law against the refusal of her application for review.  The application and appeal were determined on 10 March 2011.  On this occasion QCAT was constituted by the President, Hon Justice Alan Wilson, and Senior Member Ms Endicott.  Both proceedings were unsuccessful.  The President agreed with the reasons for judgment given by Ms Endicott.  She had been the presiding member of the Guardianship Tribunal which made the orders on 16 July 2009. 

[6] The application for leave to appeal, and the appeal, were heard “entirely on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing”, as provided for by s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”).  The decision to conduct the proceedings in that way was made by QCAT without reference to the parties whose views on that mode of proceeding were not sought.  There is nothing in s 32 which requires such a consultation.  The decision to conduct the application and appeal “entirely on the basis of documents” was one for QCAT to make.  Whether it was wise to make it without hearing submissions of the appropriateness of that course is a different question.  As the proceedings in this Court demonstrate time, anxiety and cost could have been saved had QCAT indicated it intended to proceed in that way and had it revealed who would constitute QCAT to determine the application and appeal. 

[7] The formal orders made by QCAT were signed by the President on 14 March 2011.  A copy was sent by post to the applicant who received the Order and the Reasons on 18 March 2011.  That was the first indication the applicant had that Ms Endicott had been a member of QCAT (Appeal Tribunal) which dismissed her proceedings. 

[8] Mr Maher’s death occurred between the institution of the application for leave to appeal to this Court and the hearing of the application.  The appointments of the Adult Guardian and the Public Trustee came to an end with the death on 15 July 2011: see s 26(1)(d) of the Guardianship and Administration Act 2000.  Accordingly the orders appointing administrator and guardian were effectively discharged by and as a consequence of the death. 

[9] An appeal to this Court from a decision of QCAT may only be brought by leave given by the Court of Appeal and then only on a question of law: see s 150(3) of the QCAT Act.  The primary ground of appeal, should leave be given, is that it was inappropriate for Ms Endicott to hear and determine the application and appeal so that the constitution of QCAT gave rise to an apprehension of bias discernable to a fair-minded lay observer.  The point is one of law. 

[10] Despite the absence of a subject matter of legal controversy (a living adult about whom orders for guardianship and/or administration might be made), and the impossibility of making an order which could affect Mr Maher’s physical or financial wellbeing, the applicant persisted with her application for leave to appeal. 

[11] Mr Wagner of counsel who appeared for the applicant submitted that there is utility in this Court determining the applicant’s challenge to the constitution of QCAT which may have a beneficial effect on future proceedings in QCAT, between other litigants, although it cannot have any effect on the applicant’s affairs or that of her late husband.  Although this Court would not ordinarily give leave to appeal in a case where there is no longer a controversy to be settled by adjudication, or where the subject matter of a dispute has ceased to exist, we think there is merit in the applicant’s suggested course. 

[12] The first respondent (the Adult Guardian) did not appear on the hearing.  Counsel for the second respondent (the Public Trustee), Mr Whiteford, frankly and helpfully addressed submissions to the court which supported the applicant and sought this Court’s opinion on the appropriateness of the constitution of QCAT for the determination of the applicant’s proceedings before it. 

[13] There is no doubt that the applicant feels a keen sense of grievance at the manner in which her proceedings were disposed of.  She deposed: 

“A fundamental issue in the proceedings before (the Guardianship Tribunal) in 2009 … was whether I was an appropriate or more appropriate guardian than a Government entity.  … I am also now further aggrieved by the fact that the Senior Tribunal Member Mrs Clare Endicott presided on the QCAT Appeal Tribunal which again made a determination adverse (to) myself in that it was ultimately decided in effect that I was still not more appropriate as a guardian and administrator than the … Respondents.  I am aghast that such an ultimate finding … could be made … by a person who had also been involved in an earlier related decision … (on) 16 July 2009.  I believe that … a person who was previously involved in the same type of decision as to my level of appropriateness should never have presided, least of all made a determination adverse to me … .”

[14] There is considerable substance in the applicant’s complaint about the constitution of QCAT which determined her application and appeal.  Although it can have no practical effect in her case we consider that we should grant leave to appeal and determine the appeal on the ground of apprehended bias because the issue is an important one which goes to public confidence in the processes of QCAT and the decision of this Court may assist to avoid similar problems in the future.  The court heard argument on the point raised by the appeal, as well as the application for leave to appeal. 

[15] The Guardianship Tribunal giving judgment on 16 July 2009 said: 

“[27]Once again, the Tribunal believes that this is an instance where the conflict between (the applicant and her daughter) has impacted upon the adult’s welfare and wellbeing … .

[28]From those examples of the impact upon the adult, the Tribunal is not satisfied that either (applicant or daughter) would be appropriate decision-makers on personal matters … .  It is not a reflection on the love or care that either … has for (Mr Maher). It is a reflection of the current position where the parties through their actions have allowed the situation to develop where there have been adverse impacts on the adult’s care and wellbeing. 

…

[30]The Tribunal then is left with the situation that if neither (applicant or daughter) are considered appropriate decision-makers … in the context of this conflict between them, then the only other alternative … is to appoint the Adult Guardian.  … .”

[16] The applicant sought a review of that decision (and the decision to appoint the Public Trustee) in the application for review made in 2010.  In determining the application and appeal from that unsuccessful proceeding QCAT in March 2011 had to determine the very question which the Guardianship Tribunal had determined adverse to the applicant in July 2009. 

[17] It appears from Ms Endicott’s reasons that she had remembered her earlier role in the dispute over Mr Maher’s care.  Those reasons referred to: 

“Disagreement and conflict … over decision-making between (the applicant) and (her daughter) about almost every aspect of Mr Maher’s care, and life.  The difficulties with communication, information and decision-making have been unable to be resolved.  (The applicant and her daughter) were applicants at various times to the former Guardianship … Tribunal which made orders in 2007, 2008 and 2009 appointing the Adult Guardian as guardian and The Public Trustee … as administrator for Mr Maher.” (footnote omitted)

[18] The applicant submitted:

“… there was (and remains), as a matter of possibility (real not remote), a reasonable apprehension of bias because a hypothetical lay observer would apprehend that Mrs Endicott was biased when she approached her QCATA determinations of 10 March 2011 given that she had previously, in the … Decision of 16 July 2009, determined issues or ‘found a state of affairs’ which were the same or similar … to be determined in the (appeal) proceedings.  One main ‘state of affairs’ was that the Applicant/Appellant was not an appropriate Guardian. … a hypothetical lay observer would undoubtedly perceive bias in that … the Applicant/Appellant (could not) now persuade Mrs Endicott that she was ‘more appropriate’ than the (Adult Guardian) … when Mrs Endicott had initially appointed the Adult Guardian in the first place … .”

[19] The submission should be accepted.  In its most recent discussion on this point in British American Tobacco Australia Services Limited v Laurie [2011] HCA 2 Heydon, Kiefel and Bell JJ said (at [126]): 

“In Livesey it was said that a fair-minded observer might entertain a reasonable apprehension of bias if a judge sits to hear a case after the judge has, in a previous case, expressed “clear views” about a question of fact constituting a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question”.  (footnote omitted)

The reference was to Livesey v New South Wales Bar Association (1983) 151 CLR 288.

[20]  Their Honours went on:

“[139]It is fundamental to the administration of justice that the judge be neutral.  It is for this reason that the appearance of departure from neutrality is a ground of disqualification.  Because the rule is concerned with the appearance of bias, and not the actuality, it is the perception of the hypothetical observer that provides the yardstick.  It is the public’s perception of neutrality with which the rule is concerned.  In Livesey it was recognised that the lay observer might reasonably apprehend that a judge who has found a state of affairs to exist, or who has come to a clear view about the credit of a witness, may not be inclined to depart from that view in a subsequent case.  It is a recognition of human nature.”  (footnote omitted)

[21]  Their Honours concluded:

“[145]Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial.  Judge Curtis’s expressed acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings.”

[22] We consider that the fair minded lay observer knowing the relevant facts would entertain a reasonable apprehension of bias in the constitution of QCAT given Ms Endicott’s prior involvement in determining, adverse to the applicant, the same issues which arose for determination in the appeal. 

[23] The circumstances giving rise to the apprehension are exacerbated by the most unfortunate appearance of secrecy in the choice of members to constitute QCAT for the hearing and the mode of proceeding.  We do not attribute any impropriety at all to those involved in the selections, but the result has been most unhappy.  However, the process and result have not been consonant with QCAT’s objects stated in s 3 of the QCAT Act to deal with matters “in a way that is … fair, just …” and enhances “the openness and accountability of public administration”.  By QCAT proceeding as it did the applicant was not given any opportunity to express her opposition to Ms Endicott’s participation.  The applicant was not aware until 18 March 2011, after her proceedings had been dismissed, that they had been heard or that Ms Endicott had heard them.  A tribunal member, or judge, in Ms Endicott’s position should have alerted the applicant (and the other parties) to the proposed constitution of QCAT and asked whether there was objection to it.  Objection would have been well founded, as we have pointed out. 

[24] Danckwerts LJ noted in Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 602 that the apprehension of bias in a tribunal member may be increased if the member omitted to disclose his or her prior involvement in a matter and did not ask whether there was objection to his or her continuing to sit.  The observation has added pertinence where the tribunal member knows of her involvement, and knows that the litigant does not, and will not know until after the proceeding is determined. 

[25] The appeal should be allowed and the decision of the Queensland Civil and Administrative Tribunal made on 10 March 2011, and the orders made on 14 March 2011 be set aside.  The result will be that the decision of QCAT of 28 April 2010 refusing to review the earlier decisions to appoint the respondents respectively as guardian and administrator will stand, leaving those orders of appointment unaffected until they came to an end pursuant to s 26(1)(d) of the Guardianship and Administration Act 2000 consequent upon Mr Maher’s death. 

[26] The orders of the court are:

1. The applicant have leave to appeal to argue the ground of apprehended bias.

2. Appeal allowed and the decision of QCAT of 10 March 2011, and the orders of 14 March 2011 are set aside.

3. No order as to costs.

[27] The court records the commendable fact that Mr Wagner appeared for the applicant pro bono.