Wheatley v The Public Trustee of Queensland
[2020] QCA 212
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- Unreported Judgment
- Appeal Determined (QCA)
- Wheatley v The Public Trustee of Queensland[2020] QCA 212
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Wheatley v The Public Trustee of Queensland[2020] QCA 212
Wheatley v The Public Trustee of Queensland[2020] QCA 212
[2020] QCA 212
COURT OF APPEAL
SOFRONOFF P
MORRISON JA
BODDICE J
Appeal No 6355 of 2020
DC No 1201 of 2020
PATRICIA MARGARET WHEATLEY Applicant
v
THE PUBLIC TRUSTEE OF QUEENSLAND Respondent
BRISBANE
28 SEPTEMBER 2020
JUDGMENT
BODDICE J: The applicant seeks leave to appeal a judgment of the District Court of Queensland, delivered on 15 May 2020, dismissing her application to be appointed litigation guardian for her brother, in place of The Public Trustee of Queensland, in a family provision application brought by him in respect of the estate of their late father.
The applicant contends a judgment of the District Court of Queensland was attended by error in finding a perceived or actual conflict of interest if she were appointed litigation guardian of her brother in place of The Public Trustee of Queensland.
The applicant’s brother suffers from a legal incapacity. He has a number of psychiatric and other disorders. He is also the subject of a forensic order made by the Mental Health Court.
On 30 August 2019, the Public Trustee of Queensland was appointed his administrator for all financial matters.
The applicant’s father died on 5 June 2019, survived by eight children. He left a Will. Neither the applicant nor her brother were named as beneficiaries in that last Will.
On 4 September 2019, the applicant commenced proceedings in the Townsville Registry of this Court, lodging a caveat against probate being granted for that or any previous Wills. The applicant’s contention was that her father’s estate should pass on intestacy.
On 24 February 2020, the Public Trustee of Queensland as litigation guardian of the applicant’s brother, commenced the proceeding in the District Court of Queensland, seeking further and better provision out of the deceased’s estate on behalf of the applicant’s brother pursuant to s 41 of the Succession Act 1981.
On 2 April 2020, the applicant commenced proceedings in the Townsville Registry of this Court, seeking further and better provision from the deceased’s estate pursuant to s 41 of the Act.
On 5 May 2020, Justice North ordered that the applicant’s family provision application be remitted to the District Court of Queensland to be heard with her brother’s application for family provision.
On 6 April 2020, the applicant sought a review of the decision of the Queensland Civil and Administrative Tribunal to appoint The Public Trustee of Queensland as her brother’s administrator for all financial matters. That review remains outstanding.
On 24 April 2020, the applicant filed the application which led to the judgment the subject of this application for leave to appeal.
At the hearing of that application, the applicant contended that the Public Trustee of Queensland’s appointment as her brother’s administrator for all financial matters did not have the consequence that the Public Trustee of Queensland was the appropriate litigation guardian for her brother in his family provision application. The applicant sought an order that she be appointed litigation guardian for her brother in relation to that family provision application.
In dismissing the application, the primary Judge found that a conflict of interest would arise if the applicant were to be appointed litigation guardian to replace the Public Trustee of Queensland as the applicant was herself seeking further and better provision out of the same estate.
The primary Judge held, that in the context of a relatively modest estate, decisions as to whether it was in the brother’s interest to pursue the application or to accept any settlement proposal would necessarily create a conflict between the applicant’s own interests and that of her brother. No such conflict would arise if the Public Trustee of Queensland remained as the brother’s litigation guardian for those proceedings.
In reaching those conclusions, the primary Judge expressly acknowledged that the applicant contended there was no conflict of interest as it was her intention to ensure that she and her brother received equal provision and, further, that the applicant was prepared to give an undertaking to conduct herself in her brother’s best interests.
The primary Judge found that, notwithstanding those circumstances, the applicant, in fact, had an interest in the proceeding adverse to the interests of her brother such that she may not be appointed as litigation guardian having regard to the provisions of rule 94 of the Uniform Civil Procedure Rules 1999.
The applicant’s contention that the primary Judge erred in concluding as to the existence of a conflict of interest, and as to the applicant being a person with an interest in the proceeding adverse to the interests of her brother, is without merit.
An obvious conflict of interest arises in the applicant’s contention that she would be seeking an equal contribution out of her father’s estate, for herself and her brother. The applicant’s brother has substantial medical conditions such that it may be appropriate for any litigation guardian acting on his behalf to contend that he ought to receive, by way of further and better provision out of the deceased’s estate, a significantly greater reward than the applicant.
In any event, the application was misconceived at its inception. The Public Trustee became the litigation guardian when he filed a consent to accept that office dated 18 February 2002. The office is therefore occupied. The question is not, therefore, whether the applicant is or is not disqualified from acting as her brother’s litigation guardian. The question is whether pursuant to rule 95(2) of the Uniform Civil Procedure Rules 1999, the interests of the applicant’s brother requires the removal of the Public Trustee as litigation guardian and the appointment, instead, of the applicant.
Even accepting the applicant could otherwise be a fit and proper person to be appointed, she failed to demonstrate any ground to justify the removal of the Public Trustee from that position. Leave to appeal will only be granted to correct an error of law resulting in substantial injustice: Inserve Australia Ltd v Kinane [2019] 1 Qd R 299, or where some other question of law or of general importance warrant a grant of leave: Eyears v Zufic [2016] QCA 40.
As the primary Judge’s decision was plainly correct, there is no basis to conclude that the judgment is occasioned by error of law or gives rise to any substantial miscarriage of justice.
I would order that leave to appeal be refused.
MORRISON JA: I agree.
SOFRONOFF P: I agree. The application for leave to appeal is refused.
…
SOFRONOFF P: This was an application that having regard to the reasons that have been given was always doomed to fail. In the circumstances, the order is that the applicant pay the respondent’s costs on a full indemnity basis. Adjourn till 10.15 tomorrow, please.