TJ v Public Trustee[2024] QCA 137

SUPREME COURT OF QUEENSLAND

1. [1]
   BOWSKILL CJ:  CRG was badly injured in a car accident when he was a young child.  He suffered injuries which affected his capacity to manage his own affairs.  In 2000, when he turned 18, he was awarded a sum of money as damages for his injuries.  Administrators have been appointed for him since then to manage his financial affairs – at times, the Public Trustee; at other times, his mother and aunt.  Decisions have been made by them about how that money, and property acquired with it (including a unit at Maroochydore and a “bush retreat” at Imbil) should be dealt with.  At times the Adult Guardian has also been appointed as guardian for, among other things, accommodation decisions for CRG.  Since April 2017, the appellant (TJ), who is CRG’s stepfather, has been the administrator.^[1]
2. [2]
   TJ is critical of some of the decisions made by the Public Trustee in the exercise of its power as administrator since 2004.  TJ made an application to QCAT, under s 59 of the Guardianship and Administration Act 2000 (Qld) (GAA), for an order that the Public Trustee compensate CRG for loss he alleged was caused by the Public Trustee’s failure to comply with the GAA in making those decisions.^[2]  TJ’s application was based on allegations that, in making the decisions (in 2004) to rent out the unit, (in 2005) to sell the bush retreat and (in 2007) to sell the unit, the Public Trustee had failed to act with reasonable diligence to protect CRG’s interests, as required by s 35 of the GAA and had failed to apply the general principles which apply to all administrators,^[3] in particular general principle 7.  In simple terms, the argument was that, if these decisions had not been made, CRG would have been better off financially because he could have lived in his own home, an asset that would continue to appreciate in value and which would not be taken into account in the assessment of a disability pension.  It was not controversial that the bush retreat and the unit were sold for at or above market value, so there was no complaint about that aspect of the decisions.
3. [3]
   Although initially unsuccessful before QCAT^[4] and QCAT’s appeal tribunal,^[5] TJ succeeded on an appeal to the Court of Appeal.^[6]  The Court found that the Public Trustee had breached its obligations as administrator, by failing to “analyse and assess the courses of action which may be reasonably taken by a prudent person and to assess the financial consequences of those actions, when determining whether to tenant CRG’s unit in 2004; to sell the bush retreat in 2005; and to sell the unit in 2007”^[7] – that is, by failing to consider other options.
4. [4]
   The Court also noted that, in undertaking the requisite analysis or assessment of what were the reasonable alternative courses of action, or as to their consequences for CRG in respect of the decisions, general principle 7:

“… required the Public Trustee to recognise and take into account CRG’s right to participate, to the greatest extent practicable, in decisions affecting his life; the importance of preserving, to the greatest extent practicable, his right to make his own decisions; and, in exercising the principle of substituted judgment, to take into account what others considered would be CRG’s views and wishes, if it was reasonably practicable to work out CRG’s views and wishes from those persons.”^[8]

5. [5]
   The Court found that there was no evidence the Public Trustee had “sought CRG’s views or even attempted to do so, prior to making the decisions to rent the unit, sell the bush retreat and, ultimately, sell the unit”.^[9]
6. [6]
   A further error identified by the Court of Appeal was a denial of procedural fairness at the hearing before QCAT.  The QCAT appeal tribunal found that, in any event (that is, apart from its conclusion that the Public Trustee had not breached its obligations, which was overturned by the Court of Appeal), there was no evidence any breaches of the GAA were causative of loss to CRG.  However, directions had earlier been made to the effect that, if the Tribunal were to decide a compensation order should be made, but consider there was insufficient material to quantify the level of compensation, it would make directions for further evidence or submissions.  No such directions were made.  Whilst the Court of Appeal accepted there is a difference between evidence of causation of loss and quantification of loss, it was said to be unsurprising that a self-represented litigant, such as TJ, might fail to appreciate the difference and therefore “fail... to lead evidence of alternative courses of action which may have reasonably been taken by the Public Trustee at the relevant time, or of loss occasioned by reason of the Public Trustee’s failure to comply with the Act”.  The Court therefore held that “[t]o rely on an absence of evidence in such circumstances, without first advising the applicant of an intention to do so or without first affording the applicant an opportunity to lead such further evidence, deprived the applicant of a fair hearing”.^[10]
7. [7]
   As a result, the decision of the appeal tribunal was set aside, and the application for compensation was remitted to QCAT for rehearing.
8. [8]
   The rehearing took place on 12 December 2023 before the Tribunal constituted by Judicial Member Rinaudo and Member Kanowski.  The Tribunal dismissed the application for compensation,^[11] because it was not satisfied the Public Trustee’s failures (as found by the Court of Appeal) caused loss to CRG.  That was, in turn, because it was not satisfied the Public Trustee would have made any different decision(s), even if it had acted in full compliance with the GAA.
9. [9]
   The relevant part of the Tribunal’s reasons is as follows:

3. “[69]
   To prove loss, the current administrator must show, on the balance of probabilities, that the failures of the Public Trustee to consult as required and to consider all reasonable options caused CRG to suffer a loss. Put another way, he must establish on the balance of probabilities that if the Public Trustee had complied with the Act, CRG would have ended up in a better financial position.

3. [70]
   A central point made by the current administrator – that CRG would have been better off financially, culturally, and emotionally living in a home he owned and having family as support persons and administrators – undoubtedly has force. CRG received Centrelink benefits, mainly disability support pension. A person’s principal home is an exempt asset under the social security assets test. The holding of wealth by a pensioner in their own home can obviously have financial advantage for them. Further, a family member as administrator will not be entitled to remuneration.

3. [71]
   We are mindful that we should not approach the question of liability with the benefit of hindsight. That would be unfair because hindsight is not something available to an administrator when it makes decisions. An administrator would not have known in 2003 or the following years that CRG would remain on a social security benefit long-term. However, it would have been reasonably foreseeable that he might, given that he was granted disability support pension at a young age. Therefore, any social security implications of a decision were something an administrator should have taken into account.

3. [72]
   Had the Public Trustee acted in full compliance with the Guardianship and Administration Act, it would have considered the reasonable options open in 2004 to 2007. It would have taken into account the benefits of CRG living in a home he owned, including the social security advantage and the fact that he would not have had to pay rent. The Public Trustee would also have consulted with CRG, his mother and the current administrator.

3. [73]
   It is implicit in the current administrator’s case that if consulted, he would have expressed the views that are central to his case for compensation, including the importance of CRG living in a home he owned, family emotional and financial support for CRG, and the strength of the property market on the Sunshine Coast.

3. [74]
   We do not have evidence from CRG or his mother about what views they would have expressed if consulted. However, it is reasonable to assume that they would have expressed views similar to those expressed in the late 2003 letter. That letter favoured the development of the bush retreat and, if possible, the retention of the unit, while leaving open the options of selling or renting out the unit. The letter also indicated confidence in the Sunshine Coast property market.

3. [75]
   It can be assumed that if consulted, CRG would have expressed his views on the desirability of rural living. Despite that, we infer and find that CRG would not have chosen to live at either property at any time while he still owned them. He had not chosen to live at either of them in late 2003. He chose to live in Brisbane, notwithstanding that at some future point he might choose to live in the country. CRG knew that he owned property on the Sunshine Coast but at no point did he move to the bush retreat, where it had been hoped by his mother that he would live initially in basic conditions, or ask the Public Trustee to keep the unit available so that he could live there. He did not ask the Public Trustee to evict the tenants so that he could move in, or to sell the Maroochydore unit and buy one for him in Brisbane. Nor did the Adult Guardian make such requests while it was responsible for making his accommodation decisions. CRG, we find, did not wish or intend to live in either of the properties he owned during the years in question.

3. [76]
   Neither property was his home such that he could have validly claimed the principal home exemption under the social security assets test.

3. [77]
   Further, the financial circumstances of CRG in 2004 and 2005 were strained. Even if the Public Trustee had consulted and CRG’s strong views had been that the unit should not be tenanted, it is improbable that an administrator, applying all of the relevant general principles and exercising its power with reasonable diligence, would have seen it as a prudent option to decline to derive income on an asset that had income-producing potential. We take into account that an income test applies in calculating the rate of pension. The income test uses a complex formula, but suffice it to say for present purposes that it does not apply a dollar for dollar (or higher) reduction for income.

3. [78]
   Similarly, in relation to the bush retreat, even if the Public Trustee had consulted and CRG’s strong views were that the bush retreat should be retained, it is improbable that an administrator would have seen it as prudent and proper option to retain a non-income producing asset that CRG was not using and had not used.

3. [79]
   The financial situation was not as tight in 2007. There was a small budget surplus and a substantial buffer of funds. The decision to sell the unit was not inevitable. On the other hand, by then some further years had gone by without CRG or his guardian asking that CRG live in the unit. He was still living in Brisbane. He had not demonstrated any inclination to live on the Sunshine Coast. In those circumstances, it is unlikely that the Public Trustee would have concluded, even if it had consulted CRG and his family and had considered all reasonable options, that it was essential that it retain an asset for CRG in Maroochydore. There was no social security advantage in retaining the unit as it was not an exempt asset. Had it been retained, it could have become an exempt asset if CRG had later taken up residency there. However, he had shown no inclination to do so. Selling the unit realised funds which could have been used to purchase another dwelling for him at some point, if sufficient funds remained and if he demonstrated a wish to live in a property he owned.

3. [80]
   While it is possible that the Public Trustee would have made a different decision in 2007 about whether to sell or retain the unit, had it consulted with CRG, we are not satisfied that it is likely that it would have done so.

3. [81]
   We are, then, not persuaded that, if the Public Trustee had fully complied with the legislative requirements, it is more likely than not that it would have made different decisions than the ones it did about renting out the unit, selling the bush retreat, and selling the unit. We find accordingly.

3. [82]
   It follows that the Public Trustee’s failures did not cause loss to CRG, whether in relation to the disposal of real properties, payment of rent, decreased pension entitlement, or similar consequences.”^[12]

10. [10]
    TJ seeks to appeal against this further decision of the Tribunal on the following grounds:

3. 1.
   The decision is not consistent with and disregards the Court of Appeal’s decision in TJ v The Public Trustee.

3. 2.
   The decision is not supported by the evidence.

3. 3.
   The Tribunal did not apply the GAA General Principles in retrospectively determining CRG’s views and wishes.

3. 4.
   The Tribunal has not taken into account CRG’s rights under the purpose of the GAA in section 6, the GAA General Principles and the appropriateness considerations in GAA section 15 in determining what probably would have happened if the Public Trustee did comply with the Act.

3. 5.
   The Tribunal has not taken into account CRG’s disability and support needs and rights in determining what would probably have happened if the Public Trustee did apply the GAA.

11. [11]
    Where, as here, the Tribunal was constituted by a judicial member, a party to the proceeding may appeal as of right to the Court of Appeal on a question of law.  An appeal on a question of fact, or of mixed law and fact, may be made only if the party has obtained the Court’s leave to appeal.^[13]  Some of the “grounds” relied upon by TJ could involve questions of law (for example, if there is no evidence for a decision, that is an error of law); but others do not.  However, the respondent took the position of not opposing leave, should it be required, and so the Court proceeded to hear the appeal.
12. [12]
    Before dealing with the grounds, however, it is appropriate to say something about a legal issue which arises – namely, what is the test for causation under s 59 of the GAA?

The test for causation under s 59 of the GAA

13. [13]
    At the time the application for compensation was made (and, indeed, at the time of the actions of the Public Trustee the subject of complaint), s 59(1) provided:

“A guardian or administrator for an adult (an appointee) may be ordered by the tribunal or a court to compensate the adult (or, if the adult has died, the adult’s estate) for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power.”

14. [14]
    Section 59(1) was amended in April 2019,^[14] so that it now provides:

“The tribunal or a court may order a guardian or administrator for an adult (an appointee) to pay an amount to the adult or, if the adult has died, the adult’s estate –

3. (a)
   to compensate for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power; or

3. (b)
   to account for any profits the appointee has accrued as a result of the appointee’s failure to comply with this Act in the exercise of a power.”

15. [15]
    It can be seen from the underlined words that, in so far as presently relevant, there is no substantive difference between the provisions.
16. [16]
    The Court invited further submissions from the parties in relation to the appropriate test of causation to apply when determining an application for compensation under s 59(1), as it was not a matter overtly addressed in the Tribunal’s decision nor in the submissions filed for the purposes of this appeal.  Further submissions were filed following the hearing, by both the respondent and the appellant.
17. [17]
    In so far as the Tribunal’s decision is concerned, the approach taken is set out in [69] of the reasons (see above).  The Tribunal adopted a “but for” approach to the question whether the Public Trustee’s conduct caused CRG to suffer loss.
18. [18]
    Having regard to the authorities, that is the correct approach.  The compensation contemplated by s 59 is designed to make good loss caused by the breach of an appointee’s duty (that is, the appointee’s failure to comply with the Act).  By the use of the words “caused by”, the statute requires that there be a causal connection between the breach and the loss for which compensation is claimed.  Having regard to the nature of an appointee’s duty, it is appropriate to adopt the equitable principle that to establish an entitlement to compensation for breach of trust it must be shown that the loss to the person would not have been sustained but for the breach.^[15]
19. [19]
    TJ argued against this conclusion, on various bases, including that:

    1. because the GAA is remedial legislation,^[16] the test for causation under s 59 of the GAA “should be remedially weighted toward the protection of the rights and property of incapacitated persons”;
    2. an administrator appointed under the GAA has a “greater scope of liability than an ordinary fiduciary”, because an ordinary fiduciary is not obliged to apply the general principles to make substituted decisions on behalf of their client;
    3. if the Civil Liability Act 2003 applies, the Court (or tribunal) has a discretion as to the scope of liability, having regard to s 11 of that Act; and
    4. the nature of the compensation sought by TJ is “substitutive”, not “reparative”, because he seeks an order that would restore to CRG the equivalent (in money terms) of the real property that he owned prior to the Public Trustee’s decisions; thus, the “but for” test for causation does not apply.
20. [20]
    Those matters do not support a conclusion that some other test for causation applies to s 59.  The duties owed by a fiduciary are stringent, and of the highest order.  It is appropriate for an equivalent standard to be applied to an administrator appointed under the GAA; but there is no basis as a matter of law to apply a “greater” standard (and certainly no basis on which this could alter the requirement to prove causation for the purposes of s 59).  The Civil Liability Act is concerned with civil claims for damages for harm; it does not apply to a claim for compensation under the GAA.  In any event, the determination of factual causation under s 11(1)(a) essentially involves the same “but for” test of causation.^[17]  It is misconceived to describe s 11 as conferring a “discretion” in so far as causation is concerned.
21. [21]
    The distinction between reparative and substitutive (or restorative) compensation is discussed in the reasons of Edelman J, then of the Supreme Court of Western Australia, in Agricultural Land Management Ltd v Jackson (No 2) [2014] WASC 102 at [333]-[349].  Substitutive compensation is concerned with restoring to a trust an asset (or the value of an asset) dissipated without authority.  Such an order is not concerned with whether loss has been suffered; but rather involves enforcing the trust by requiring the trustee to perform their duty.  In contrast, reparative compensation involves a claim for reparation for loss suffered by breach of duty.  The statutory language of s 59 of the GAA reflects a claim of that kind – compensation for a loss caused by the appointee’s failure to comply with the Act in the exercise of a power.  Although of course such a claim may arise in a wide variety of circumstances (including unauthorised dissipation of an asset).  Describing the claim as “substitutive” or “reparative” cannot avoid the statutory requirement for a causal connection to be shown.
22. [22]
    What is required to be established, for a claim for compensation under s 59, is that:

    1. the appointee (here, the Public Trustee) failed to comply with the GAA in the exercise of their power;
    2. CRG has suffered a loss; and
    3. that loss was caused by the appointee’s failure to comply with the GAA – in the sense that “the loss would not have occurred but for the breach”.^[18]
23. [23]
    The previous decision of the Court of Appeal establishes the first requirement – that the Public Trustee failed to comply with the GAA, in the exercise of its power as administrator, by failing to undertake an analysis or assessment of the reasonable alternative courses of action (that is, other than renting then selling the unit and selling the bush retreat) and failing to ascertain or take into account CRG’s views prior to making the decisions to rent and then sell the unit, and sell the bush retreat.
24. [24]
    The loss alleged to have been suffered is articulated in [70] of the Tribunal’s decision (set out above).
25. [25]
    As to causation, the conclusion reached by the Tribunal, following the recent rehearing, is that any loss sustained by CRG was not shown to have been caused by the Public Trustee’s failure to comply with the Act, because on the balance of probabilities, even if it had considered alternative courses of action, or ascertained and taken into account CRG’s views to a greater extent, it was more likely than not that the same decisions would have been made.  That is the finding that TJ must show was wrong in order to succeed on this appeal.

Ground 1 – inconsistency with previous Court of Appeal decision

26. [26]
    TJ endeavours to do that, first, by contending that the Tribunal’s decision is not consistent with and disregards this Court’s previous decision (ground 1).  This contention seems to blur the (Court of Appeal’s) conclusion of breach of duty with the (Tribunal’s) finding as to causation.  There is no such inconsistency.  The Tribunal proceeded upon the basis that breach of duty had been established, and sought to determine, on the evidence before it, whether, if the Public Trustee had fully complied with the legislative requirements, it was more likely than not it would have made different decisions than the ones it did about renting out the unit, selling the bush retreat and selling the unit (see [81] of the Tribunal’s reasons).  The Tribunal’s finding, that it was not persuaded any different decisions would have been made, is not inconsistent with this Court’s conclusion as to breach; it addresses a different requirement for the purposes of s 59.

Ground 2 – decision not supported by the evidence

27. [27]
    TJ next seeks to challenge the Tribunal’s conclusion on the basis that its decision is not supported by the evidence (ground 2).
28. [28]
    The first point to note in this regard is that, upon the rehearing before the Tribunal, TJ did not seek to put any evidence before the Tribunal from CRG or from CRG’s mother,^[19] or himself for that matter, as to what view they would have expressed, had they been asked at the relevant times.  As already noted, an additional error identified in the earlier Court of Appeal decision was a denial of procedural fairness (see paragraph [6] above) in circumstances where TJ was not, previously, given the opportunity to put evidence before the Tribunal going to the question of causation.  He had that opportunity, upon the rehearing, informed by the Court of Appeal’s decision, but did not take it up.  The Tribunal was therefore left to determine the question on the basis of the material that was put before it, and the inferences to be drawn from that material.  What is more, upon the hearing before this Court, TJ submitted that CRG’s views “are not relevant to his loss” and, further, explained that he had not presented any evidence from CRG “because he cannot remember much about his paint and petrol sniffing times and it is traumatic for him to try and remember”.  He also submitted that “nobody put me ‘on notice’ about this”^[20] – that is, the need to put on evidence (as to causation) for the purposes of the rehearing.  That last point is not accepted.  The previous Court of Appeal’s decision quite clearly “put [TJ] on notice”, because it identified, as an error, that he had not previously been given the opportunity to put evidence as to causation before the Tribunal.
29. [29]
    The evidence before the Tribunal on the rehearing included an affidavit of Ms Spence, from the Public Trustee, outlining various steps in the history of the administration of CRG’s affairs, including by reference to material that, it seems, was not previously before the earlier Tribunal or on the previous appeal to this Court.  That material was not relied upon to challenge the conclusion as to breach; but rather was relied upon as informing the question as to what the Public Trustee may have done, had it complied with the Act.
30. [30]
    The Public Trustee was initially appointed as administrator for CRG from December 2000 to December 2002.  In that time, it received the amount of money awarded to CRG for damages for his injuries, made various payments from that amount – including to hospitals, Centrelink, lawyers and for its own fees – and invested the balance.  It paid money to, or for, CRG for his accommodation and living expenses.
31. [31]
    In December 2002, the Public Trustee was removed and CRG’s mother and his aunt were instead appointed as joint administrators.  The Public Trustee paid to them, as the new administrators, the balance of the funds it then held (just over $390,000).
32. [32]
    A year later, in December 2003, the Public Trustee was reappointed on an emergency interim basis; and the appointment of his mother and aunt was suspended.  At the same time, the Adult Guardian was appointed as guardian for CRG in relation to various things, including accommodation.  During the time they were the administrators, CRG’s mother and aunt used his funds to purchase the Maroochydore unit (where CRG’s mother and TJ lived, but CRG did not) and the bush retreat at Imbil,^[21] leaving cash of just over $4,000 by the end of 2003 (from which CRG’s living expenses would need to be paid).^[22]
33. [33]
    The circumstances in which CRG’s mother and aunt were removed are explained in [16] of the previous decision of this Court, as follows:

3. “[16]
   The appointment of the Public Trustee as administrator for CRG was made on the basis that CRG’s mother and the applicant [TJ] had failed to pay rent on the unit; had purchased a number of items using CRG’s money which were not for CRG’s benefit; had not pursued a Centrelink pension for CRG; had not sought Tribunal approval for the purchase of either the unit or the bush retreat (which was necessary as CRG was not living at either property); had failed to provide an updated management plan within three months of the purchase of those properties; and had not complied with the Tribunal’s directions to account for financial transactions.  There was also a complete breakdown in the relationship between CRG’s mother and his aunt, as joint administrators.”

34. [34]
    CRG’s mother wrote a letter which was sent to the Guardianship and Administration Tribunal in December 2003.^[23]  In this letter, she said that, by that time, CRG had “developed a severe problem of substance abuse, in particular petrol and paint” and had “smashed up the flat he was living in”.  In explaining why she had bought the bush retreat, even though that was not part of an approved plan, CRG’s mother expressed the view that CRG’s “best chance of resuming a stable lifestyle is to live in basic conditions in the bush, supported by other family members”.  She referred to the Maroochydore unit, and noted that “while the unit is a solid investment outperforming other investment options, it is not appropriate for [CRG] at present given its easy access to paint, petrol and alcohol and transport to substance abuse centres (such as Sth Brisbane).”  She referred to the purchase of the block of bushland at Imbil and a proposal to use the remaining money on a shed, caravans and a water tank.  She also referred to a plan for CRG to live there, with a Ms Brown and her family, to “dry out” and begin to heal psychologically.  The letter goes on to say that, if CRG rejects this option and “continues his lifestyle of inner-city substance abuse, then the land will always be there for him when he needs a rest”.  However, the letter states that, if he settles on the land “we will then build a house on the land which will be financed by one of two ways”, sell the Maroochydore unit or rent the unit to pay off a building loan.  The letter also records that “[a]t present [CRG] is based at the Maroochydore unit but spends most of his time in South Brisbane”.^[24]
35. [35]
    This letter was relied upon as evidence of the views CRG, and his mother, might have expressed had they been consulted at or about the time of the letter.  For completeness, I record that TJ submitted that the Tribunal’s reference to this letter (and another written in February 2004) was procedurally unfair because the letters were not submitted in evidence before the Tribunal.^[25]  In fact, the letters were in evidence before the Tribunal (exhibit 3) and TJ had the opportunity to make submissions about the letters before the Tribunal.  There was no procedural unfairness.
36. [36]
    In April 2004, the appointment of the suspended administrators (CRG’s mother and aunt) was revoked, and the Public Trustee’s reappointment was confirmed.  At this time, the Adult Guardian’s appointment was adapted to an appointment only to make decisions in relation to CRG’s contact with his mother and stepfather (TJ).  This left CRG responsible for decisions about his accommodation.  As explained in the decision of the Guardianship and Administration Tribunal of 10 January 2007, this change “was occasioned by positive change in living circumstances, when [CRG] was with his father”.^[26]
37. [37]
    As further explained in [18] of the Court of Appeal’s decision, upon resuming the position of administrator, the Public Trustee took steps to evict CRG’s mother and TJ from the unit and, once that occurred, the unit was rented out, commencing from June 2004.  This is the first of the decisions challenged by TJ.  The rental income was used to pay for CRG’s maintenance and support.
38. [38]
    By late 2004, CRG’s financial situation was strained, to adopt the word used by the Tribunal in its decision at [77].  His income (pension and rent from the property) exceeded his expenses by only $94 per fortnight and he had debts of $6,400 (including for outstanding rates and body corporate fees).^[27]  The funds available to the Public Trustee, to look after CRG, had reduced to about $2,600.^[28]
39. [39]
    As at January 2005, the balance had tipped over into deficit, with CRG’s expenses exceeding his income by $419 per fortnight (the difference principally reflecting an amount being paid by this time for his care).^[29]
40. [40]
    The decision had been made to sell the bush retreat and invest the sale proceeds to provide additional income for CRG.  That property was sold in January 2005,^[30] at a significant profit on its purchase price.^[31]  This is the second of the decisions challenged by TJ.
41. [41]
    Part of the evidence before the Tribunal on the rehearing comprised “Client Service Plans” prepared by the Public Trustee for CRG at various times.  These include a plan from September 2004 which records that CRG was, at that time, living “with family” (his father) and that in terms of his future care needs it was anticipated he would have “ongoing support provided by father”.^[32]  The “proposed actions” at this time were to:

    1. continue rental of the Maroochydore unit;
    2. re-list the “bush retreat” at Imbil for sale (it seems it had been under contract, but the contract had fallen through); and
    3. pay outstanding debts “when sufficient funds are available or on sale of land being effected” and prepare a financial plan.^[33]
42. [42]
    Although TJ purports to challenge, on this appeal, the decision made in February 2004 that CRG would live with his father,^[34] that was not a decision made by the Public Trustee.  At various times either the Adult Guardian, or CRG himself, have been responsible for making accommodation decisions for CRG – but not the Public Trustee.  Further, the initial decision for CRG to live with his father seems to have been arranged as part of a bail condition.^[35]
43. [43]
    As appears from the plan dated 18 January 2005, CRG’s living arrangements were the same and it was proposed that he would “continue in current accommodation with family”.^[36]  The plan from January 2006 likewise contemplated CRG continuing to living with his father and continuing to receive paid care from Open Minds.^[37]
44. [44]
    By the end of December 2006, the cash funds available were down to $320, and the invested funds were down to just over $119,250.^[38]  The Adult Guardian was again appointed to make decisions for CRG in relation to, among other things, accommodation.  The reasons of the Guardianship and Administration Tribunal, for making this order, include that:

3. “[14]
   [CRG’s] living circumstances have changed.  He is no longer living with his father and is ‘on the streets’, as advised by his father and mother.  [CRG’s] father supports the appointment of the Adult Guardian whilst his mother and [TJ] do not.

3. [15]
   There continues to be considerable friction between [CRG’s] parents.

3. [16]
   In the circumstances the Tribunal considered it necessary that a substitute decision maker be appointed for [CRG] in relation to a number of personal matters.

3. [17]
   Given that the parents are unable to work together, the Tribunal had no alternative other than to extend the terms of the Adult Guardian’s appointment.”^[39]

45. [45]
    The evidence before the Tribunal on the rehearing also included file notes recording the outcomes of various meetings that took place in January, February and May 2007.
46. [46]
    A meeting was held in January 2007 “to establish the immediate accommodation options for [CRG]”.  According to the file note of this meeting, it was attended by people including the Adult Guardian, a mental health worker, an officer from Disability Services Queensland and a disability support officer from the Public Trustee’s office (Ms Goodwin); but not CRG or his parents.  The file note records that CRG was “currently living in a park at South Brisbane”.  It also records that contact had been made with CRG’s mother and TJ, who both “want to move him to Palm Island”.  The mental health worker expressed the view that “this would not be a good option” for CRG.  It was decided that attempts would be made to obtain accommodation at one or more hostels.  There was a suggestion made that “a house could be possibly purchased for [CRG] and he could receive support”.^[40]
47. [47]
    The next meeting was held on 5 February 2007.  It is not clear who attended this meeting, other than the same Adult Guardian and, it is to be inferred, the author of the file note (Ms Goodwin).  The file note in relation to this meeting records that the Senior Guardian reported that CRG “is currently living with his father” and that he “does not have an opinion on where he should live”.  The file note also records the following:

“As there are limited supported accommodation options available and suitable for [CRG’s] needs, it was decided that [CRG] should be supported to remain living with his father in the interim.  This support would have to be paid for from [CRG’s] funds as Disability Services Queensland are very unlikely to provide funding.  [CRG] could assess [sic, access] CAPS funding however it would need to be arranged for him by having an assessment to determine eligibility.

As [CRG’s] funds are very limited it was decided that he could only provide funding for support for a maximum of 2 months.  The option of buying a house was also discussed.  However there would need to be a number of safeguards around this as the issue for [CRG] is support and the likelihood of being taken advantage of.”^[41]

48. [48]
    The Public Trustee’s “client service plan” of 26 February 2007 records that CRG is continuing to live with his father.  By this time, consideration was being given to a proposal to sell the Maroochydore unit and “purchase a property in Brisbane that [CRG] could reside within and his family rent in order to care for [CRG]”.^[42]  According to the budget at this time, CRG’s income was only just covering his expenses (by about $1.50).^[43]
49. [49]
    A further meeting took place on 14 May 2007, attended by the same disability support officer, the Adult Guardian and others.  The purpose of this meeting was “to establish [CRG’s] long term accommodation prospects”.  At that time, CRG was living at a place called Herston Lodge, and receiving seven hours of support every day from another organisation called Open Minds.  He was said to have been convicted of an offence and at risk of going to prison.  The file note of this meeting records that:

“It has been ascertained that [CRG] requires ongoing support.  [A person from Open Minds] is currently submitting an application for [CRG] to be accommodated at the Alfred Street property at New Farm, which is managed by Open Minds.  [CRG] would need to pay 10 hours of support to receive the 24 hour monitoring support at the residence.  He would rent his own unit in the complex…”^[44]

50. [50]
    The unit was sold in July 2007, and the net sale proceeds were invested.^[45]  This is the third decision challenged by TJ.
51. [51]
    As already noted, TJ put no evidence before the Tribunal on the rehearing from CRG, CRG’s mother or himself, in relation to what CRG would have said, if his wishes and views had been sought, when the various decisions complained of were made.  In submissions to the Tribunal, TJ referred to the following as evidence that CRG “would [at the relevant times] have chosen to live in his own home supported by his mother”:^[46]

    1. An assessment of CRG undertaken in 2000 by a clinical neuropsychologist (Dr Field), who recorded that, as to the future, CRG “would like to get a block of land somewhere quiet, build a house and live there”.^[47]

The material includes a copy of this report.^[48]  It is dated 30 July 2000 and, as to the “current” position, records that:

“[CRG] is currently living in an Aboriginal Hostel, which is up the road from where his parents live at West End.  [TJ] told me that a friend of theirs is the Manager of the Hostel.  He said they cater for all ages.  He said that about 18 months ago there was a bad situation going on with [CRG].  He then went to live with his father for about 6-12 months and did reasonably well.  However, it is hard for his mother or his father to live with [CRG].  He tends to become aggressive at times.  For this reason [CRG] has been living at the Hostel.  [TJ] said that [CRG] is not a happy person in general, but he seems to be coping at the Hostel.  There are no expectations of him and he just has to turn up for meals.”

2. A report from a psychiatrist who visited CRG in prison in 2007 (after the unit was sold), who is said to have asked CRG what his preference would be for housing, and recorded that CRG “stated he would choose to live with his mother on Palm Island”.
3. A 2002 Guardianship and Administration Tribunal decision that is said to have authorised CRG to live in his own home supported by his mother.

This appears to be a reference to the decision made on 28 November 2002, by which CRG’s mother and aunt were substituted for the Public Trustee as administrators.^[49]  As noted above, a subsequent decision was made in 2004, to remove CRG’s mother and aunt as administrators.

4. That in 2009, when the Adult Guardian’s appointment ceased, and CRG had a choice where to live, he moved straight in with his mother and TJ.^[50]

52. [52]
    As against that, the Tribunal found (as undisputed facts) that CRG “spent only one night at the Maroochydore unit:  that was in September or October 2003, when he stayed there ‘to get registered at Centrelink’ before insisting on returning to Brisbane” (at [13]) and never lived at the bush retreat (at [14]).  CRG was in prison in late 2003 and, when released on bail, lived with his father (at [17]).
53. [53]
    The point made by the Public Trustee at the rehearing before the Tribunal was that it had not been established by TJ that any loss was sustained by CRG because, even if the Public Trustee had complied with the Act, the same decisions would have been made in any event – to rent the unit, sell the land and sell the unit – because it was in CRG’s best interests to do so having regard to his personal and financial circumstances at the relevant times.  That is, even if every other option had been considered and consultation undertaken, the proper inference from the evidence was that the same decisions would have been made.
54. [54]
    Having regard to the material before the Tribunal on the rehearing, I am not persuaded that the Tribunal’s decision, recorded in paragraphs [80] and [81] (set out above) was “not supported by the evidence”.  The decision to rent out the unit seems, on any view, to have been the only decision a reasonably prudent administrator could have made, at the relevant time, in order to provide a source of income for CRG.  There was no basis to infer that CRG wished to, or could have, lived at the Maroochydore unit at that time.  Likewise, the decision to sell the “bush retreat”, seems to have been the only option available, given CRG’s strained financial situation.  As to the position in early to mid-2007, the evidence again supports the inference that, even if consulted, CRG and his family (his mother, TJ and his father) would not have said that, at the relevant times, CRG wished to, should or even could – given the levels of support he required – live at the Maroochydore unit.  Given the level of paid support that CRG required, the decision to sell the unit and invest the proceeds was, again a prudent one.  On the material before the Tribunal, I can see no basis to conclude that the Tribunal erred in reaching the conclusions that it did.
55. [55]
    There is one further matter to mention.  Although what was remitted to the Tribunal for rehearing was the application for compensation arising out of the decisions to rent and sell the unit, and sell the bush retreat, the Tribunal also addressed a separate claim TJ had previously made for $38,951.13.^[51]  This was said to be money that the former administrators for CRG (his mother and his aunt) had misappropriated from CRG’s funds.  Although the claim was seemingly first put on the basis that the Public Trustee ought to have pursued recovery of that money, it seemed to morph into a complaint that if the Public Trustee had pursued recovery action sooner, it would have found that the money was not misappropriated, the mother and the aunt would have been exonerated and they could have been re-appointed as administrators.^[52]  In my view, this was not a matter within the remit of the Tribunal on the rehearing.  This element of the compensation claim failed for logical reasons (because it does not involve a claim for compensation at all) at the first QCAT hearing;^[53] it was not the subject of the appeal to the QCAT appeal tribunal;^[54] and therefore was not the subject of the earlier appeal to the Court of Appeal.  In any event, there is no error in the manner in which this aspect of the claim was dealt with by the Tribunal (see at [86]-[89]).

Ground 3 – failing to apply the general principles

56. [56]
    TJ next contends the Tribunal’s decision is wrong because it did not apply the general principles under the GAA in making its decision (ground 3).  For this ground, TJ relies upon s 11B(1) of the GAA which provides that the general principles set out in s 11B(3) “must be applied by a person or other entity that performs a function or exercises a power under this Act”.
57. [57]
    The respondent submits those general principles do not apply to the Tribunal, because the Tribunal “is not a person or other entity exercising its power on behalf of a person in the way that powers of attorney, financial administrators, and guardians might”.^[55]
58. [58]
    In my view, it is correct to conclude that the Tribunal is not required to apply the “general principles” when performing its function of determining an application for compensation under s 59.  That function does not involve the Tribunal undertaking a substituted decision-making process.
59. [59]
    Even where the Tribunal is performing such a function, the express terms of the GAA support the conclusion that s 11B does not apply to it.  In that regard, the Tribunal’s broad functions under the GAA are summarised in s 81(1).  Section 81(2) provides that, “[i]n performing its functions or exercising its powers under this Act in relation to an adult, the tribunal must, to the greatest extent practicable, seek and take account of –

    1. the views, wishes and preferences expressed or demonstrated by the adult; and
    2. the views of any member of the adult’s support network.”
60. [60]
    Section 11 is another provision addressing the Tribunal’s performance of a function or exercise of a power under the Act.  Section 11(1) provides that, in performing such a function or exercising such a power, where a tribunal or the court is required to make a decision about an adult’s capacity for a matter, the tribunal or court is to presume the adult has capacity unless the contrary is proven.  The presumption of capacity is the first of the general principles, set out in s 11B(3).  The fact that separate provision is made in relation to this for a tribunal or court performing a function or exercising a power (in s 11) as opposed to “a person or other entity” (in s 11B(1)) further supports the conclusion that s 11B is intended to apply to entities other than the tribunal or a court.
61. [61]
    Lastly, the wording of the general principles is not such as to support the conclusion that they apply to the making of a judicial decision by the tribunal (or a court).  A clear example is general principle 10, “structured decision-making”.

Ground 4 – failing to take into account other matters

62. [62]
    The next ground relied upon by TJ to challenge the Tribunal’s decision contends that the Tribunal failed to take into account the purpose of the GAA (set out in s 6), the general principles (s 11B) and the “appropriateness considerations” (ground 4).  This contention is also rejected, for the reasons already given in relation to ground 3 and, further, because the “appropriateness considerations” apply to a decision to appoint a guardian or administrator (not a decision in relation to an application for compensation under s 59).

Ground 5 – failing to take into account CRG’s disability and support needs

63. [63]
    The final ground contends that the Tribunal did not take into account CRG’s disability and support needs and rights in determining what probably would have happened, if the Public Trustee had complied with the GAA (ground 5).  By this ground, TJ challenges the Tribunal’s findings, for example, that CRG knew he owned the Maroochydore unit, and at no point asked the Public Trustee to evict the tenants or keep the unit available so that he could live there (Tribunal’s decision at [75]).  TJ challenges these findings, submitting that the Tribunal incorrectly assumed CRG had the capacity of an ordinary non-disabled person to contact and negotiate with the Public Trustee and make life decisions for himself.  In my view, this ground also fails, because the point of the rehearing was to determine whether any loss was caused by the Public Trustee’s failure to comply with the Act (by failing to consider other options, and take into account CRG’s views).  The hearing was not an opportunity to revisit the question whether the Public Trustee had failed to comply with the Act, but proceeded from an acceptance that this fact was established by the decision of the Court of Appeal.  The issue on the rehearing required the Tribunal to consider what other options were available to the Public Trustee and what, if anything, was known about CRG’s views at the relevant times, in order to determine whether any different decision(s) would have been made had there been compliance with the Act.  The Tribunal drew inferences from the evidence that was available, acknowledging that there were many gaps.  The Tribunal was obliged to assume CRG had capacity to express his views and wishes (s 11).  But it was accepted (including, by TJ on this appeal) that CRG’s express views and wishes were not known, and so what he might have said, if asked, could only be inferred from the available evidence.  That was the point made by the Tribunal, leading to the conclusion expressed in [80] and [81] of its decision.

Conclusion

64. [64]
    I am not persuaded that any error (of fact or law) was made by the Tribunal on the rehearing.  I would dismiss the appeal.

65. [65]
    MULLINS P:  I agree with the Chief Justice.
66. [66]
    BOND JA:  I agree with the reasons for judgment of the Chief Justice and the orders proposed by her Honour.