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- Unreported Judgment
PMF QCAT 304
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
PMF  QCAT 304
In an application about matters concerning PMF
Guardianship and Administration matters for adults
9 October 2019
12 February 2019
20 May 2019
9 October 2019
(a) The Supreme Court of Queensland proceeding No. XXXX of 2015.
(a) The Enduring Power of Attorney dated 15 October 2008 appointing GMK and MCM as attorneys for financial, personal and health matters.
GUARDIANS, COMMITTEES, ADMINISTRATORS, RECEIVERS AND MANAGERS – OTHER MATTERS – where previous appointment made to facilitate appointment of a litigation guardian in another jurisdiction – where administrator appointed declined to be appointed litigation guardian – where litigation guardian appointment still necessary in another place – where review of appointment therefore necessary
Guardianship and Administration Act 2000 (Qld); s 31
APPEARANCES & REPRESENTATION:
PMF in person
KR and KW
AA Solicitor for PMF represented by S. Lamb of Counsel
DC Advocate for PMF
REASONS FOR DECISION
- On 16 July 2018 this Tribunal appointed The Public Trustee of Queensland as administrator for PMF for legal matters relating to the action in the Supreme Court of Queensland.
- The appointment was made by the learned member to facilitate the appointment in the Supreme Court matter of a litigation guardian in personal injuries actions under the Rules of that Court.
- The Public Trustee declined to be appointed as litigation guardian for PMF.
- The Tribunal initiated an application to review this decision on 5 November 2018 so that the matter could proceed in the Supreme Court.
- This matter has had two oral hearings and an on the papers hearing to allow all the parties to provide material upon which this matter is finally determined.
- PMF and her mother GMK (PMF’s current attorney under an Enduring Power of Attorney) are implacably opposed to any appointment.
- The first matter that the Tribunal must consider when looking at any application is PMF’s ability to make these decisions for herself or the issue of capacity as defined in schedule 1 to the Guardianship and Administration Act 2000 (Qld). The general principles require that she is presumed to have capacity for the matter – general principle 1 – and that must be rebutted. While there is no definition of incapacity, there is, within the Act, a definition of capacity, and that has three elements: understanding the nature and effect of decisions about a matter, freely and voluntarily making those decisions, and communicating them.
- In the hearing before the tribunal on 16 and 17 July 2018 evidence from two psychiatrists was given who agreed that PMF is a highly intelligent person but who has a particular personality disorder described as obsessive compulsive that leads her to want every matter to be completed perfectly. The psychiatrists agreed that PMF would be unable to provide instructions in a timely manner in the Supreme Court action as she would never be able in her eyes to successful conclude her investigations for further evidence. This evidence was accepted by the Tribunal at that hearing.
- I have had the opportunity to observe and listen to PMF over two oral hearings and to read substantial written evidence provided by PMF (some of it as late as the morning of the final hearing date). I have also seen and heard both in writing and orally from GMK on all aspects of this matter.
- I agree with the assessment of the psychiatrists concerning PMF’s level of intelligence. I also agree with the assessment that she has a particular personality disorder described as obsessive compulsive. PMF’s need to continue to gather information and her inability to say “enough” was clearly evident to me.
- In her final email to this Tribunal dated 9 October 2019 PMF raises many conspiracy theories concerning the actions of her current solicitor, lawyers and men in general.
- I do not accept any of her assertions.
- This matter in the Court appears to be a straightforward personal injuries claim that will likely be settled at a pre-hearing mediation and not need to proceed to trial. Prolonged actions simply incur more fees and takes up court time unnecessarily.
- Section 31 of the Guardianship and Administration Act 2000 (Qld) sets out the matters that must be taken into consideration on the review of the appointment of an administrator. Subsection 1 of section 31 requires that the Tribunal must revoke its order unless satisfied a appointment would be made if this was a new application.
- I am satisfied that PMF’s disorder prevents her from giving instructions in this legal matter. I am therefore satisfied there is a need for an appointment and that a appointment would be made if this was a new application.
- I am satisfied there is a need for an administrator to be appointed is for a very narrow limited role – that of giving instructions in the Supreme Court matter, and particularly for either assuming or appointing the role of litigation guardian in that Court.
- I accept that a litigation guardian is necessary in the Supreme Court matter.
- This Tribunal never appoints litigation guardians. Those are decisions for the particular Court in question under the Rules of that Court.
- However in order to appoint a litigation guardian, an administrator for legal matters involving finances must be appointed where there is no consent by the party to the action.
- Who should be appointed?
- The Public Trustee is no longer appropriate as he has declined to be the litigation guardian in the Supreme Court action. I must therefore appoint under sub-section 2 (3) and (4) a new more appropriate administrator.
- As commented above, PMF and her mother GMK are implacably opposed to any appointment. GMK has refused to be appointed even if it was to be considered. She is also a witness in the Supreme Court action and for that reason, could not be the litigation guardian in any event. There is no other family member or friend of PMF who is prepared to accept this role in the Court action.
- PMF’s solicitor has nominated RD as administrator for this purpose. He has advised this Tribunal he is willing to accept the further role of litigation guardian in the Court action and has already advised the Court of this willingness.
- RD is a very experienced professional in this area and is highly suitable for appointment. He impressed this Tribunal with his knowledge and experience and satisfied this Tribunal he will make decisions on behalf of PMF in the Court action in her best interests, despite her implacable opposition to his role on her behalf.
- I will today appoint RD as PMF’s administrator limited to the Supreme Court action for the duration of that action.
- The parties should note, the Tribunal on 16 July 2018 made a limitation order prohibiting publication of information.
- This order has not been affected by this change in the administrator and remains in place. As this is a final order, the outstanding application for directions is dismissed.
- Published Case Name:
- Shortened Case Name:
 QCAT 304
09 Oct 2019