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- Unreported Judgment
HSE QCAT 17
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HSE  QCAT 17
In applications about matters concerning HSE
GAA10687-19; GAA10690-19; GAA12818-19; GAA13511-19; GAA13512-19
Guardianship and administration matters for adults
13 January 2020
29 November 2019
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – limitation order – where the applicant seeks a closure order – where evidence given that matrimonial legal dispute has not finalised – where former partner seeks to attend – whether serious injustice would be caused to the adult by her former partners attendance at the hearing
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – limitation order – where there as an application for confidentiality order – whether it was necessary to withhold information to avoid serious harm to a person
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – limitation order – where an application for a non-publication order was sought by the applicant – whether it was necessary to prevent publication to avoid serious harm
Guardianship and Administration Act 2000 (Qld), s 100, s 103, s 104, s 105, s 107, s 108, s 109, s 113
REASONS FOR DECISION
- Two applications pertaining to substantive matters affecting the administration of HSE’s estate were made and these matters were heard on 29 November 2019. Oral reasons were delivered in relation to these matters on that date. Before those substantive matters were heard, a procedural decision in relation to applications for limitation orders were also made pertaining to applications for a closure order, application for a confidentiality order, and application for a non-publication order. Decisions about these applications were made and announced at hearing on 29 November 2019. These are the documented reasons for the decisions made in relation to these procedural applications for limitations orders, in accordance with section 113 of the Guardianship and Administration Act 2000 (Qld), (‘the Act’).
- Substantive applications before the Tribunal, dealt with separately, concerned a request for directions and authorisation of a conflict transaction.
- 91 year-old HSE has a substantial financial estate administered by the applicant pursuant to previous orders of the Tribunal. She has been engaged in family law proceedings with her former partner BLR since 2015.
Closure order and access
- The applicant administrator sought a closure order to exclude BLR from participating in the hearing of 29 November 2019. The applicant argued that BLR had been engaged in ongoing litigation in the Family Court of Australia which had not yet finalised. She noted that the Tribunal has previously ordered a closure order to protect HSE from injustice in 2017, and these same issues had not changed. The applicant argued that HSE was at risk of being prejudiced in her family law matter, where BLR may seek to use information obtained in the proceeding to affect the outcome of those proceedings. She noted a closure order was previously made by the Tribunal on 14 September 2017 excluded BLR from attending the hearing of that date.
- BLR, in an email to the Tribunal dated 25 November 2019, sought to access information from HSE’s file, and advised that he would be in attendance at the hearing. He indicated that he had concerned with the administrator’s administration of a joint account he had held with HSE which had been subject to family law proceedings. BLR is not an active party to the Guardianship proceedings before the Tribunal. The Tribunal is obliged by section 103 to consider whether BLR has sufficient interest in the matters to be allowed access to inspect documents prior to the hearing.
- BLR confirmed that he had been in a long term de-facto relationship with HSE, but that family law proceedings had been on foot since 2015, and had not yet finalised. He considered that his former relationship gave him sufficient interest in her current affairs.
- The applicant gave evidence that there had been acrimony in the current relationship and BLR had opened HSE’s mail to inform himself of the QCAT correspondence containing the notice of hearing. She indicated that it would be a source of significant distress for HSE if BLR had access to her personal medical and financial information which was before the Tribunal. She indicated that HSE was seriously frail in health and had been diagnosed for palliative care. She was concerned the distress caused by knowledge of BLR’s attendance may cause deterioration in her health.
- The Tribunal was satisfied that the evidence indicated that HSE’s relationship with BLR has terminated many years ago and that BLR did not have sufficient interest to access documentation prior to the proceedings. He is not an interested party to proceedings.
- The Tribunal notes that s 105 of the Act requires hearings to be held in open, but may be closed where the Tribunal has granted a closure order. The applicant brought an application for a closure order, seeking the exclusion of BLR from the hearing. BLR did attend the hearing and sought to participate. He suggested that his presence was necessary so the Tribunal could be aware of his concerns about the administrator’s actions. The Tribunal acknowledged the matters communicated in his written email, of 25 November 2019, clarifying that this provided notice of such matters.
- Section 107 empowers to the Tribunal to exclude people from a hearing only where it is satisfied it is necessary to avoid serious harm or injustice to a person.
- It is desirable that proceedings are held in public, however, the Tribunal is satisfied that, given the acrimonious history between BLR and HSE, and the un-finalised status of family law proceedings between them, it would cause the adult injustice and significant distress which is likely to cause serious harm in her fragile state. On this basis, the Tribunal ordered the exclusion of BLR from the hearing under section 107 of the Act.
- The applicant sought confidentiality orders to restrict the release of information about HSEs personal medical and financial circumstances given the outstanding legal matters.
- She noted that the Tribunal had previously made confidentiality orders in this matter on 14 September 2017, and 30 July 2018.
- Section 109 of the Act states that the Tribunal can withhold a document or part thereof where the Tribunal is satisfied that a confidentiality order is necessary to avoid serious harm or injustice. Given that family law proceedings are not finalised, as outlined above, the Tribunal is satisfied that a confidentiality order is necessary to avoid injustice to HSE.
- The applicant also sought a non-publication order prohibit the publication of information about the decision.
- The Tribunal may only grant this application to the extent necessary pursuant to s 108, where it is necessary to avoid serious harm or injustice. The evidence indicates that HSE has had a history of international acclaim of which she continues to be aware and is noted to be sensitive to publication of information about her in the public domain. For reasons noted above, as well as the potential impact on HSE’s physical and mental health, the Tribunal consider it is necessary to prohibit publication of all decisions and reasons to avoid serious harm and injustice to HSE.
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 QCAT 17
13 Jan 2020