BIELBY[2023] QCAT 345

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   Mrs Bielby^[1] brought an application in the tribunal which was listed for hearing on 23 June 2023. Before the hearing, she applied for leave to be legally represented. On 20 June 2023 I decided to grant leave. Mrs Bielby’s former attorney, Rosaline Devi Miller, has requested reasons for that decision, which I now provide.

Background

2. [2]
   Mrs Bielby appointed Mrs Miller her attorney under an enduring power of attorney made in December 2019 and revoked in October 2022.
3. [3]
   In February 2023 Mrs Bielby applied to the tribunal for orders under section 122 of the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’) for Mrs Miller to provide financial records for the period she was attorney. The records sought included ones relating to the sale of a real property owned by Mrs Bielby. Mrs Bielby contended that not all funds had been accounted for by Mrs Miller.
4. [4]
   Mrs Bielby’s application was prepared by a community legal service, the Caxton Legal Centre. Mrs Bielby sought to be represented by that service at the hearing of her application.
5. [5]
   Although orders were sought against Mrs Miller, she was not automatically a party to the proceeding. Persons entitled to participate in a proceeding for an order under the Powers of Attorney Act are ‘a person joined as a party to a proceeding … or a person the court considers an interested person …’.^[2] The reference to the court is to be read as a reference to the tribunal when the application has been brought in the tribunal rather than the Supreme Court.^[3] Various procedural provisions in the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) and the QCAT Act apply. The reason the Guardianship and Administration Act is engaged was explained in MJ v MET & Ors.^[4] Under section 119 of the Guardianship and Administration Act, certain persons – such as any current attorney (but not a former attorney) – are automatically active parties to a proceeding.
6. [6]
   Under section 119, the active parties to Mrs Bielby’s proceeding were Mrs Bielby, her current attorneys, the Public Guardian and the Public Trustee. As Mrs Miller’s interests would be affected if the tribunal were to make the orders sought, the tribunal notified the parties and Mrs Miller that it was intending to decide whether, under section 42 of the QCAT Act, to join Mrs Miller as a party. The tribunal invited submissions.
7. [7]
   In March 2023 Mrs Miller made a written submission objecting to being joined. On 15 March 2023 the tribunal made directions indicating that it had not joined Mrs Miller as a party, but that the tribunal’s case manager was to continue to send directions, decisions, and in due course a notice of hearing to Mrs Miller so that she could, if she wished, attend the hearing as an interested person. The directions also said that Mrs Miller could apply to be joined as an active party if at some point she sought to be joined.
8. [8]
   Mrs Miller did not file an application to be joined.
9. [9]
   In her submissions on the joinder issue, Mrs Miller addressed the merits of Mrs Bielby’s application to some extent. She said that Mrs Bielby’s complaints had been adequately addressed elsewhere, including by the Public Guardian. Mrs Miller did not provide any source documents to the tribunal to confirm this, however. Mrs Miller also contended that she could not be held solely accountable for Mrs Bielby’s finances because various other people had access to Mrs Bielby’s funds: Mrs Bielby, some of Mrs Bielby’s relatives, and staff at Mrs Bielby’s aged care facility. 
10. [10]
    On 19 June 2023 Mrs Bielby filed her application for leave to be represented. Her submissions included, in summary, that:

    1. if Mrs Miller attended the hearing, Mrs Bielby would be at a disadvantage without legal representation, as Mrs Miller is a lawyer;
    2. she and Mrs Miller had originally been friends;
    3. Mrs Bielby had been unsuccessful in obtaining records from Mrs Miller despite various requests; and
    4. poor health and distress impair Mrs Bielby’s ability to advocate for herself.
11. [11]
    On 20 June 2023 Mrs Miller provided a written submission opposing leave for representation. Her submissions included, in summary, that:

    1. she did not intend to attend the hearing on 23 June 2023, so no disadvantage to Mrs Bielby could arise;
    2. Mrs Bielby’s health conditions were long-standing, and did not prevent her from advocating for herself;
    3. Mrs Bielby had not lost decision-making capacity;
    4. Caxton Legal Centre had made unsubstantiated and irrelevant allegations against Mrs Miller in submissions; and
    5. Judicial Member Forrest SC has observed ‘… I do not consider refusal of leave to be legally represented … creates injustice just because the person you are claiming against happens to be a solicitor’.^[5]
12. [12]
    I note that Mrs Bielby was a 78 year-old widow as at June 2023.

Why was leave for representation granted?

13. [13]
    The Powers of Attorney Act is silent as to representation. Different provisions about representation are found in the Guardianship and Administration Act and the QCAT Act. Section 124(1) of the Guardianship and Administration Act says that ‘an active party may, with the tribunal’s leave, be represented by a lawyer or agent’. Under that section, whether the tribunal grants leave is a matter of a broad discretion. Section 43 of the QCAT Act, in contrast, places a constraint upon granting leave for representation. It begins: ‘the main purpose of this section is to have parties represent themselves unless the interests of justice require otherwise’.^[6] The two provisions are, therefore, inconsistent. Section 124(1), being a provision in an enabling Act, prevails.^[7] It is therefore section 124(1) which is to be applied.
14. [14]
    In deciding whether to grant leave for representation, I was of course not in a position to judge the merits in any concluded way. However, it was clear that Mrs Bielby was contending that Mrs Miller had not supplied all relevant records. Mrs Miller had not demonstrated, in the documents she provided to the tribunal, that she had. 
15. [15]
    An attorney for a financial matter must keep and preserve accurate records of all dealings and transactions made under the power.^[8] Section 122 of the Powers of Attorney Act permits the tribunal to order a former attorney to provide records of transactions ‘under the power’.^[9] If Mrs Bielby could establish that Mrs Miller had conducted transactions as attorney, and had not already provided relevant records to Mrs Bielby, the tribunal could order Mrs Miller to provide the records. The making of an order under section 122 is, however, discretionary.
16. [16]
    It seemed to me that there may be issues to be addressed at the hearing about whether particular transactions had been carried out by Mrs Miller as attorney, or in some other capacity. Further, the member conducting the hearing may have required clarification about whether Mrs Bielby’s concerns had in fact been adequately addressed in previous processes. Caxton Legal Centre, which had been acting for Mrs Bielby in earlier efforts to obtain the records, would have been well-placed to succinctly address these matters. Further, the tribunal receives very few applications for orders under section 122, so such a proceeding is not familiar to most members. I considered that the tribunal would gain assistance from the involvement of a lawyer. Further, legal representation would help Mrs Bielby, an elderly woman with health problems who was seeking a remedy in a process that would have been unfamiliar to her. These factors favoured a grant of leave regardless of whether Mrs Miller participated in the oral hearing.
17. [17]
    The arguments put by Mrs Miller did not persuade me to refuse leave. She asserted that Caxton Legal Centre had made unsubstantiated and irrelevant allegations, but she did not identify the allegations or explain why they were unsubstantiated and irrelevant. Even if she had identified the allegations, whether they proved to be unsubstantiated and irrelevant could probably not have been established prior to the oral hearing. In relation to Mrs Miller’s contention that no injustice would arise if leave was refused, that seems to contemplate section 43(1) of the QCAT Act which I have quoted above. However, section 43 is not the applicable provision.
18. [18]
    The most appropriate exercise of the broad discretion in section 124(1) of the Guardianship and Administration Act was, in my view, to grant the application for leave to be represented.

Conclusion

19. [19]
    Accordingly, I granted leave for Mrs Bielby to be legally represented.