LDY[2025] QCAT 316

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This case relates to a woman, ‘LDY’, aged 90. Other persons involved include:

   1. LDY’s daughter ‘DTA’;
   2. LDY’s son ‘SNA’; and
   3. SNA’s wife ‘EVS’.
2. [2]
   At this stage, I am deciding applications to dismiss proceedings.

Background

3. [3]
   According to documents on the tribunal’s file:

   1. on 26 June 2024 LDY revoked an enduring power of attorney appointing EVS as attorney, and made an enduring power of attorney appointing DTA as attorney; and
   2. on 15 August 2024 LDY revoked ‘all enduring power of attorneys naming [DTA] as Attorney’,^[1] and made an enduring power of attorney appointing EVS as attorney.
4. [4]
   Further, according to documents on the tribunal’s file:

   1. in May 2024 LDY made a land transfer by way of gift such that a property that had been held by her solely was to be held jointly with SNA;
   2. in June 2024 LDY filed a caveat in the land registry asserting that she had been misled by SNA and that the transfer had been intended to make herself and SNA tenants in common rather than joint tenants;
   3. in July 2024 LDY sought to remove the caveat;
   4. in September 2024 LDY made a further similar land transfer by way of gift for SNA’s benefit; and
   5. on 23 September 2024 the Magistrates Court made a temporary domestic violence protection order requiring DTA to refrain from domestic violence against LDY, SNA and EVS and not to contact those persons.
5. [5]
   On 17 September 2024 DTA filed an application in the tribunal for an order about an enduring power of attorney. She seeks declarations to the effect that the June 2024 enduring power of attorney is valid and operative, and that any later enduring power of attorney is invalid. DTA contends that LDY is highly susceptible to influence by SNA.
6. [6]
   On 7 April 2025 EVS filed an application for dismissal of DTA’s application, primarily on the basis that LDY ‘does not have impaired capacity’.^[2] EVS supplied a short letter from LDY’s general practitioner dated 31 December 2024. The doctor said he had assessed LDY’s decision-making capacity that day. He commented:

She was able to communicate her intentions freely and was not be coerced [sic]. She has adequate appreciation of the consequences of her decisions and she was also able to explain her reasoning for making decisions.

I assess that she has adequate decision-making capacity.^[3]

7. [7]
   EVS also submits that DTA’s application was filed ‘to intimidate and harass [LDY]’.^[4] Further, EVS submits, the fact that DTA is respondent to the domestic violence order, as well as DTA’s conduct toward LDY at various times, means she is not fit to be a decision-maker for LDY.
8. [8]
   On 11 April 2025 LDY filed an application for miscellaneous matters – guardianship. She seeks:

   1. dismissal of DTA’s application, primarily on the basis ‘NO DEMENTIA  NO IMPAIRED CAPACITY’;^[5]
   2. directions;
   3. to be joined as an active party;
   4. recognition of an order under another law; and
   5. a closure order.
9. [9]
   On 27 June 2025 the tribunal initiated an application for dismissal because some of the applications made by LDY appear to be misconceived. The tribunal directed that the tribunal-initiated dismissal application, and the applications for dismissal of DTA’s application, would be decided on the papers after written submissions were received from DTA and LDY. Those submissions have since been received.

Legal framework

10. [10]
    Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) permits the tribunal to dismiss an application that is frivolous, vexatious, misconceived, lacking in substance, or otherwise an abuse of process, rather than allowing the application to proceed to a full hearing on the merits.
11. [11]
    Such a power should be exercised cautiously, such as where there is no reasonable prospect that the application can succeed.^[6]
12. [12]
    DTA’s application is for orders under section 113 of the Powers of Attorney Act 1998 (Qld) (‘Powers of Attorney Act’). Procedural provisions in the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’) also apply.^[7]
13. [13]
    Section 41 of the Powers of Attorney Act explains when a principal has capacity to make an enduring power of attorney. Capacity includes understanding the nature and effect of the enduring power of attorney.
14. [14]
    Section 113 of the Powers of Attorney Act permits the tribunal to decide the validity of an enduring power of attorney.^[8] The tribunal may declare an enduring power of attorney invalid if the principal did not have the capacity necessary to make it, or if it does not comply with requirements of the Act, or if ‘it is invalid for another reason, for example, the principal was induced to make it by dishonesty or undue influence’.^[9]

Tribunal-initiated application for dismissal of some of LDY’s applications

15. [15]
    The directions made by the tribunal on 27 June 2025 pointed out why the applications filed by LDY, other than the application for dismissal, appear to be unnecessary or misconceived. If I correctly understand LDY’s submissions in response to the directions, she now concedes the applications are unnecessary or misconceived.

Application for directions

16. [16]
    It appears that the ‘direction’ sought by LDY was an order dismissing DTA’s application. The question of whether DTA’s application should be dismissed falls to be decided in the dismissal proceedings brought by LDY and EVS. The application for directions is unnecessary.

Application to be joined as an active party

17. [17]
    As ‘the adult’ who is the subject of DTA’s application, LDY is already an active party to DTA’s application, under section 119(a) of the Guardianship and Administration Act. Accordingly, the application to be joined is unnecessary.

Application for recognition of an order under another law

18. [18]
    LDY asked the tribunal to recognise the domestic violence order.
19. [19]
    The tribunal’s power to recognise orders is found in Part 9 of Chapter 7 of the Guardianship and Administration Act. This power relates to interstate guardianship and administration orders. Recognition results in the interstate order being treated as if it were an order made by the tribunal.^[10]
20. [20]
    There is no power to recognise a domestic violence order. The application for recognition is misconceived.
21. [21]
    If the order is relevant in the determination of DTA’s application, the tribunal can take it into account. The tribunal has power to inform itself in any manner it considers appropriate.^[11]

The application for a closure order

22. [22]
    A closure order is one closing a hearing or excluding a person from a hearing.^[12]
23. [23]
    It appears that LDY misapprehended what a closure order is. She was not actually seeking an order closing a hearing or excluding a person. The application is misconceived.

Outcome

24. [24]
    As the four applications described above are misconceived or lacking in substance, I dismiss them under section 47 of the QCAT Act.

Applications by EVS and LDY for dismissal of DTA’s application

25. [25]
    EVS and LDY insist that LDY had capacity to make the enduring power of attorney in August 2024. They point to the general practitioner’s opinion. There is also, importantly, a presumption of capacity.^[13]
26. [26]
    On the other hand, I note that the general practitioner’s letter addresses decision-making capacity generally, rather than capacity to make an enduring power of attorney under section 41 of the Powers of Attorney Act.
27. [27]
    Further, it is clear from section 113 of the Powers of Attorney Act that invalidity of an enduring power of attorney may arise from undue influence as distinct from incapacity. DTA’s case is essentially one of undue influence by SNA and/or EVS.
28. [28]
    LDY and EVS deny there was any undue influence. They point to what they say are dishonest or incomplete answers by DTA in DTA’s application.
29. [29]
    As mentioned earlier, EVS has raised issues about DTA’s fitness to be a decision-maker for LDY. However, that is a question that might arise only after any determination that the enduring power of attorney appointing DTA remains in force.
30. [30]
    EVS submits that DTA’s failure to serve a copy of her application upon LDY, SNA or EVS is a basis for dismissal of DTA’s application. However, there is no requirement in the legislation for service by an applicant. Rather, there is a requirement for the tribunal’s registry to serve a copy of an application upon the adult concerned, and to notify other persons of the proceedings.^[14] Active parties may then exercise their right to access relevant documents on the tribunal’s file.^[15]
31. [31]
    In my view, LDY’s advanced age, the frequent changes to her attorney arrangements, the gifting of valuable interests in real property to SNA, and LDY’s vacillation about the first land transfer, could point to susceptibility to influence in relation to the making of an enduring power of attorney. Whether there was actually undue influence by SNA or EVS is something that can only be decided after a hearing, at which parties have the opportunity to present and test evidence. At this stage, though, it appears that DTA has an arguable case. I am not persuaded that her application is lacking in substance or otherwise liable to dismissal under section 47 of the QCAT Act.
32. [32]
    Accordingly, I dismiss the applications by EVS and LDY for dismissal of DTA’s application.

Conclusion

33. [33]
    The remaining application is DTA’s application for an order about an enduring power of attorney. This application will proceed to an oral hearing on a date to be advised.
34. [34]
    Under section 130 of the Guardianship and Administration Act, the tribunal must ensure, as far as practicable, that it has all relevant information to decide a matter. Section 130 allows the tribunal to request or order a person to provide such information. I consider a statement from the witness to the 15 August 2024 documents would be relevant in deciding DTA’s application. Accordingly, I have directed the tribunal’s registry to request a statement.