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HLD v HS[2016] QCATA 26

CITATION:

HLD v HS & The Public Trustee of Queensland [2016] QCATA 26

PARTIES:

HLD

(Appellant)

V

HS

The Public Trustee of Queensland

(Respondent)

APPLICATION NUMBER:

APL323-14

MATTER TYPE:

Appeals

HEARING DATE:

30 November 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Stilgoe OAM

Member Allen

DELIVERED ON:

5 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. Appeal dismissed

CATCHWORDS:

APPEAL – GUARDIANSHIP – where Public Trustee of Queensland appointed as administrator – where applicant seeks to appeal to appeal on grounds of error by denial of natural justice.

Guardianship and Administration Act 2000, ss 12 and 163

Queensland Civil and Administrative Tribunal Act 2009, ss 28 and 143

Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550

APPEARANCES:

The following parties appeared at the hearing by teleconference:-

HLD; Ms Michelle Vitikun, representing the Public Trustee of Queensland; Ms PC and Ms NS.

REASONS FOR DECISION

Senior Member Stilgoe OAM

  1. [1]
    In this matter, the appeal tribunal consisted of Member Allen and me. I had the advantage of reading Member Allen’s reasons for decision in draft. I agree with his reasons, and his conclusions and the order he proposes.

Member Allen

  1. [2]
    HLD is subject to an order of the Tribunal made on 30 April 2014 appointing HS as her guardian for decisions about accommodation and the provision of services and the Public Trustee of Queensland as her administrator[1].
  2. [3]
    She is dissatisfied with the Tribunal’s decision to appoint the Public Trustee as her administrator and has made an application for leave to appeal if necessary and to appeal the decision of the Tribunal. HLD is an eligible person and may appeal the decision as provided under the QCAT Act[2]. An appeal may be on grounds involving error of law or questions of fact or mixed law and fact. An appeal on a question of fact or mixed law and fact requires the Tribunal’s leave to appeal.
  3. [4]
    The grounds of appeal raised by HLD may be summarised as follows:-
    1. The member only asked her one question about how much money she got a fortnight. Which she answered. The member then asked the three other ladies in the hearing room questions;
    2. HLD got upset while listening to the questions and she yelled out and she was sent out of the hearing room;
    3. She was not in the room when the member made her decision.
  4. [5]
    HLD stated in her submissions to the Tribunal at the appeal hearing that she wanted the opportunity to take control of her finances and that she did not see the tribunal member was in error. She stated that her complaint was that she was not given an opportunity to speak. The member spent a lot of time speaking to others. That she was out of the hearing room when the decision was made. She said she feels she can control her own money. She stated that being with the Public Trustee means she is always asking for her own money and she has to come up with a reason why she needs her own money.
  5. [6]
    I consider that the grounds raised by HLD go to the question of whether or not the member accorded HLD natural justice when hearing the application. The Tribunal when hearing a matter is required to observe the rules of natural justice.[3] In particular, the hearing rule applies to a Tribunal where it is empowered to make a decision that will affect the rights, interests or legitimate expectations of a person.[4] A person whose interests may be affected by a decision of the Tribunal must be given an adequate opportunity to put evidence and reasoned arguments before the Tribunal in an attempt to seek a favourable outcome.
  6. [7]
    If a member has not accorded a party natural justice by failing to allow the party to be heard that is an error of law and there is then no need to give leave to appeal.
  7. [8]
    I have had the advantage of reading a transcript of the hearing of the application. The member stated in her introduction what issues would be discussed at the hearing in regard to HLD’s capacity to make decisions and the need for an administrator. She asked HLD a series of questions about her income and her budget, including questions about household bills and how they are provided for. HLD was given ample time to answer those questions. The member then asked HLD questions about her future plans. These questions took up 9 pages of the transcript.
  8. [9]
    The member then asked questions of HLD’s carers and her sister, HS with HLD also making her own submissions when she felt the need.
  9. [10]
    There was a short adjournment and when the hearing resumed a discussion occurred in regard to an enduring power of attorney executed by HLD and questions as to whether or not it was valid. The member made her intention to appoint the Public Trustee of Queensland clear and HLD continued to submit that this should this not occur. At the end of the hearing, the member announced the Tribunal’s decision and gave the parties the opportunity to leave the hearing before she gave her oral reasons for the decision. The parties then left the hearing prior to the member giving oral reasons for decision.
  10. [11]
    In her reasons, the member gave a summary of the evidence including the oral evidence of HLD and noted that HLD vehemently opposed the appointment of the Public Trustee. The member made findings in regard to HLD’s capacity to make decisions, the need for decisions to be made and who would be an appropriate as administrator in accordance with the requirements of s 12 of the GAA Act. The findings of the member were open to her on the evidence and she was satisfied of the matters she was required to be to make an appointment of an administrator.
  11. [12]
    In regard to the specific grounds raised by HLD, it is fair to say that her recollection of the hearing is not in accordance with the transcript. HLD was asked numerous questions and participated fully in the hearing. There was the short adjournment where all of the parties left the hearing and, when the hearing recommenced, HLD returned. The member made her decision and announced it while the parties were in the hearing room. The member did record her oral reasons after the parties left the room, which would have been available by way of a CD if requested by HLD. Clearly, the member did not rely on any material, which was not disclosed or discussed in the hearing in the making of her decision.
  12. [13]
    While there is no doubt that HLD is dissatisfied with the Tribunal’s decision to appoint the Public Trustee as her administrator I can find no error in the hearing process in terms of the natural justice nor in terms of the legal test used to make the appointment.
  13. [14]
    The appeal Tribunal may only grant an appeal where there is an error I can find no error in regard to the member’s decision to appoint the Public Trustee as administrator for HLD and so the appeal is dismissed.

Footnotes

[1] S 12 of the Guardianship and Administration Act 2000

[2] S163 of the GAA Act and s 143 of the Queensland Civil and Administrative Tribunal Act 2009

[3] S28(3)(a) of the QCAT Act

[4] Kioa v Minister for Immigration and Ethnic Affairs (1985) 159 CLR 550 at 584 per Mason J

Close

Editorial Notes

  • Published Case Name:

    HLD v HS and The Public Trustee of Queensland

  • Shortened Case Name:

    HLD v HS

  • MNC:

    [2016] QCATA 26

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe, Member Allen

  • Date:

    05 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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