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- Unreported Judgment
LK v BL QCATA 146
LK v BL & Ors  QCATA 146
23 October 2017
Judge Suzanne Sheridan, Deputy President
A/Senior Member Browne
23 October 2017 (ex tempore)
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where applicant sought a declaration of capacity, orders concerning an enduring power of attorney and directions to former attorneys – where the principal of the enduring power of attorney was deceased at the time of the application – where the Tribunal dismissed the application for lack of substance – where applicant appeals the decision – whether the Tribunal erred in law
Queensland Civil and Administrative Tribunal Act 2009, s 47, s 93, s 142
Guardianship and Administration Act 2000, s 82, s 115
Powers of Attorney Act 1998, s 113
Canada (Director of Investigation and Research) v Southam Inc  1 SCR 748
REASONS FOR DECISION
- LK has filed an application for leave to appeal or appeal a decision of the Tribunal made on 17 February 2016. By that decision, the learned senior member dismissed LK’s application for an order about an enduring power of attorney and an application seeking directions.
- The learned senior member dismissed LK’s application predominantly on the basis that it lacked substance, using the power under s 47 of the Queensland Civil and Administrative Tribunal Act 2009, which I shall subsequently refer to as the QCAT Act; and the member provided oral reasons for her decision.
- This matter has a rather protracted history summarised in the learned senior member’s reasons at first instance.
- LK first applied to the Tribunal on 8 May 2014 under the Guardianship and Administration Act 2000 (Qld) for an order about an enduring power of attorney and directions. LK was seeking a declaration as to the capacity of her late father, LRK to execute an enduring power of attorney. The enduring power of attorney was executed on 5 May 2004 and appointed BL, MB or AMP on the basis that any two of them may act as attorney for financial and personal/health matters. LRK died on 28 September 2004. LK also sought a range of orders set out in her filed material, in particular the validity or revocation of the enduring power of attorney and directions to the former attorneys to provide certain documents, including receipts and expenditure for the period from 5 May 2004 to 28 September 2004 inclusive.
- By order of the Tribunal dated 17 February 2016, the applications filed by LK were dismissed.
- LK’s application for leave to appeal or appeal, which for ease of reference shall now be referred to as the appeal application, was filed on 6 July 2016.
- Following directions being made by the Appeal Tribunal for the filing of an appeal book, the appeal application was listed for hearing in Brisbane on 16 June 2017. LK did not appear at the hearing listed on 16 June 2017, and on that date the Appeal Tribunal granted LK’s application for an adjournment of the hearing and made further directions to progress the matter. One of the directions made required LK to indicate to the Appeal Tribunal when she would be in a position to attend an oral hearing.
- LK complied with the Appeal Tribunal’s directions, in particular she advised the Appeal Tribunal as to suitable dates that she would be available to attend a hearing of this matter.
- The appeal application was listed for a hearing today in Brisbane commencing at 9.30 am.
- LK did not attend the hearing today. The Appeal Tribunal granted LK a further opportunity to attend the hearing after adjourning the matter at 9.30am to 11:00am and again adjourning the matter at 11:00am to 2.30pm. Further attempts were made to contact LK by email and telephone during the adjournment of the matter.
- The Appeal Tribunal, having been satisfied that all of the parties, including LK, were notified of the hearing, has determined it is appropriate to proceed to hear the matter in LK’s absence at 2.30pm pursuant to s 93 of the QCAT Act.
- The first issue the Appeal Tribunal is required to address today is whether leave should be granted to LK to file her application for leave to appeal or appeal out of time. This is because the appeal application was filed outside the prescribed period as provided under s 143(4) of the QCAT Act.
- The Appeal Tribunal is satisfied that leave to extend the time for the appeal application should be granted. There was no objection from the respondents, who have filed submissions in response to LK’s application, to the appeal proceeding out of time.
- The next issue the Appeal Tribunal is required to consider is whether leave to appeal is necessary in this matter. This is because LK’s application seeks leave to appeal the learned senior member’s decision predominantly on the basis that her deceased father, the late LRK, was not in a position to authorise the enduring power of attorney.
- Under s 142(3)(b) of the QCAT Act, an appeal in relation to a question of fact or a question of mixed law and fact may only be made with the leave of the Appeal Tribunal. The distinction between questions of law and fact is not necessarily an easy one. We take guidance from a decision of the Supreme Court of Canada in Canada (Director of Investigation and Research) v Southam Inc  1 SCR 748,  that said:
Questions of law are questions about what the correct legal test is, questions of fact are questions about what actually took place between the parties, and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.
- Although LK has sought leave to appeal the learned senior member’s decision, we do not consider that leave is, in fact, necessary in this matter. As we have said, the learned senior member found that the application made by LK at first instance lacked substance and proceeded to dismiss the application under s 47 of the QCAT Act.
- In the appeal application, LK, in detailing the orders that she is asking the Appeal Tribunal to make, focuses on the validity of the enduring power of attorney and contends that she will submit, amongst other things, evidence of her late father, LRK, being totally incapacitated at the time he was presented with the enduring power of attorney. Although the learned senior member observed that there was no evidence to satisfy her that the late LRK had lost capacity for personal matters during the period from 5 May 2004 to 28 September 2004, the applications filed by LK were dismissed because they were found to have lacked substance. This raises a question of law for which leave is not required. We are satisfied that leave is not necessary, and the appeal application will proceed today.
- I have already read into the record the material which has been filed before the Appeal Tribunal in relation to the appeal proceeding.
- The issue that arises on appeal is whether there is an error in the learned senior member’s finding that the applications lacked substance. There is power under s 47 of the QCAT Act to dismiss the proceeding if it considers the proceeding is “frivolous, vexatious or misconceived or lacking in substance or otherwise an abuse of process”.
- In exercising the power under section 47 to dismiss the applications, the learned senior member found that
- the power given under an enduring power of attorney was revoked upon the death of the principal, in this case the late LRK;
- the Tribunal does not have jurisdiction to make compensation orders in circumstances where attorneys have failed to comply with the obligations of law in the discharges of their duties under the Powers of Attorney Act 1998 (Qld). The learned senior member observed that the Tribunal has no power to make orders that would compensate a person for any loss arising from the actions of attorneys; and
- there was no evidence in order to be satisfied that the late LRK had lost capacity for personal decisions during the entire period from 5 May 2004 to 28 September 2004 and observed that it would be almost impossible to ascertain at what stage the powers of the attorneys for personal and health matters actually came into effect.
- Under the Guardianship and Administration Act 2000 (Qld), the Tribunal has the power to make declarations, orders or recommendations or give directions or advice in relation to guardians and administrators, attorneys, enduring documents and related matters.
- Under s 82 of the Guardian and Administration Act 2000 (Qld), the Tribunal has concurrent jurisdiction with the court for enduring documents and attorneys under enduring documents.
- An application may be made to the Tribunal under s 115 for a declaration, order, directions, recommendation or advice in relation to an adult about something in or related to the Guardian and Administration Act 2000 (Qld) or the Powers of Attorney Act 1998 (Qld). The application may be made by the adult concerned or another interested person.
- Once an application has been made about a matter, the Tribunal may under s 138 give advice or directions about the matter it considers appropriate or make recommendations it considers appropriate about action an active party should take. The Tribunal also has the power to give directions to a person who was formally an attorney for a matter for the adult under s 138AA.
- Under the Powers of Attorney Act 1998 (Qld), the Tribunal has the power under s 113 to make a declaration about the validity of an enduring power of attorney, including, amongst others, declaring that a document is invalid if satisfied the principal did not have the capacity necessary to make it.
- Under s 51 of the Powers of Attorney Act 1998 (Qld), the enduring power of attorney is revoked when the principal dies.
- There is no provision in either the Powers of Attorney Act 1998 (Qld) or the Guardian and Administration Act 2000 (Qld) that prevents the making of a declaration as to the validity of the enduring power of attorney, including whether the principal at the time of signing had capacity to make the document after the principal has died.
- In determining this appeal application and considering if the applications at first instance lack substance, a relevant factor must be whether there is any utility in providing the relief sought by LK in circumstances where the powers of the attorney under the enduring power of attorney were never exercised.
- Material before the learned senior member at first instance indicated that the attorneys appointed under the enduring power of attorney never exercised their powers. In their written submissions in response to the appeal, the respondents who filed submissions in response to the appeal confirmed the evidence previously given that they never exercised their respective powers.
- In this appeal, LK seeks relief in the form an order setting aside the Tribunal’s decision at first instance made on 17 February 2016 and a declaration that the enduring power of attorney dated 5 May 2004 is invalid and an order that the enduring power of attorney is revoked. There is no utility in making such an order. There is no utility in granting this relief sought in circumstances where there is evidence before the Appeal Tribunal and the learned senior member that the attorneys never exercised their powers under the enduring power of attorney.
- Given that the power was never exercised, it is simply not necessary to consider whether LK lacked capacity at the time he executed the document. Even if he lacked capacity, the document was never acted upon, and a declaration as to its invalidity would not have any consequence. He is now deceased, and the enduring power of attorney was revoked at that time.
- LK has made no application seeking leave to adduce new evidence and has had an opportunity to respond to the submissions filed by the respondents.
- There is no error in the learned senior member’s finding that the applications made by LK under the Guardianship and Administration Act 2000 (Qld) lacked substance for the purposes of s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). The appeal is refused.
- Published Case Name:
LK v BL, MB and AMP
- Shortened Case Name:
LK v BL
 QCATA 146
Sheridan DP, A/Senior Member Browne
23 Oct 2017