WYJ v The Public Trustee of Queensland
[2018] QCATA 11
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- WYJ v The Public Trustee of Queensland[2018] QCATA 11
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WYJ v The Public Trustee of Queensland[2018] QCATA 11
WYJ v The Public Trustee of Queensland[2018] QCATA 11
CITATION: | WYJ v The Public Trustee of Queensland [2018] QCATA 11 | |
PARTIES: | WYJ (Appellant) | |
| v | |
| The Public Trustee of Queensland (Respondent) | |
APPLICATION NUMBER: | APL080-17 | |
MATTER TYPE: | Appeals | |
HEARING DATE: | 24 November 2017 | |
HEARD AT: | Brisbane | |
DECISION OF: | Acting Senior Member Guthrie | |
DELIVERED ON: | 30 January 2018 | |
DELIVERED AT: | Brisbane | |
ORDERS MADE: |
| |
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF TRIBUNAL BELOW – FUNCTIONS OF APPELLATE TRIBUNAL – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where appellant submitted that there was no evidence to support the finding that an administrator was never appointed by the tribunal is substantiated – whether there was evidence that an administrator was never appointed by the tribunal – whether an administrator had been appointed was a causal factor– where issue was not critical to the primary decision APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – POINTS AND OBJECTIONS NOT TAKEN BELOW – WHEN NOT ALLOWED TO BE RAISED ON APPEAL – whether the appellant was denied natural justice to explain that she had authority to deal with the settlement sum – where issue was not critical to the primary decision APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH FINDINGS OF TRIBUNAL BELOW – FUNCTIONS OF APPELLATE TRIBUNAL – WHERE FINDINGS BASED ON DOCUMENTARY EVIDENCE – where adult effectively deprived of the legal ownership of his entire estate – where appellant made a gift of adult’s funds to the discretionary trust – whether the appellant ought to have been appointed as the administrator – whether the appellant exercised her power honestly and with reasonable diligence to protect the adult's interests | |
APPEARANCES: |
| |
APPLICANT: | WJY | |
RESPONDENT: | The Public Trustee of Queensland | |
REPRESENTATIVES: |
| |
APPLICANT: | Represented by Ms W Armstrong of Alex Mackay & Co | |
RESPONDENT: | Represented by Ms Kathryn Williams, Office of the Official Solicitor to the Public Trustee | |
REASONS FOR DECISION
- [1]The appellant in this matter, WJY is the mother of WJG (the adult), who is a 21-year-old single man who presently resides in supported accommodation in South East Queensland.
- [2]Acting as the adult's litigation guardian, WJY brought a claim against the estate of her son’s late father for further and better provision from his estate. In June 2014, the Supreme Court of Queensland sanctioned the compromise of the claim in an amount of five hundred thousand dollars ($500,000) (the settlement sum).
- [3]The Court ordered the settlement sum to be paid to the trust account of the applicant's solicitors to be held and released on authority of an administrator appointed by the Queensland Civil and Administrative Tribunal or until further order of the Court.
- [4]On 19 August 2014, the Tribunal appointed WJY as her son's administrator by way of an interim order. Thereafter, using the authority of the interim order, she arranged for the transfer of the settlement sum from the solicitors' trust account into a trust bearing the adult’s name (the trust).
- [5]There have been a number of applications before the Tribunal, including an application for authorisation of a conflict transaction and an application for an administration appointment. Those matters were either dismissed or, on guidance from the tribunal, the applications were withdrawn. The earlier hearings appear to have been beset with miscommunications and misunderstandings and, in the circumstances; they ought not to be considered of significance to the issues presently before the Appeal Tribunal.
- [6]A further application for an administration appointment resulted in the appointment of The Public Trustee of Queensland as the adult's administrator for all financial matters on 15 February 2017.
- [7]Findings by the member in her decision included:
- The withdrawal of the settlement sum from the solicitors' trust account was unauthorised because, at the relevant time, there was no administration appointment;
- That issue, of itself, required the appointment of an administrator to investigate what had occurred;
- Further, the appropriateness of the actual dealing with the adult's funds by transference to a discretionary trust also required investigation.
- [8]It is against that decision that WJY appeals or seeks leave to appeal.
- [9]This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 and by direction of the Appeal Tribunal on 4 October 2017.
Grounds of Appeal
- [10]WJY claims that the identified grounds of appeal include both questions of law alone and mixed questions of law and fact.
- The grounds of appeal based solely on questions of law are:
- There was no evidence to support the finding that an administrator was never appointed by this Tribunal;
- WJY was denied natural justice, in that her attempts to explain that she did in fact have the relevant authority to deal with the settlement sum were overruled by the member.
- The ground of appeal based on a mixed question of fact and law is that on the basis of the evidence that ought to have been before the member, WJY ought to have been appointed as the adult's administrator.
- [11]The appellant refers to the member's assertions and her concern with the fact that the withdrawal of trust funds was unauthorised, was contrary to the order of the Supreme Court, and to the fact that the member's assertions were factually incorrect.
- [12]Further, after attempting to explain the validity of her dealings with the settlement sum, the appellant accepted the member's advice that she did not possess the relevant authority.
- [13]The appellant asserts that the Public Trustee's appointment arose out of the member's uncertainty as to her authority to withdraw the settlement funds from the solicitors' trust account.
- [14]The appellant further claims that leave to appeal should be granted because there is a reasonably arguable case of error in the primary decision and, as a consequence, the appellant will obtain substantive relief.
- [15]In a reconsideration of the Public Trustee's appointment, the appellant submits that the true position is:
- The withdrawal by WJY of the settlement funds was properly authorised;
- WJY applied for authorisation of a conflict transaction which was dismissed in an earlier hearing on the basis it was not necessary;
- The trust was set up solely for the benefit of the adult. WJY is the most appropriate person to be appointed as the adult's administrator. If authorisation is required for a conflict transaction, WJY should be appointed as administrator with accompanying directions for her to apply for such authorisation.
- [16]The Public Trustee submits that in order to establish error, the appellant must show the fact was determinative in a causal sense to the decision made by the Tribunal, and cites Curragh Queensland Mining Ltd v Daniel[1] where the full Federal Court stated:
… a decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in the chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically leads to the decision-maker to take one path in the process of reasoning rather than another and so come to a different conclusion. If a decision is in truth based, in the sense I have described, on a particular fact for which there is no evidence, and the fact does not exist, the decision is flawed whatever the relative importance of the fact.
- [17]The Public Trustee maintains that the refusal to appoint WJY arose, not from the member's perception that the subject transaction was unauthorised, but the perceived detriment to the adult's financial circumstances in the gift of his funds to the trust. Thus, the question of whether or not there was an appointed administrator at the time of the subject transfer of funds was not a critical fact in the chain of the member's reasoning.
- [18]The Public Trustee further submits that the question of WJY’s authority to deal with the adult's funds, and the need for inquiry to be made was not an issue critical to the member's decision. So, whether the transaction was authorised or not, the critical issue was the transaction itself.
Tribunal Findings
- [19]It is common ground between the parties that this appeal relates not only to a question of law, but to a question of mixed fact and law, and leave to appeal must be sought by the appellant.
- [20]In deciding the appeal, the Appeal Tribunal may confirm or amend the decision, or set aside the decision and substitute its own decision.[2]
- [21]The appellant submits the member's decision was based on an incorrect fact, namely her authority to deal with the settlement funds.
- [22]In fact, the member was incorrect in her finding that the transaction was unauthorised. Clearly, the appellant was an administrator at the relevant time.
- [23]But did this factual error form the essential basis for the member's decision? The transcript of the hearing indicates that the member was concerned with two essential facts.
- [24]Firstly, the transaction was unauthorised. And secondly, the transaction itself.
- [25]The member makes a number of references to the transaction, or its effect, including for example:
What’s happened is that money he had he now doesn't have because of this arrangement.[3]
… an independent administrator needs to be appointed … to make sure that he hasn't been disadvantaged by the actions of the solicitor in releasing that money.[4]
So it’s not his money anymore, it’s not his property anymore, and it was before.[5]
...there's going to have to be some consideration about what their response is and whether they have in fact acted in breach of the order and the appropriateness of the trust.[6]
That discretionary trust has essentially removed the –[adult’s] entitlement and placed all of that into the trust. It may be as simple as changing the way the property is held so that it’s now held by [WJG]. But I don't know.[7]
So if we go back to basics and say [WJG] can't manage his own finances. There are some financial issues that need to be determined here around about how the management of his finances and funds and investments but also about the legal structure that’s been put in place and whether that was, first of all, able to be done legal and, secondly, whether its the most appropriate … An independent person needs to be appointed right now to sort this out.[8]
So it may be that the transfer of the money from the trust account … was appropriate. It doesn't appear to be here but maybe that it was. The second question, then, is the transfer of the money into a discretionary trust and was that appropriate and was that the most protective way to manage these funds for [WJG].[9]
- [26]Finally, in her reasons for decision, the member makes the following comments:
So the question that needs to be asked by an administrator will be, first of all, to investigate the transfer of the money from the trust account to the trust fund and then to consider whether the establishment of the trust fund was in [WJG’s] best interest and then also to consider whether the ongoing holding of the property by the trust fund is the most appropriate way to manage the funds received by [WJG] under the Supreme Court order. … The establishment of the discretionary fund raises some concerns for the tribunal in terms of [WJG’s] entitlement to the funds that he received under Supreme Court order. So the independent administrator is required to investigate those issues.[10]
- [27]It is clear from the statements of the member made during the hearing and from her statement of reasons that the movement of funds from the solicitors' trust account was only one of the concerns she held. The Appeal Tribunal does not accept the appellant's submission to the effect that the Public Trustee's appointment arose solely from the member's (incorrect) perception that the transfer was unauthorised.
- [28]What is not in dispute, as the member pointed out on a number of occasions, is that the adult has effectively been deprived of the legal ownership of his entire estate because the appellant made a gift of his funds to the discretionary trust. It is the effect of this transaction which must now incur investigation as to whether the appellant/administrator has exercised her power honestly and with reasonable diligence to protect the adult's interests.[11]
- [29]The member indicated her view that relevant parties may have acted with the best of intentions. But this does not alter the fact that inquiry must be made and, if necessary or appropriate, remedial action considered. In order to maintain the concepts of transparency and accountability, the appellant cannot conduct the inquiry because she is conflicted. The circumstances demand the appointment of an independent administrator.
- [30]Addressing the grounds of appeal:
- The submission that there was no evidence to support the finding that an administrator was never appointed by the tribunal is substantiated. However, whether at the relevant time an administrator had been appointed was not the causal factor in the primary decision.
- The submission to the effect the appellant was denied natural justice in that her attempts to explain that she did in fact have the relevant authority to deal with the settlement sum were overruled by the member is substantiated. However, again, this issue was not critical to the primary decision.
- However, the ground of appeal to the effect that on the basis of the evidence which ought to have been before the member, the appellant ought to have been appointed as the administrator is not substantiated. It is clear from the member's statements and her statement of reasons that, even if the appellant had the requisite authority to deal with the trust account funds, there were far more significant issues to consider, namely the gifting of the adult's assets.
- [31]The relevant principles to be applied in determining whether to grant leave are:
- Is there a reasonably arguable case of error in the primary decision?[12]
- Is there a reasonable prospect that the appellant will obtain substantive relief?[13]
- Is leave necessary to correct a substantial injustice to the appellant caused by some error?[14]
- Is there a question of general importance, upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage?[15]
- [32]The Appeal Tribunal concludes:
- Arguable case of error: While there was an error of fact, it was not a critical factor in the primary decision. It was the gift of essentially the entire estate of the adult which was the critical fact. There is thus no reasonably arguable case of error in the primary decision.
- Prospect of substantive relief: The gift is a matter which requires investigation. A similar proposition was contemplated by attorneys in Re Heller,[16] where Fryberg J held that the proposed gift was not permitted under s 88 of the Powers of Attorney Act 1998. There are similar provisions in relation to gifts by an administrator in s 54 of the Guardianship and Administration Act 2000. The gift in this case is not a matter of factual error and, while it remains an issue to be investigated, the appellant could not reasonably expect to obtain substantive relief at this time.
- Substantial injustice: There is no substantial injustice. The primary decision was reasonable in the circumstances. Whether other administration appointments might be considered at a future time is a matter which may be addressed in due course.
- Question of general importance: There are no issues raised by any party, which suggest the matter is of general importance upon which further argument and a decision might be to the public advantage.
Conclusion
- [33]For these reasons, the Appeal Tribunal finds that the application for leave to appeal ought to be refused, and the appeal ought to be dismissed. Orders are made accordingly.
Footnotes
[1](1992) 34 FCR 212, [27]-[28].
[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147(3).
[3]T1-11.
[4]T1-13.
[5]T1-15.
[6]T1-17.
[7]T1-21.
[8]T1-22.
[9]T1-24.
[10]T1-32.
[11] Guardianship and Administration Act 2000 (Qld) s 35.
[12] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[13] Cachia v Grech [2009] NSWCA 232.
[14]T1-15.
[15] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389.
[16][1999] 2 Qd R 579.