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SK v The Public Trustee of Queensland & DN[2019] QCATA 127

SK v The Public Trustee of Queensland & DN[2019] QCATA 127

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

SK v The Public Trustee of Queensland & DN [2019] QCATA 127

PARTIES:

SK

(applicant/appellant)

 

v

 

THE PUBLIC TRUSTEE OF QUEENSLAND

(first named respondent)

DN

(second named respondent)

APPLICATION NO/S:

APL009-18

ORIGINATING

APPLICATION NO/S:

GAA13827-17

GAA611-16

MATTER TYPE:

Appeals

DELIVERED ON:

17 July 2019

HEARING DATE:

24 May 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Browne

ORDERS:

  1. The application for leave to appeal or appeal filed 10 January 2018 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES –  RIGHT OF APPEAL –  WHEN APPEAL LIES –  ERROR OF LAW –  WHAT IS –  GENERALLY – where the applicant was appointed as guardian and administrator – where the applicant made an application seeking directions about the role of a Tribunal appointed separated representative under s 125 of the Guardianship and Administration Act 2000 (Qld) – whether a representative appointed by the tribunal could obtain direct instruction from an adult – where s 125 of the Guardianship and Administration Act 2000 (Qld) should be construed liberally and in a way that adheres to the General Principles of the Act and remains unfettered – where the application for leave to appeal or appeal is dismissed

Acts Interpretation Act 1954 (Qld), s 14A(1)

Guardianship and Administration Act 2000 (Qld) s 6, s 11, s 12, s 33, 125, s 138, Schedule 1, Schedule 2

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142 (3)(ii)

Bergmann v DAW [2010] QCA 143

Pickering v McArthur [2005] QCA 294

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

APPEARANCES

& REPRESENTATION:

 

Applicant:

In person

Respondent:

No appearance

REASONS FOR DECISION

  1. [1]
    SK seeks to appeal the Tribunal’s decision to refuse his application for directions made under the Guardianship and Administration Act 2000 (Qld) (‘GA Act”).[1] More importantly, SK applied to the Tribunal seeking directions about the role of a representative (KN) appointed by the Tribunal under s 125 of the GA Act.
  2. [2]
    By way of background, SK is the appointed administrator and guardian to make decisions for DN about DN’s financial matters (as the appointed administrator); and  about DN’s personal matters including legal matters not related to DN’s financial or property matters (as the appointed guardian). KN is a lawyer and the appointed representative for DN. KN was appointed by order of the Tribunal under s 125 of the GA Act.
  3. [3]
    After KN was appointed as DN’s representative, SK applied to the Tribunal for directions.  SK’s application to the Tribunal at first instance was premised on the basis that, amongst other things, DN has a common law right to be advised by and to instruct any lawyer representing him.[2] SK sought directions from the Tribunal to convert the appointment of a representative under s 125 of the GA Act to a direct brief; and in the alternative for the Tribunal to direct that KN provide confidential legal advice to DN.
  4. [4]
    A member sitting in the Guardianship jurisdiction refused SK’s application predominantly on the basis that the Tribunal does not have the jurisdiction or power to convert the appointment of a representative under s 125 of the GA Act to a ‘direct brief’.[3] The Tribunal’s reasons are contained in the transcript of proceeding.

The application for leave to appeal or appeal

  1. [5]
    Although there are many grounds of appeal that identify alleged errors of law, the appeal grounds can be narrowed to simply a question of statutory construction of s 125 of the GA Act. More importantly, whether a representative appointed under s 125 of the GA Act can act or represent an adult in the capacity of a lawyer.
  2. [6]
    At the oral hearing of the appeal, SK submitted that at the time of the guardianship hearing below, KN was already appointed as a representative for DN under s 125 of the GA Act. SK submitted that he wanted the learned Member to make a different order; and the learned Member should not have refused his application for directions. SK also submitted that the hearing on 15 December 2017 was not fair because DN was unrepresented.[4] Further, SK submitted that the GA Act, in particular s 125, should be interpreted through Articles 12 and 13 of the Convention on the Rights of Persons with Disabilities and through the general principles contained in the GA Act.[5]
  3. [7]
    SK identified the orders he seeks in the appeal as set out in his application for miscellaneous matters filed in the appeal, as follows:

To replace – “to appoint [KN] as an ordinary representative” with the following-

  1. The Tribunal make an order of declaratory relief that-
  1. GAA125 does not excuse a barrister or solicitor appointed under that section from their common law duty to their barrister and solicitor’s rules when representing an adult at QCAT;
  2. GAA125 does not excuse any representative appointed under GAA125, whether or not they are a lawyer, from their duty to apply the GA Act general principles in exercising the powers of their appointment;
  1. The order of declaratory relief be sent to KN.[6]
  1. [8]
    In the alternative, SK submitted at the oral hearing that he seeks orders in the following terms as identified in the application for leave to appeal or appeal, as follows:

I seek orders that [KN] be appointed as an ordinary legal representative for [DN]- to provide advice, take instructions and maintain confidentiality in accordance with his barristers’ rules, the Queensland Law Society’s guidelines for practitioners on capacity, the common law governing lawyer/client relationships and the [GA Act] General Principles to the extent he is appointed under the Act.[7]

  1. [9]
    The issue that arises in the appeal concerns not only the proper construction of s 125 of the GA Act but also whether the Tribunal can make directions about the role of a representative appointed under s 125. This is because the application before the Tribunal at first instance was an application for directions under the GA Act.[8] Relevantly, the Tribunal has the power under s 138 of the GA Act to give advice or directions about the matter it considers appropriate; or make recommendations it considers appropriate about action an active party should take.
  2. [10]
    Here, the Tribunal directed that SK’s application be refused. It is therefore arguable as to whether the Tribunal’s direction (as distinct from a decision) to refuse SK’s application was in fact its final decision. Section 142(3)(ii) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) mandates that an appeal against a decision that is not the Tribunal’s final decision in a proceeding may be made only if the party has obtained the Appeal Tribunal’s leave to appeal. Leave to appeal will usually be granted according to established principles: whether there is a ‘reasonable argument’ that there is an error in the decision at first instance, and an appeal is necessary to correct a ‘substantial injustice’ to the applicant caused by that error.[9]
  3. [11]
    We have determined that the appeal in this matter is against a decision that is the Tribunal’s final decision because s 138 of the GA Act clearly contemplates that once an application about a matter has been made to the Tribunal, it may, amongst other things, give directions about the matter it considers appropriate. If, however, leave to appeal is required in this matter (because the decision is found not to be the Tribunal’s final decision), we consider that leave should be granted. This is because the issue arising on appeal involves a matter of general importance in the guardianship jurisdiction about the proper construction of s 125 of the GA Act and the role of the representative duly appointed under s 125.

Tribunal findings below

  1. [12]
    The learned Member identified the nature of SK’s application before the Tribunal and gave oral reasons for refusing the application for directions. More importantly, the learned Member identified the directions sought by SK at the commencement of the hearing. That is, SK sought a direction from the Tribunal that KN is appointed in the role of an ordinary representative.  Further, and in the alternative, SK sought directions about how the representative conducts his role, in particular a direction that confidentiality be placed on KN’s submissions should KN give confidential legal advice.
  2. [13]
    The relevant extracts from the transcript are as follows:

Member: Now, [SK], welcome. You’ve filed very recently an application where you want the tribunal…referring to the appointment under s 125 of [KN] as a representative under that section of [DN] [sic]. [SK] has said “Look, he is seeking two directions from the tribunal before the actual hearing of the remaining application made that [KN] in fact is appointed in the role of an ordinary representative”. So someone, I understand you mean, who takes instructions from either [DN] or from yourself, quite properly, as the – either the administrator [for] financial matters or the guardian for legal matters. I think that’s what you’re saying you want.

SK: Ordinary representation…as opposed to separate representation.…[10]

Member: All right. Look. I’ll just go on to the next point then, because I think [SK] anticipates there might be an alternative way of doing this, and what I understand you’re saying in your application is that, as the rep appointed [KN] should be directed – that he should give confidential legal advice to [DN] and that confidentiality placed on all his submissions until [DN] provides instructions or consent to provide the submissions or whatever that [KN] is involved in, probably, submissions to the other parties….[11]

  1. [14]
    The reasons show that the learned Member correctly identified the relevant section of the GA Act that gives the Tribunal the power to appoint a representative for an adult. Relevantly, s 125 of the GA Act provides as follows:

125 Representative may be appointed

  1. If, in a proceeding before the tribunal—
  1. the adult concerned in the proceeding is not represented in the proceeding; or
  2. the adult is represented in the proceeding by an agent the president or presiding member considers to be inappropriate to represent the adult’s interests; the president or the presiding member may appoint a representative to represent the adult’s views, wishes and interests.
  1. A proceeding may be adjourned to allow the appointment to be made.
  1. [15]
    The learned Member observed that DN has a decision-maker appointed to make decisions about his legal and financial matters and that the decision has been made (by the Tribunal having appointed a guardian and administrator for DN under the GA Act) that DN does not have capacity to make decisions about those particular matters. The learned Member said as follows:

Well, he has decision-maker in both matters. He has a decision-maker about legal matters. For financial matters, he has [SK] who is his administrator for all financial matters which is normally taken to include legal matters, and he has specifically [SK] acting as his decision-maker for legal matters not including financial matters. So this application is to be heard by the Tribunal is a combination of those and I think it’s probably more a compensation, but still, even if it was, there is someone –[SK]- who is a decision-maker. So therefore the decision has been made that [DN] does not have capacity to make decisions about those particular matters. That’s as it currently stands.[12]

  1. [16]
    The learned Member considered whether the Tribunal has the power to convert a separate representative into something else. More importantly, whether the Tribunal has the power to appoint a representative that is not a separate representative under s 125. The learned Member said as follows:

How has the Tribunal got the power to convert a separate representative into something else? Where’s our power to appoint a representative that’s not a separate representative under s 125?[13]

  1. [17]
    The learned Member made observations about s 125 of the GA Act as operating in the context or situation when someone cannot or does not instruct a lawyer.[14] The relevant extract from the transcript is as follows:

…There’s no one representing the person – accepting instructions. The whole purpose of s 125 [of the GA Act] is when someone cannot or does not instruct a lawyer.[15]

  1. [18]
    The learned Member ultimately made findings about the construction of s 125 of the GA Act. In particular, the learned Member found that s 125 of the GA Act does not give power to the Tribunal to appoint a lawyer who must then accept instructions from the person.[16] The learned Member said:

That’s right. Sorry, yes, you’re right, But I’m saying that there’s nothing in that that gives power to the Tribunal to appoint a lawyer who must then accept instructions from the person. That’s how it has been interpreted and that’s how I’m…The decision that I intend to make is that it does not give the Tribunal that power…[17]

  1. [19]
    The learned Member considered SK’s submission advanced in the hearing concerning DN. That is, SK argued that there is an issue for which DN needs legal advice in order to protect his interests in ‘the other matter’. The learned Member identified that SK was seeking some confidential orders that submissions formulated by KN are to be kept confidential from the Tribunal and all other parties, until or unless there is instructions and consent from DN to the provision of those submissions to the Tribunal or to the other parties.[18]
  2. [20]
    The learned Member observed the issue before her as one concerning separation between a direct instruction of a lawyer and a separate representative. The learned Member said that the direct-instructed lawyer must tell the Tribunal what he is instructed to tell the Tribunal, regardless of what he believes in his own heart is the interests of the person. The learned member observed that with a representative under s 125 of the GA Act, they have an obligation under the Act to tell the Tribunal what they think are the interests meaning the adult’s views, wishes and interests.[19] The learned Member said:

…Where there’s a separation between a direct instruction of a lawyer and a separate representative, the direct-instructed lawyer must tell the Tribunal the- what is- he’s instructed to tell the Tribunal, regardless what he believe in his own heart is the interests of the person. He can – if he thinks it’s such a dichotomy between the interests and what he is instructed to do, he should then remove himself. He or she should remove himself from the role, But with a representative under [s 125 of the GA Act] – they’ve got an obligation under the statute to tell the Tribunal what the – what they think as in that role are the interests. The tribunal may accept what they say or may not accept what they say. But what [SK’s] saying – well, you know – that is materially different from a direct brief, from a direct representative…[20]

  1. [21]
    The learned Member ultimately found that the Tribunal does not have the jurisdiction to convert the appointment of a representative under s 125 of the GA Act into a direct brief. The learned Member observed that the adult, for whom a representative is appointed, is someone with impaired capacity to instruct lawyers to represent themselves. The relevant extract from the Tribunal’s reasons is as follows:

…I interpret s 125 [of the GA Act] as the tribunal appointing a representative for the statutory purposes of representing to the tribunal the adult’s views, wishes and interests. That section does not on its facts require the separate representative – the representative to act in a manner of a direct brief. That is someone who acts on the instructions of the individual. In fact, it’s – the inference drawn from that section is that the adult is someone with impaired decision-making capacity, lacks capacity to fully represent or instruct lawyers to represent themselves without a decision-maker being in place or an agent being in place. Therefore, my view is that the tribunal does not have the jurisdiction to convert the appointment under s 125 into a direct brief. So I say “no” to your – primary part of your application.[21]

  1. [22]
    The learned Member made findings about SK’s directions sought in the alternative concerning a confidentiality order. The learned Member considered that this (the confidentiality order) was so that KN can provide confidential legal advice to DN and that the order has the effect of restricting the filing of KN’s submissions to the Tribunal and the distribution of those submissions to the other parties.[22] The learned Member observed that the purpose of the representative is to inform the Tribunal of the adult’s views, wishes and interests. The learned Member did not consider that it was appropriate to place a confidentiality order over the submissions, if any, prepared by the representative KN. The learned Member said that after consulting with DN, KN should file the submissions in the Tribunal and provide them to the active parties under the procedural fairness provisions. The learned Member ultimately found that she was not persuaded that she should make the confidentiality provisions requested by SK and refused the application.[23]

Grounds of appeal

  1. [23]
    In the oral hearing of the appeal, SK submitted that the error in the learned Member’s decision lies in her finding that the Tribunal does not have the jurisdiction to convert the appointment of a representative under s 125 of the GA Act into a direct brief.
  2. [24]
    SK submitted that his objective in filing the application for directions was to get DN legal representation. SK submitted that he is not challenging the appointment of KN. SK submitted that KN is the appointed Barrister and should be acting as a Barrister.
  3. [25]
    SK submitted that the learned Member did not address the arguments identified in support of the application for leave to appeal or appeal: the hearing was not fair as DN was unrepresented and DN’s appointed representative did not attend or make a submission; the learned Member was wrong in asserting that the Tribunal lacks jurisdiction to appoint ordinary representation; and the Tribunal did not address the matters of law now set out in the application for leave to appeal or appeal. SK identifies a number of grounds of appeal, now summarised below[24]:
    1. DN has a common law right to be advised by and to instruct any lawyer representing him.
    2. The Public Trustee and Public Guardian have ordinary legal representation before the Tribunal and their common law rights remain intact. DN is not equal before the Tribunal with a different class of legal representation and fewer common law rights than other active parties.
    3. As I have been appointed guardian for legal matters, DN is factually and legally capable of receiving advice and giving instructions.
    4. The removal of common law rights inherent in ordinary representation on the basis of impairment breaches State and Federal anti-discrimination legislation.
    5. Section 125 of the GA Act contains no language to authorise the removal of DN’s common law rights to receive legal advice, give instructions and maintain confidentiality or to excuse [KN] from his common law obligations as a lawyer.
    6. QCAT does not have the inherent common law parens patriae jurisdiction to appoint a separate representative for adults.
    7. The Tribunal must interpret s 125 of the GA Act through Articles 12 and 13 of the Convention on the Rights of Persons with Disabilities and through the GA Act General Principles.
    8. Courts must not interpret legislation to remove rights unless the legislation has clear language to do so.
    9. The Court of Appeal decision of Bergmann v DAW [2010] QCA 143, at paragraph [42] regarding the GA Act states – ‘Also it would be wrong to view this legislation as detracting from common law rights. Rather, the Act is remedial in nature and protective of the rights and property of incapacitated person…’.
    10. There is nothing in s 125 of the GA Act to prevent the appointment of ordinary legal representation which easily and obviously conforms to the definition of representing the adult’s views, wishes and interests.
    11. With regard to a confidentiality order and the necessity to avoid injustice and harm, if [KN] is not appointed as an ordinary legal representative, [KN] has no way of protecting [DN’s] interests. DN has retained a lawyer for a matter other than those before the Tribunal. This matter involves the Public Guardian and Public Trustee who are active parties in the matters before the Tribunal. As DN has no privileged confidentiality with KN, all privilege information about the other matter must be withheld from KN. KN has no way of protecting DN’s interests in that other matter in his submissions to the Tribunal and other parties.

Discussion

  1. [26]
    In our view there is no error in the Tribunal’s refusal of the application for directions. For reasons explained below, the learned Member correctly found that the Tribunal does not have the jurisdiction to convert the appointment of a representative under s 125 of the GA Act into a direct brief.
  2. [27]
    The GA Act, amongst other things, gives the Tribunal the power to appoint guardians and administrators to manage the personal and financial affairs of adults with impaired capacity (under s 12 and s 33 of the GA Act). There is also power under s 125 of the GA Act for the Tribunal to appoint a representative to represent the adult’s views, wishes and interests.
  3. [28]
    Chapter 2 of the GA Act sets out acknowledgements, the purpose of the Act and the way purpose is achieved. The purpose of the GA Act is to strike an appropriate balance between- the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and the adult’s right to adequate and appropriate support for decision-making.[25] 
  4. [29]
    The GA Act mandates that a person or other entity who performs a function or exercises a power under the Act must apply the ‘general principles’.[26] Under the general principles an adult is presumed to have capacity for a matter and recognises the right of all adults to the same basic human rights regardless of a particular adult’s capacity.[27]
  5. [30]
    Relevantly, the general principles under the GA Act also recognise an adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter. This is achieved, for example, by giving the adult any necessary support, and access to information to the adult to participate in decisions affecting the adult’s life and taking into account the adult’s views and wishes and exercising a function or power under the Act in a way that is least restrictive of the adult’s rights.[28]
  6. [31]
    Section 125 of the GA Act clearly permits the Tribunal to appoint a representative for an adult. In performing a function under the GAA, the Tribunal must apply the general principles. The appointment of a representative to represent the adult’s views, wishes and interests is consistent with the general principles summarised above.
  7. [32]
    An interpretation of s 125 of the GA Act in a way that would require a representative whether he or she holds a legal qualification to take and act only on instructions from the adult would fetter the power or role of a representative duly appointed. We see the role of a representative duly appointed by the Tribunal as being critical to ensuring that the general principles under the GA Act are adhered to such as, for example, taking into consideration the adult’s views and wishes. In addition, s 125 enables not only the adult’s views and wishes to be communicated but also the adult’s interests to be represented.  It may be the case that the adult’s views and wishes do not align with their interests. In our view, the role of the representative appointed under s 125 should not be confined to simply expressing to the tribunal the adult’s views and wishes. To ensure that an adult who has been found to have impaired decision making capacity is able to properly participate in proceedings, the representation of the adult’s interests should not be limited or prevented. The Tribunal can exercise the discretion to appoint a representative for an adult under s 125 only if the adult is not represented or the adult is represented in the proceeding by an agent the president or presiding member considers to be inappropriate to represent the adult’s interests[29]. These preconditions in our view reflect the importance placed by the legislature on the representation of the adult’s interests. The representative appointed by the tribunal in performing their role should adhere to the general principles set out under the GA Act, as discussed above.
  8. [33]
    SK’s submission that the adult has a common law right to be advised by and to instruct any lawyer representing him is misconceived. Here, DN has an appointed guardian to make decisions about his legal matters not related to his financial or property matters. DN has an administrator appointed for legal matters relating to the adult’s financial or property matters. A ‘legal matter’ as defined under the GA Act includes a matter relating to, amongst other things, the use of legal services to obtain information about the adult’s legal rights; and the use of legal services to undertake a transaction; and the use of legal services to bring or defend a proceeding before a court or tribunal.[30]
  9. [34]
    As observed in Bergmann v DAW[31] it is implicit in s 12 and s 33 of the GA Act that an administrator appointed (and similarly, as is the case here, a guardian appointed for legal matters not related to financial or property matters) assumes the powers in respect of those matters of the adult in respect of whom the appointment is made, to the exclusion of the adult, except to the extent that the Tribunal orders otherwise.[32] In Bergmann, Muir JA observed as follows:

…The words “that the adult could have done if the adult had capacity for the matter when the power is exercised” in s 33(2) strongly imply that where an administrator is appointed in respect of an adult, the adult lacks capacity and, by inference, the power to make decisions in respect of financial matters.[33]

  1. [35]
    Relevantly, s 33 of the GA Act provides that a guardian and an administrator are each authorised to do, in accordance with the terms of their respective appointments, anything in relation to the relevant matters that the adult could have done if the adult had capacity for the matter when the power is exercised.
  2. [36]
    We interpret the effect of s 33 of the GA Act, as being substituted decision making for the adult’s personal matters and financial matters, to the exclusion of the adult, except to the extent that the Tribunal orders otherwise. It therefore follows that the guardian duly appointed to make decisions about DN’s personal matters that includes the use of legal services to obtain information about DN’s legal rights, has the power, as the substituted decision maker to use legal services necessary to ensure that DN’s interests are protected. Similarly, the administrator duly appointed has the power to use legal services relating to legal matters relating to the adult’s financial or property matters.
  3. [37]
    SK’s contention that DN is not equal before the Tribunal on the basis that the Public Guardian and the Public Trustee have ordinary representation and DN therefore has fewer common law rights and is not equal before the Tribunal is also misconceived.
  4. [38]
    As observed by the learned Member, DN has a substituted decision maker appointed (meaning an appointed administrator and guardian) to make decisions about DN’s personal and financial matters including legal matters. Further, DN has a representative appointed to represent DN’s views, wishes and interests to the Tribunal.
  5. [39]
    We do not consider, however, that by reason of the appointment of a guardian and administrator that would require the Tribunal to have made necessary findings, amongst other things, about DN’s decision making capacity (for the purposes of s 12 of the GA Act), DN is now presumed to no longer have any common law rights to participate in decision making, as contended by SK. In particular, SK raises a number of contentions about s 125 of the GA Act citing Bergmann that s 125 could not authorise the removal of DN’s rights to receive legal advice and give instructions.
  6. [40]
    As observed in Bergmann, an adult with impaired capacity may, nevertheless, retain some decision making capability, with or without support for decision making. Further, as observed in Bergmann, the GA Act contemplates that the Tribunal will identify the extent of any interference with an impaired adult’s decision making capacity and make appropriate orders to address the question of decision making support.[34] In Bergmann, Muir JA said:

It is implicit in ss 5 and 6 that an adult with impaired capacity may, nevertheless,

retain some decision making capability, with or without support for decision making. This does not necessitate a conclusion contrary to the one just expressed. The Act contemplates that orders of the Tribunal will identify the extent of any interference with an impaired adult's decision making capacity and that such orders address, where appropriate, the question of decision making support. The words "that the adult could have done if the adult had capacity for the matter when the power is exercised" in s 33(2) strongly imply that where an administrator is appointed in respect of an adult, the adult lacks capacity and, by inference, the power to make decisions in respect of financial matters.[35]

  1. [41]
    We agree with the observations made by Muir JA in Bergmann and the following passage from His Honour’s reasons (footnotes omitted):

Also, it would be wrong to view this legislation as detracting from common law rights. Rather, the Act is remedial in nature and protective of the rights and property of incapacitated person. As such, the legislation should be construed liberally…[36]

  1. [42]
    An adult does not have the power to make decisions about matters which are expressly covered in the terms of the Tribunal’s order appointing a substitute decision maker to make decisions for the adult. The discretion provided to the President or the presiding member in section 125 of the GA Act provides an avenue for an adult to participate in proceedings before the tribunal. The wording of the section as previously outlined refers to representation of the adult’s views, wishes and interests. In our view consistently with Muir JA’s observations, we consider that the legislation should be construed liberally and in a way that promotes adherence to the general principles. For those reasons, the appointment of a representative should not be fettered.
  2. [43]
    SK has failed to raise any contention in support of the primary ground of appeal as to the proper construction of s 125 of the GA Act.
  3. [44]
    In addressing SK’s remaining contentions raised in the appeal, such as the power to keep information confidential from the Public Guardian and the Public Trustee who are active parties in the matters before the Tribunal, we find no error in the learned Member’s reasons for not making a confidentiality order at the time of the decision.
  4. [45]
    As discussed above, the role of a representative is to represent DN’s views, wishes and interests. An interpretation of s 125 of the GA Act that will best achieve the purpose of the Act is to be preferred.[37] It is settled law that an interpretation of a section should be consistent with the language and purpose of all of the relevant statutory provisions.[38]
  5. [46]
    We interpret s 125 of the GA Act liberally and find that the appointment of the representative should be unfettered. An order requiring the representative to keep information such as submissions confidential so as to prevent disclosure from active parties such as the Public Guardian and the Public Trustee in other matters before the Tribunal, would in our view fetter the representative’s powers under s 125 of the GA Act. It is of course, a matter for the representative in fulfilling the role under s 125 of the GA Act to take any necessary steps to ensure that the general principles under the GA Act are adhered to such as recognising and taking into account the adult’s basic human rights and the adult’s right to confidentiality of information.
  6. [47]
    There is no error in the Tribunal’s refusal of the application for directions. The application for leave to appeal or appeal is dismissed and we order accordingly.

Footnotes

[1]  Decision made on 15 December 2017. Application for directions filed under s 138 of the GA Act.

[2]  Exhibit 1.

[3]  Transcript of proceedings dated 15 December 2017 and see Tribunal’s directions dated 15 December 2017 in G82652 for applications GAA611-16 and GAA13827-17 (‘Transcript’).

[4]  See submissions filed on 10 January 2018.

[5]  Ibid.

[6]  Application for miscellaneous matters filed 6 August 2018 in APL009-18 and see email from SK to QCAT dated 6 August 2018.

[7]  Exhibit 1 and see the application for leave to appeal or appeal filed 10 January 2018.

[8]  See s 138 of the GA Act.

[9]Pickering v McArthur [2005] QCA 294, [3].

[10]  Transcript, p 1-2, L10-21.

[11]  Transcript, p1-6, L39-46.

[12]  Ibid, p 1-5, L1-16.

[13]  Ibid.

[14]  Transcript, p 1-5, L41-44.

[15]  Transcript, p 1-5, L41-44.

[16]  Ibid, p1-6, L1-5.

[17]  Ibid, p1-6, L7-11.

[18]  Ibid, p1-7.

[19]  Ibid, p1-9.

[20]  Ibid, p1-9, L16-26.

[21]  Transcript, p 1-13, L1-12.

[22]  Transcript, p 1-13.

[23]  Ibid.

[24]  Appeal submissions filed 10 January 2018.

[25]  GAA Act, s 6.

[26]  Ibid, s 11 and see schedule 1.

[27]  Ibid, schedule 1, s 2.

[28]  Ibid, schedule 1, s 7.

[29]  GA Act, s 125(1).

[30]  GA Act, schedule 2, s 18.

[31]  [2010] QCA 143, [35].

[32]  Ibid.

[33]  Ibid.

[34]  [2010] QCA 143, [36].

[35]  Ibid.

[36]  Ibid, [42].

[37]Acts Interpretation Act 1954 (Qld), s 14A(1).

[38] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

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Editorial Notes

  • Published Case Name:

    SK v The Public Trustee of Queensland & DN

  • Shortened Case Name:

    SK v The Public Trustee of Queensland & DN

  • MNC:

    [2019] QCATA 127

  • Court:

    QCATA

  • Judge(s):

    Senior Member Guthrie, Member Browne

  • Date:

    17 Jul 2019

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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