Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCATA
  3. 2019
  4. TJR v The Public Trustee of Queensland and GCB - [2019] QCATA 183

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

TJR v The Public Trustee of Queensland and GCB[2019] QCATA 183

TJR v The Public Trustee of Queensland and GCB[2019] QCATA 183

QUEENSLAND CIVIL AND ADMINISTRATIVE APPEAL TRIBUNAL

CITATION:

TJR v The Public Trustee of Queensland and GCB [2019] QCATA 183

PARTIES:

TJR

(applicant/appellant)

v

THE PUBLIC TRUSTEE OF QUEENSLAND

CGB

(respondent)

APPLICATION NO/S:

APL411-17

ORIGINATING APPLICATION NO/S:

GAA3847-18 GAA4511-17

MATTER TYPE:

Appeals

DELIVERED ON:

20 December 2019

HEARING DATE:

11 September 2018

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Clarkson

ORDERS:

On 11 September 2018:

  1. Pursuant to s 90 of the Queensland Civil and Administrative Tribunal Act 2009 the hearing is closed to any person other than CGB, TJR, the Public Trustee of Queensland and their legal representatives for the purposes of taking evidence and submissions relating to CGB’s financial position.

On 20 December 2019:

  1. The application for leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision made 6 December 2017 is set aside and in substitution therefor a declaration that the suspension and postponement orders were not properly made.

The Tribunal directs that:

  1. The applicant file in the Tribunal and give to each of the respondents one copy of any written submissions upon which he wishes to rely in relation to his application for costs in the appeal, by:

                                       4:00 pm on 10 January 2020

  1. The respondents file in the Tribunal and give to the applicant and to the other respondent one copy of any written submissions upon which they each wish to rely in response to the applicant’s application for costs in the appeal, by:

                                       4:00pm on 21 January 2020

  1. The applicant may file in the Tribunal and give to each of the respondents any written submissions in reply, by:

                                      4:00 pm on 4 February 2020

  1. Unless otherwise directed, the application for costs will be determined on the papers without the need for an oral hearing after 4 February 2020.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – FROM INTERLOCUTORY DECISIONS – where the applicant appealed a suspension order removing him as administrator – where the applicant alleged that the member erred in law by failing to provide him procedural fairness by not providing notice of the hearing  – where the Appeal Tribunal found that the member did not disclose adequate reasons to not give notice of hearing to applicant or to undertake urgent action – where application for leave to appeal is granted – where appeal is allowed 

Guardianship and Administration Act 2000 (Qld), s 11A,  s 31, s 103(1)(a)-(c), s 118 (1)(d), s 155, s 157, Sch 1 

Queensland Civil and Administrative Tribunal  Act 2009 (Qld), s 28 (3)(b), s 66, s 90, s 142 (3)(a)(ii), Sch 3

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564

Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223

Cachhia v Grech [2009] NSWCA 232

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388

Harrison and Anor v Meehan [2016] QCATA 197

House v the King (1936) 55 CLR 499

Leghaei v Director-General of Security [2005] FCA 1576

Marine Hull and Liability Insurance Co Ltd v Hurford (1985) 10 FCR 234

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618

Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

APPEARANCES &

REPRESENTATION:

Applicant:

K N Wilson QC, instructed by Cooper Maloy Solicitors

Respondent:

D B Fraser QC, instructed by the Official Solicitor to the Public Trustee

REASONS FOR DECISION

  1. [1]
    This is an appeal against a decision of the Tribunal to suspend the appointment of an administrator.
  2. [2]
    By order made on 24 October 2014, the Tribunal appointed TJR (the applicant) and The Public Trustee of Queensland (PTQ) as administrators for separate assets comprising the estate of CGB (the adult). These appointments were continued on 7 April 2016. A review of these appointments had been commenced when on 6 December 2017, the Tribunal, exercising the power in s 155 of the Guardianship and Administration Act 2000 (Qld) (the Act) suspended the applicant's administration appointment, with the result that the PTQ became the administrator for the adult for all financial matters (‘the suspension order’). This occurs by operation of s 155(6) of the Act. The Tribunal also made an order postponing the giving of the suspension order to the active parties, other than the applicant, for a period of fourteen days. In addition the learned member made an order that the applicant receive notice of the suspension order from the PTQ ‘as and when appropriate’ (‘the postponement order’).
  3. [3]
    An oral hearing was conducted on 6 December 2017. Notice of that hearing was given only to the PTQ. The adult and the applicant were not given notice of the hearing.
  4. [4]
    Prior to the suspension order being made a directions hearing had been conducted on 27 November 2017.
  5. [5]
    On 14 December 2017, following an application for directions made by the PTQ, the Tribunal made directions relating to the suspension order.
  6. [6]
    On 19 December 2017, the applicant applied for leave to appeal and to appeal the decision to suspend him. The applicant asks that the Appeal Tribunal set aside the orders of 6 December and 14 December 2017.
  7. [7]
    On 16 January 2018, the decision of the Tribunal made on 6 December 2017 was stayed by the President of the Tribunal until 4:00 pm on 6 February 2018 and was to be listed for further mention at 9:15 am on that day. No further orders appear to have been made in the appeal. The Appeal Tribunal understands that the review of the appointment of the administrator has been determined by the Tribunal. The suspension order would have lapsed no later than 6 March 2018.
  8. [8]
    The Appeal Tribunal has the advantage of the transcript of the hearing held on 6 December 2017 which contains, in our view, the member’s reasons for making the orders. Subsequently, the member produced written reasons. It is unclear to us why the member considered it necessary to produce written reasons when it is apparent that oral reasons were given on 6 December 2017.
  9. [9]
    Section 155(1) of the Act provides that an administrator's power may be suspended if the tribunal suspects on reasonable grounds that the appointee is not competent. Section 155(3) of the Act provides a discretion to the tribunal to make such orders without hearing and deciding the proceeding and without otherwise complying with the requirements of the Act. One of the requirements of the Act and relevant here is s 118 of the Act which requires the tribunal to give notice of the ‘hearing of an application about a matter’ to particular persons including the ‘current administrator’, the applicant.[1]In addition, s 103 of the Act provides that each active party in a proceeding must be given a reasonable opportunity to present the active party’s case.[2]
  10. [10]
    A suspension order is not a final decision and cannot extend beyond a period of three months.[3]Further, a suspension order is not made in isolation but rather in the context of a review of the appointment of the substitute decision maker being on foot which was the case here. As a matter of practice, the Tribunal will conduct a hearing in the review proceeding prior to the end of the suspension order. In such cases, in hearing and determining the review, the Tribunal will have the assistance of information obtained by the PTQ during the period of the suspension. Such information may be  relevant to the Tribunal’s determination as to whether the order appointing the administrator should continue or be changed. In making such a determination, the Tribunal must consider s 31(4) of the Act which states that the tribunal may make an order removing an appointee only if the tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.
  11. [11]
    Nothing in the terms of s 155 suggests that an application is required for the Tribunal to make a suspension order. Certainly no formal application for a suspension order or application for an interim order was made in this case. The Tribunal acted on its own volition.
  12. [12]
    The postponement order was made under section 157 of the Act which provides: 
  1. (1)
    The tribunal may, by order (a “postponement order"), postpone notifying, and giving a copy of its decision to, a particular person under section 156.
  2. (2)
    The tribunal may make a postponement order only if the tribunal is satisfied, on reasonable grounds, that making the order is necessary to avoid—
  1. a)
    serious harm to a person; or
  1. b)
    the effect of the decision being defeated.
  1. (3)
    A postponement order has effect for the period specified in the order.
  2. (4)
    The maximum period that may be specified in a postponement order is 14 days.
  3. (5)
    A postponement order may be renewed, but only if the tribunal is satisfied there are exceptional circumstances justifying the renewal.
  1. [13]
    The applicant’s appeal is grounded upon the principles of natural justice, namely, that the Tribunal ought to have given notice to the applicant, and given him the opportunity to be heard on the matter before deciding to suspend him. The applicant submits that in failing to accord him procedural fairness, the Tribunal member erred in law. In support of this contention, the applicant refers to s 28(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (‘the QCAT Act’), which provides that in conducting a proceeding, the tribunal must observe the rules of natural justice.
  2. [14]
    ‘Proceeding’ is defined in Schedule 3 of the QCAT Act as generally meaning a proceeding before the tribunal.
  3. [15]
    Relying on the transcript  of the proceeding on 6 December 2017, the Appeal Tribunal has formed the view that the learned member had already decided to suspend the administrator before the hearing took place so that none of the active parties including the PTQ were invited to provide further information prior to the suspension order being made. In our view, the purpose of the hearing was for the learned member to explain to the PTQ how he wanted the suspension order and postponement order effected:

I’m having this hearing, because I want to ask the Public Trustee to execute their appointment as administrator under the suspended order in a particular way. I want simultaneous visits to Mr Trevorrow at his premises and also specifically to the [business]…[4]

  1. [16]
    As the decision made on 6 December 2017 was not the Tribunal’s final decision, an appeal may be made only if the applicant has obtained the Appeal Tribunal’s leave to appeal.[5]
  2. [17]
    The relevant principles to be applied in determining whether to grant leave to appeal are well established:[6]Is there a reasonably arguable case of error in the primary decision;[7]Is there a reasonable prospect that the applicant will obtain substantive relief;[8]Is leave necessary to correct a substantial injustice to the applicant caused by some error;[9]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.[10]
  3. [18]
    In deciding an appeal against a decision on a question of law only, the Appeal Tribunal may:
  1. (a)
    Confirm or amend the decision; or
  2. (b)
    Set aside the decision and substitute its own decision or
  3. (c)
    Set aside the decision and return the matter to the tribunal who made the decision for reconsideration.[11]
  1. [19]
    In this case the suspension order and the directions made by the Tribunal in line with the suspension order are at an end. Further, the review of the appointment of the administrator has also been determined and the applicant is no longer an administrator for the adult. In the event that the Appeal Tribunal decided it should set aside the decision there would be no utility in returning the matter to the Tribunal for reconsideration. The remaining option for the Appeal Tribunal would be to set aside the decision and substitute some other decision. In a situation where the decision to suspend the administrator is one made not on the application of any party but by the Tribunal in exercising a discretionary power provided for in the Act, the substituted decision would be more akin to some form of declaration by the Appeal Tribunal.
  2. [20]
    The applicant argues that a decision in breach of procedural fairness is an error going to jurisdiction which renders the decision null and void.[12]
  3. [21]
    Turning then to whether or not there is a reasonably arguable case of error, the applicant refers to a number of judicial statements confirming the fundamental or cardinal value of notice, and the provision for the consequent opportunity for a person to address the issues before orders are made affecting that person's interests. However, the applicant does not argue that the Tribunal member erred either in exercising the discretion to suspend the operation of the powers of the administrator nor that the Tribunal member erred in forming the view that the member had reasonable grounds for suspecting that the administrator was not competent.
  4. [22]
    It is not proposed to refer in detail to the applicant's citations in this context.  That is because the application of the principles of natural justice are accepted by the Appeal Tribunal as relevant and critical to the general conduct of Tribunal proceedings.
  5. [23]
    The applicant argues that despite the finalisation of the review of the appointment of the administrator and that the suspension order has ended, that he should be given leave to appeal as he had a legitimate expectation that proper procedures would apply to him, and he has the right to rely on the principles of natural justice to vindicate his reputation which may be damaged by the suspension.  For example, in Ainsworth v Criminal Justice Commission, the High Court stated: It has long been accepted that reputation is an interest attracting the protection of the rules of natural justice.[13]
  6. [24]
    The applicant concedes that there may be circumstances in which the Tribunal may dispense with notice under s 155, but submits in essence that the justification must depend upon the circumstances of the case, and ultimately it ought to be demonstrated on a reasonably held view that there is an element of urgency, or that the giving of notice may frustrate the reason for the suspension of an appointee.
  7. [25]
    The applicant submits in this case, there is no suggestion of urgency outlined in the transcript of the suspension hearing or in the member's reasons for decision, and the member did not describe any compelling reason why the ordinary principles of natural justice did not apply in this case.
  8. [26]
    The respondent, PTQ made the following submissions:
  1. a.The applicant proceeds from a fundamentally flawed position in that it is not the interests of the applicant which should be protected, but those of the adult.
  1. b.Where the purpose of s 155 is to allow the tribunal to suspend an administrator who is perceived not to be competent, it is likely that many circumstances will arise where notification to the administrator will likely defeat the operation of the provision.
  1. c.Supported by the provisions of s 129 of the Act, dealing with interim orders, the statutory context provides that any procedural fairness requirement which would otherwise require notification to an administrator, is not necessary when there is a concern that an adult's interests are being adversely affected.
  1. d.The relevant inquiry when considering questions of procedural fairness is whether the decision-maker proceeded fairly in the statutory context.
  1. e.The member's reasons for decision identified concerns with the actions of the applicant, the operation of the adult's business, and with potential breaches of relevant legislation relating to the duties of an administrator. The member demonstrated cogent reasons for proceeding as he did, and the decision plainly advances that purpose.  The member's reasons identified bases on which a reasonable person could have come to a similar conclusion. 
  1. [27]
    An order removing an appointee can only be made out of the appointment review process which is provided for in s 31 of the Act. The Tribunal can conduct a review of the appointment of an administrator for an adult in the way it considers appropriate.[14]Section 31 does not contain a specific provision, as s 155 does, giving the Tribunal a discretion to make an order without complying with the requirements of the Act.
  2. [28]
    Interestingly s 155(3) states that the tribunal may make the suspension order ‘in a proceeding without hearing and deciding the proceeding’. Arguably, ‘the proceeding’ is the review of the appointment of an administrator and the making of a suspension order is not a proceeding of itself. Further, the tribunal may make the order without otherwise complying with the provisions of the Act.
  3. [29]
    Section 155(3) clearly provides a discretion to the tribunal to make a suspension order without hearing and deciding the proceeding or otherwise complying with the Act.
  4. [30]
    As Kitto J said in Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation[15]:

… [T]he books are full of cases which illustrate both the impossibility of laying down a universally valid test by which to ascertain what may constitute such an opportunity [“to correct or contradict any relevant statement prejudicial to their view”] in the infinite variety of circumstances that may exist, and the necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place. By the statutory framework I mean the express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter: cf. Ridge v. Baldwin. As Tucker L.J. said in Russell v. Duke of Norfolk, in a passage approved by the Privy Council in University of Ceylon v. Fernando, there are no words which are of universal application to every kind of inquiry and every kind of tribunal: “the requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth”. (Citations omitted.)

  1. [31]
    We consider that how the Tribunal proceeds when considering whether to suspend an administrator will depend on the circumstances of the case. It is not the case that either the notice and access provisions are complied with or not; or the proceeding is heard and determined or it is not. It is a broad discretion. The appropriate course may be, for example, to obtain a written response from the administrator about matters raised in an audit of the accounts provided to the Tribunal by the administrator within a relatively short time frame before considering a suspension order and there may be circumstances in which the Tribunal may make a suspension order without hearing and deciding the proceeding and otherwise complying with any requirements of the Act including giving notice in accordance with s 118 and giving access to relevant material in line with s 103 of the Act.
  2. [32]
    We consider that before making a suspension order the Tribunal must turn its mind to whether the decision maker appointed by the Tribunal and therefore previously found to be appropriate and competent should be given an opportunity to respond to any concerns identified by the Tribunal regarding their competence. Whether the Tribunal member will ultimately take that step will depend, as contended by the applicant, on the degree of urgency or a view that the purpose of the suspension may be frustrated by giving notice to the decision maker, bearing in mind that the primary focus of the Act is an adult with impaired decision making capacity.[16]
  3. [33]
    However, the need for urgent action does not necessarily preclude the operation of natural justice.[17]In Marine Hull and Liability Insurance Co Ltd v Hurford[18]Wilcox J categorised such powers into two broad types. The first were ‘powers which, by their very nature, are inconsistent with an obligation to accord an opportunity to be heard.’[19]His Honour held that the very character of such powers normally conveyed an intention to exclude the requirements of fairness, such as hearing rights. The second type was those which sometimes have to be exercised urgently. Wilcox J held that the application of natural justice to such powers were not governed by a single approach. Sometimes it was wholly excluded, sometimes it was excluded when the need for urgent action was established on the facts at hand and sometimes the content of natural justice was simply limited but not excluded.[20]In our view the power to suspend falls into that second category.
  4. [34]
    The parties were not in dispute with the proposition that the Tribunal's primary concern must be to protect the interests of an adult with impaired capacity[21], and that any conflict between the interests of an adult and those of an appointee must be resolved in favour of the former.
  5. [35]
    The Appeal Tribunal accepts the proposition that:

the legal standard of reasonableness must be the standard indicated by the true construction of the statute.  It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.[22]

  1. [36]
    In Minister for Immigration and Citizenship v Li[23]the plurality of the High Court said that the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre decision – which is to say one that is so unreasonable that no reasonable person could have arrived at it nor should Lord Greene MR be taken to have limited unreasonableness in this way in his judgement in Wednesbury’s[24]case.[25]The plurality went on to say that this aspect of his Lordship’s judgement may more sensibly be taken to recognise that an inference of unreasonableness may in some cases be objectively drawn even where particular error in reasoning cannot be identified and further that this is recognised by the principles governing the review of a judicial discretion, which, it may be observed, was settled in Australia by House v the King[26], beforeWednesbury was decided.[27]
  2. [37]
    Further it was stated that an obviously disproportionate response is one path by which a conclusion of unreasonableness may be reached[28]. In line with House v the King[29] the absence of comprehensible reasons for an exercise of a discretion, the court can infer a failure to properly exercise the direction where the decisions lack an evident and intelligible justification.[30]
  3. [38]
    In the transcript of the hearing on 6 December 2017, the learned member said:

…I have come to the conclusion that TJR may no longer be competent. And I’ve lost faith in him. I’m having this hearing, because I want to ask the Public Trustee to execute their appointment as administrator under the suspended order in a particular way. I want simultaneous visits to Mr Trevorrow at his premises and also specifically to the [business]. I have grave concerns about the conduct of the business at the quarry. I want all of the records and all of the assets of that business to be secured. I want there to be no communication with TJR before any of this occurs.[31]

…

I’ll say this, that, having read all this material, I have grave – concerned about what’s happening at the …. And I suspect fraud.[32]

…

And that’s why I have taken this step.[33]

…

I don’t know what’s happening, but, when I looked at – see, part of the issue for the tribunal is, we’ve been relying on the … audits. And they are just ticking and flicking, and they haven’t--they haven’t actually looked at the fact that the money’s going out the back door, and these businesses should not be carried on. There’s this thing raised in the MWM report about a supposed impairment out at the …worth …dollars which means long-term the CGB estate has no value. But there’s no evidence of that whatsoever.[34]

…But I’m not prepared for it to go on any longer.[35]

The annual loss in the next year based on April to September figures is … .

…Yes. Well, the thing is, like, as far as I’m concerned – and I told them from the start that they had no experience in [the business], and they should not do something they don’t know about, and, if they need to keep the quarry going, they keep it going on a minimal basis to stop the triggering of the impairment – not throw all this money at it. And now it has become ridiculous.[36]

…Look, I—my view is that there’s something happening out there, and one of the reasons I want it done like this is there might be two sets of books. There may be equipment that is notionally there and is not there. There’s $400,000 worth of wages and $300,000 worth of income.

…

None of that makes any sense at all. There’s also the issues about the fact that, when TJR touches this administration, CE and RG have to touch it with him. And CGB’s money has been drained every day because a triumvirate’s required. Now that’s absolute rubbish. And part of the thing I want done is I want an audit of all their fees…[37]

  1. [39]
    However, his reasons for the suspension order appear to be confined to these words:

So in terms of section 155, I am satisfied that TJR is not competent, that a relevant interest of CGB has not been or is not being adequately protected; specifically there are serious issues with the businesses carried on by the administrator, indicating that the administrator is allowing the business to incur expenditure which is not prudent, having regard to the income of the business.[38]

  1. [40]
    While we have found that the reasons for the suspension order were expressed orally on 6 December 2017, in case we are wrong in that regard and the reasons for the order are as set out in the written reasons subsequently delivered by the learned member, we have set out the relevant passage from those reasons:

Having regard to the losses incurred by TJR while acting as administrator for CGB and the potential breaches of the GA Act set out above I suspected on reasonable grounds that TJR was not competent to act CGB’s administrator and I suspended his powers to act as administrator.

I was concerned that there may be fraud involved in regard to the activities at the [business] because there had been so much money spent for so little return and even the wages bill had doubled while the income had increased minimally. One explanation for this could have been that while the volumes of [product] produced had increased considerably the prices which were paid to CGB had lessened due to the use of an entity controlled by some of those working at the mine or their associates to purchases the sandstone and on sell it for a profit themselves and not for CJB. I was also concerned that some of the equipment may not have been used at the mine.[39]

  1. [41]
    The question of reasonableness raises a number of issues.  Firstly, was the suspension based on a reasonably held view about the competence of the applicant?  This was not an issue raised by the applicant, but it leads to the second and fundamental issue, namely, was the member's view that there may be fraud or misconduct present in the management of the business, reasonably held?  The answer will have a bearing on whether in the circumstances, the member exercised his discretionary power fairly and reasonably in denying the applicant natural justice. Further still, even if those questions are answered in the affirmative we must consider whether there was such urgency in the matter based on the circumstances it was reasonable that the procedural fairness accorded to the applicant be reduced to no procedural fairness.
  2. [42]
    As to the first issue, the transcript of the hearing and separately the member's reasons for decision outline the learned members concerns with a number of issues, including the applicant's management of the adult's business, and with potential breaches of relevant legislation.  The business was not profitable. We accept that there was some evidence before the learned member upon which he could be reasonably satisfied that the applicant was incompetent. As we have said, this was not challenged by the applicant. The Appeal Tribunal holds that the finding about the applicant's incompetence was one which was open to the member on the evidence before him.
  3. [43]
    As to the second issue, the member's oral reasons refer to concerns around serious issues with the business. During the course of the hearing fraud is mentioned. In the written statement of reasons possible fraud, or diversion of products or equipment is referred to.[40]Clearly, the member did not know precisely what was occurring with the financial aspects of the adult's business, and his description of possible fraud is not considered to be assertions as to the reality, but raised as possible explanations regarding the perceived poor financial position of the business.
  4. [44]
    In these circumstances, the member indicated his intention for the PTQ to secure the records and assets of the business, without prior communication to the applicant.  The necessary inference must be that the member was concerned that the provision of notice, and the consequent delay in conducting a hearing, may frustrate the purpose of the suspension.
  5. [45]
    It is not known if the member's concerns in this regard have been substantiated, and in any event, it is not a relevant consideration here.  In this case, a directions hearing had been held on 27 November 2017 with apparently no issue raised about the accounts which had been provided to the tribunal each year and subject to audit. The administrator had been appointed by the Tribunal since 2014. An allegation of fraud is extremely serious and should not be made without some evidence that there has been deliberate dishonesty. Here the member raised issues of potential dishonesty by employees at the quarry not the administrator himself. According to his reasons he has other concerns regarding the payment of wages and the reasonableness of fees paid to advisors. However, those concerns of themselves in our view do not support a finding of fraud nor a prima facie case of any dishonesty in the administrator’s management of CGB’s financial affairs. The learned member has referred to concerns and possible explanations for those concerns with little reliance on objective evidence to support his stated concerns of fraud or that without the postponement order, evidence would be destroyed. He prefers his own assessment of the accounts to those of the auditors. In our view his reasons lack evident and intelligible justification.
  6. [46]
    There is no doubt that the focus for the Tribunal must be CJB and his care and protection.[41]However, the decision to suspend the administrator in this way and effect the order in the way determined by the learned member would also have an impact on the management of CJB’s assets. The applicant was a director of the relevant company. The suspension order meant that action also had to be taken to remove the applicant as a director. The impact on the management of CJB’s financial affairs does not appear to have been considered by the learned member. The impact on the management of the CJB’s financial affairs was a relevant circumstance to be considered by the learned member in determining the appropriate course. The learned member does not appear to consider the discretion in s 155(3) nor does he provide any reasons as to why he must act so urgently to suspend the applicant.
  7. [47]
    We do not consider that the learned member’s reasons disclose adequate reasons for the need for such urgent action. The reasons do not reveal any explanation as to why for example the matters raised in the reasons such as the payments to advisors and the increase in wages despite limited increase in profit, including the member’s views about possible explanations for the accounts could not have been put to the administrator before any suspension order might be made. In our view simply asserting that one suspects fraud is not sufficient. The learned member’s reasons do not reveal any adequate explanation in the reasons as to why action of such urgency was required such as to reduce the content of procedural fairness to the administrator to nothingness.[42]
  8. [48]
    In relation to the postponement order, there does not appear to be any legislative basis for postponing the giving of a copy of the order to the administrator for a period longer than 14 days as a first order.
  9. [49]
    While there is little practical utility in the appeal as the suspension order ended long ago and the review of the appointment of the administrator has concluded, we find that there is a reasonable arguable case of error by the learned member. Further, we regard the principles in this case of such import that leave ought be given to appeal and further that the appeal be allowed and a formal order of the Appeal Tribunal ought be made setting aside the suspension and postponement orders and substituting therefore a declaration that those orders were not properly made. We make orders accordingly.
  10. [50]
    Previously the Appeal Tribunal had made a non-publication order under s 66 of the QCAT Act prohibiting disclosure of information concerning CGB’s financial positions and his businesses. Consistently with those orders previously made, we closed the hearing on 11 September 2018 to discuss matters relating to CGB’s financial position. That order was made, following application by the respondent which was not opposed by the applicant. We exercised the discretion in s 90 of the QCAT Act. In making that order we were satisfied that disclosure of information about CGB’s financial position which was not publicly available information and which would be commercial in confidence information ought not be published in the interests of justice.
  11. [51]
    The applicant has foreshadowed his intention to seek his costs in the appeal. To that end, we will make directions regarding the filing and serving of any additional submissions upon which the parties wish to rely with the advantage of the Appeal Tribunal’s decision and reasons.

Footnotes

[1]  The Act, s 118(1)(d).

[2]  Ibid, s 103(1)(a), (b) and (c) deal particularly with access to documents before the start of a hearing, during a hearing and the making of submissions respectively.

[3]  Ibid, s 155(4).

[4]  Transcript of Hearing on 6 December 2017 (‘Transcript’), T1-2

[5]  QCAT Act, s 142(3)(a)(ii).

[6] Harrison and Anor v Meehan [2016] QCATA 197, [8].

[7] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[8] Cachhia v Grech [2009] NSWCA 232, [13].

[9]  Op cit 7.

[10] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.

[11]  QCAT Act, s 146.

[12]  Outline of appellant’s submissions [25] referencing Minister for Immigration & Citizenship v Li (2013) 87 ALJR 618; [2013] HCA 18, [48].

[13]          (1992) 175 CLR 564, [27].

[14]  The Act, s 31, see in particular s 31(1) and 31(3).

[15]  (1963) 113 CLR 475, 503-504; as quoted by Justice Robertson in a speech delivered 4 September 2015, ‘Natural Justice or Procedural Fairness’ Federal Court of Australia Digital Law Library.

[16]  The Act, s 11A.

[17]  Matthew Groves, ‘Exclusion of the Rules of Natural Justice’ (2013) 39 (2) Monash University Law Review 285, 305-306.

[18]  (1985) 10 FCR 234 as discussed in the article referred to in footnote 15.

[19]  Ibid , 241

[20]  Ibid.

[21]         The Act, s 11A(1)

[22]         Minister for Immigration and Citizenship v Li [2013] HCA 18, [67] citing Wade and Forsyth,                Administrative Law, 10th ed (2009) at 296.

[23]  [2013] HCA 18.

[24]        Associated Provincial Picture Houses Ltd v Wednesbury Corporation (1948) 1 KB 223.

[25]  [2013] HCA 18.

[26]  Ibid, [68].

[27]  (1936) 55 CLR 499; [1936] HCA 40.

[28]  Ibid, [74].

[29]  (1936) 55 CLR 499.

[30]  Ibid, [75] – [76].

[31]  T1-2.

[32]  Ibid, T1-3.

[33]  T1-3.

[34]  Ibid, T1-3 - T1-4.

[35]  Ibid, T1-5.

[36]  Ibid.

[37]  Ibid, T1-6.

[38]  T1-9.

[39]  Written reasons delivered 6 December 2017, [107]-[108].

[40]         Statement of Reasons, [108].

[41]  The Act, Schedule 1, s 7(5).

[42]  As was found to be appropriate in Leghaei v Director-General of Security [2005] FCA 1576.

Close

Editorial Notes

  • Published Case Name:

    TJR v The Public Trustee of Queensland and GCB

  • Shortened Case Name:

    TJR v The Public Trustee of Queensland and GCB

  • MNC:

    [2019] QCATA 183

  • Court:

    QCATA

  • Judge(s):

    Senior Member Guthrie, Member Clarkson

  • Date:

    20 Dec 2019

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
2 citations
Jump To
Cite 1 - (1992) 175 CLR 564
Cite 2 - (1992) 175 CLR 564
Associated Provincial Picture Houses Limited v Wednesbury Corporation (1948) 1 K.B., 223
2 citations
Jump To
Cite 1 - (1948) 1 K.B., 223
Cite 2 - (1948) 1 K.B., 223
Cachia v Grech [2009] NSW CA 232
2 citations
Jump To
Cite 1 - [2009] NSW CA 232
Cite 2 - [2009] NSW CA 232
Glenwood Properties Pty Ltd v Delmoss Pty Ltd[1986] 2 Qd R 388; [1986] QSC 221
2 citations
Jump To
Cite 1 - [1986] 2 Qd R 388
Cite 2 - [1986] 2 Qd R 388
Harrison and Anor v Meehan [2016] QCATA 197
2 citations
Jump To
Cite 1 - [2016] QCATA 197
Cite 2 - [2016] QCATA 197
House v R (1936) HCA 40
1 citation
Jump To
Cite 1 - (1936) HCA 40
House v The King (1936) 55 CLR 499
5 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Cite 3 - (1936) 55 CLR 499
Cite 4 - (1936) 55 CLR 499
Cite 5 - (1936) 55 CLR 499
Leghaei v Director-General of Security [2005] FCA 1576
2 citations
Jump To
Cite 1 - [2005] FCA 1576
Cite 2 - [2005] FCA 1576
Marine Hull Liability Insurance v Hurford (1985) 10 FCR 234
3 citations
Jump To
Cite 1 - (1985) 10 FCR 234
Cite 2 - (1985) 10 FCR 234
Cite 3 - (1985) 10 FCR 234
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd[1989] 2 Qd R 577; [1989] QSCFC 53
2 citations
Jump To
Cite 1 - [1989] 2 Qd R 577
Cite 2 - [1989] 2 Qd R 577
Minister for Immigration and Citizenship v Li [2013] HCA 18
5 citations
Jump To
Cite 1 - [2013] HCA 18
Cite 2 - [2013] HCA 18
Cite 3 - [2013] HCA 18
Cite 4 - [2013] HCA 18
Cite 5 - [2013] HCA 18
Minister for Immigration and Citizenship v Li (2013) 87 ALJR 618
2 citations
Jump To
Cite 1 - (2013) 87 ALJR 618
Cite 2 - (2013) 87 ALJR 618
Mobil Oil Australia Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475
2 citations
Jump To
Cite 1 - (1963) 113 CLR 475
Cite 2 - (1963) 113 CLR 475
QUYD Pty Ltd v Marvass Pty Ltd[2009] 1 Qd R 41; [2008] QCA 257
2 citations
Jump To
Cite 1 - [2009] 1 Qd R 41
Cite 2 - [2009] 1 Qd R 41

Cases Citing

Case NameFull CitationFrequency
Oldmeadow v Trevorrow [2023] QSC 381 citation
TJR v The Public Trustee of Queensland and Anor [2022] QCATA 1767 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.