DAMA v Public Guardian[2020] QCATA 161

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   Interlocutory orders were made by a Member of the Tribunal in a guardianship proceeding requiring an attorney, DAMA, to produce specified documents pursuant to s 130 of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) and requiring that the attorney provide unredacted copies of some of those documents to another party to the proceeding, DEA. The attorney has filed an application for leave to appeal the Tribunal’s orders. Leave to appeal is required because the decision is not a final decision in the proceeding.^[1] The application for leave to appeal has not yet been determined.
2. [2]
   DAMA also applied for a stay of the operation of the orders that she seeks leave to challenge on appeal. The application for a stay order is before us for determination.
3. [3]
   For the reasons set out below, the stay application is allowed in part.

Background

4. [4]
   The guardianship proceeding has a complicated history, the details of which do not need to be fully recounted here.^[2] Suffice it to say that there were several enduring powers of attorney (EPAs) executed by the adult, DA, between 2016 and 2019. The earlier documents appointed DAMA and DEA jointly and severally as attorneys for all personal and financial matters. In February 2019, DA revoked the appointment of DEA as an attorney and appointed DAMA as sole attorney. From about 2018 onwards, the relationship between DAMA and DEA deteriorated and subsequently broke down as both lost trust in the other.
5. [5]
   The applications before the Tribunal in the guardianship proceeding include several applications for appointment of a guardian and administrator made by DAMA and DEA, and applications about the EPAs. The guardianship proceedings were part‑heard on various dates including 20 June 2019; 13-14 February 2020; and 25‑26 June 2020. Various miscellaneous applications have also been determined during that period. 
6. [6]
   On 20 June 2019, the Tribunal made orders inter alia for notices to produce to issue to relevant financial institutions. It appears from the file that the notices to produce did not issue. On 14 February 2020, orders were made vacating the orders of 20 June 2019 for the notices to issue. The orders which are the subject of this appeal were made in their place effectively requiring DAMA to produce the same documents, and also to give a copy of some of them to DEA.
7. [7]
   On 26 June 2020, the Tribunal made orders to the effect that any purported EPAs were overtaken to the extent of the orders made. DAMA was appointed as guardian for DA for one year for health care and the provision of services. In respect of financial matters, an interim order was made appointing the Public Trustee of Queensland for 3 months. Since then, a further similar interim order has been made. The proceeding (as far as it relates to the applications for the appointment of an administrator) is yet to be finally determined. If the appeal succeeds it appears that the evidence has closed with final submissions to be made before it is finally decided. If the appeal fails, it is anticipated that DAMA will be further cross-examined in respect of the documents once produced, before final submissions and a final decision are made.
8. [8]
   We note here that, between the making of the orders on 20 June 2019 and those of 14 February 2020, DAMA filed a considerable volume of documents, including some of those that are required to be produced by the orders dated 14 February 2020. 
9. [9]
   The relevant orders appealed dated 14 February 2020 are to the following effect:

4. Pursuant to section 130 of the Guardianship and Administration Act 2000 (Qld) [DAMA] will produce to the Tribunal an unredacted copy of all statements relating to the financial transactions relevant to the following accounts for the period of 19 April 2016 to 20 June 2019:

1. (a)
   The National Australia Bank Account, BSB [redacted], Account Number [redacted] held in the joint names of [DAMA] and [ALM];
2. (b)
   The National Australia Bank Platinum Visa Account, BSB [redacted], Account Number [redacted] held in the joint names of [DAMA] and [ALM];
3. (c)
   The Suncorp Bank Everyday Options Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];
4. (d)
   The Suncorp Bank Clear Options Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];
5. (e)
   The Citibank Platinum Visa Account, BSB [redacted], Account Number [redacted] held in the name of [DAMA];
6. (f)
   The Commonwealth Bank of Australia Passport Account, BSB [redacted], Account Number [redacted] held in the name of [DA];
7. (g)
   The Suncorp Bank Passport Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM];
8. (h)
   The Suncorp Bank Passport Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM]; and
9. (i)
   The Suncorp Bank Term Deposit Account, BSB [redacted], Account Number [redacted] held in the joint names of [DA] and [DM], by:

5:00pm on 1 May 2020.

5. Pursuant to section 130 of the Pursuant to section 62 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) [DAMA] will provide to [DEA] an unredacted copy of the bank statements produced to the Tribunal in accordance with to Orders 4(f), 4(g), 4(h) and 4(i), by:

5:00pm on 1 May 2020.

10. [10]
    The Tribunal also ordered that the bank statements produced pursuant to orders 4(a) to (e) are not to be disclosed, disseminated or released to DEA, his lawyers or any other person without leave of the Tribunal.^[3]
11. [11]
    There are no written reasons for the decision made on 14 February 2020 with respect to the orders the subject of the appeal proceeding. It appears that the Tribunal did not provide reasons for its decision and further that no party requested reasons for the decision.
12. [12]
    The grounds of appeal sought to be agitated by DAMA are as follows:

    1. (i)
       Orders 4 (a) to (d) are an invasion of DAMA’s privacy;
    2. (ii)
       Orders 4 (a) to (c) are in relation to accounts that DAMA holds jointly with her partner, ALM, a non-party to the proceeding and are an invasion of his privacy;
    3. (iii)
       There was no co-mingling of DA’s funds prior to December 2019;
    4. (iv)
       The accounting records for the relevant period have been produced in full for the identified period (over 800 pages);
    5. (v)
       The documents in orders 4 (f) to (i) were filed on 10 January 2020 (references to pages of an affidavit of DAMA provided).

The relevant principles for deciding the stay application

13. [13]
    Section 145(1) of the Queensland Civil and Administrative Tribunal Act 2009(Qld) (QCAT Act) provides that starting an appeal does not affect the operation of the decision being appealed against. Section 145(2) however provides that the Tribunal may make an order staying the operation of the decision being appealed against pending determination of the appeal.
14. [14]
    Section 58 provides for the making of interim orders, relevantly as follows:

58 Interim orders

1. (1)
   Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example-

1. (a)
    to protect a party’s position for the duration of the proceeding; or

…

15. [15]
    In Hessey-Tenny v Jones,^[4] Daubney J held that s 145 was premised on the notion that an appeal had been started and, accordingly, that the power under s 145(2) did not extend to a decision where leave to appeal was required and had not yet been obtained.^[5] However, His Honour held that in such a case, an order in the nature of a stay may be granted under s 58(1). This is because ‘proceeding’ in s 58(1) is defined broadly so as to include a proceeding relating to an application for leave to appeal to the appeal tribunal.
16. [16]
    In granting a stay where an application for leave to appeal is pending, the Supreme Court has held, relying on its inherent jurisdiction, that the circumstances must be exceptional before an order in the nature of a stay will be granted.^[6] Daubney J referred to those principles and applied them to the granting of a stay under s 58 in Hessey-Tenny:

Having regard to that expansive definition of the word “proceeding” it seems to me that in a case such as the present, which falls outside the ambit of s 145, s 58 is sufficient to confer appropriate jurisdiction on the Tribunal to entertain and, if appropriate, allow a stay of a primary order in circumstances where leave to appeal has not yet been granted. That being said, as was noted by McMurdo JA, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal.

For the reasons which follow, I do not consider that the applicants have demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay.

In considering therefore, whether to grant an interim order in the nature of a stay  under s 58 of the QCAT Act, we must be satisfied the circumstances are exceptional.

The parties’ submissions

17. [17]
    DAMA submits that there are exceptional circumstances because orders 4(a) and 4(b) require production of documents held jointly by her and ALM, in circumstances where  ALM was not given procedural fairness, is not a party, or even a witness, to the proceeding. Further, she argues that the appeal will be rendered nugatory by the production of the documents. She contends that the construction of s 130 is in issue. In particular, she raises whether s 130(3) of the GA Act is limited by s 130(2). Further, she contends that the power under s 130 is for the purpose of ensuring relevant information is before the Tribunal namely, relevant information that it does not have. Therefore, she says it is an error of law to require the production of documents containing information which is already before the Tribunal, as she contends is required by orders 4 (f) to (i).
18. [18]
    She further submits that she has a good arguable case because ‘relevant’ should be taken to mean directly relevant. She argues that the evidence is that she did not co‑mingle DA’s funds with her own; she has provided redacted statements showing the monies spent by her on behalf of DA; and it is unclear how the private expenditure of DAMA and ALM could be relevant. She says that the statements in orders 4(a) to (d) do not involve transactions relating to the adult and therefore cannot be relevant. Further, she submits ALM was not given procedural fairness. Accordingly, she says she has a good arguable case of error by the Tribunal. In any event, she says DEA has not identified any particular transaction of concern, and is ‘merely seeking to go on a “fishing expedition”.’
19. [19]
    She submits that she will be disadvantaged by the cost of complying with the order; and her privacy and ALM’s privacy will be infringed if the stay order is not granted. Further, she says that there has been an effective stay of the order by the actions of the Tribunal in conducting a further 2 days of hearing without reference to the documents, which should be formalised. Subject to  further disclosure in accordance with the subject orders, she contends that the evidence has been concluded and submissions need only be made in the substantive guardianship proceeding.
20. [20]
    We note that DAMA does not refer specifically to order 4(e) in either her grounds of appeal or her submissions in support of the stay application.
21. [21]
    DEA asserts that DAMA and ALM both attended the hearing and neither raised any concerns when Counsel for DAMA indicated the unredacted bank statements would be produced and the Tribunal effectively replicated, (except insofar as DAMA was now to produce the documents) the previous orders requiring production of the statements by the financial institutions (which earlier orders were not appealed).
22. [22]
    He acknowledges the filing of the redacted statements but submits that DAMA unilaterally determined what was to be redacted. He argues that DAMA used the accounts, including those joint with ALM, to undertake transactions for and on behalf of the adult and that therefore they are relevant. Further, DEA says he is entitled to cross-examine her on the intermingling of funds, noting that the Tribunal found there had been intermingling,^[7] and because DAMA seeks to be appointed as administrator.
23. [23]
    That said, DEA acknowledges that the later hearing on 25 and 26 June 2020 did not expressly address the transactions and that therefore in a practical sense the Tribunal had itself imposed an informal stay. In those circumstances, he submits that there is little utility in not granting the stay order pending the determination of the appeal proceeding.

Should a stay order be granted?

24. [24]
    Because leave to appeal is necessary, there must be exceptional circumstances before it would be appropriate to stay the Tribunal’s order.

Orders 4(a)-(e)

25. [25]
    For the reasons that follow, we are not satisfied that exceptional circumstances exist such as to warrant the making of an interim order in the nature of a stay in respect of orders 4(a) to (e).

26. [26]
    Order 4(e) is not the subject of a specific intended ground of appeal and there are no specific submissions made about it in support of the stay application. We have proceeded on the basis that the ground and submissions denying co-mingling of funds are intended to refer.
27. [27]
    DAMA’s submission that some of the accounts are joint (i.e. those referred to in orders 4(a) and (b)) does not constitute an exceptional circumstance. Each of the joint owners of the accounts are entitled to the statements, so she is able to provide them. Further, it is no excuse in these circumstances to say that the interests of ALM might be affected by her disclosure or that ALM has not been afforded procedural fairness. The Tribunal must observe the rules of natural justice in conducting a proceeding.^[8] To ascertain what this requires in a particular case, the starting point has been held to be the statute creating the power.^[9] The issue is whether ALM is a person directly affected by the disclosure decision such that it would be a denial of procedural fairness for him not to be heard on the issue.
28. [28]
    In our view, even if ALM was “affected by the decision” and objected to disclosure, the accounts would have been disclosable in any event. In our view, the purpose of s 130 of the GA Act and of the GA Act generally, with its focus on promoting and safeguarding the rights and interests of vulnerable adults, in this instance, would warrant disclosure of the joint accounts irrespective of any rights of privacy of either DAMA or ALM. This is reflected in s 130(6) which provides that s 130 overrides any restriction in an Act or at common law about disclosure or the confidentiality of information.
29. [29]
    DAMA asserts in submissions that the evidence was that there had been no ‘commingling’ of the funds and that the Tribunal had not made such a finding on 14 February 2020. However, the transcript for 14 February 2020, records that the learned Member in delivering brief reasons as to the course he  decided to adopt in the hearing refers to submissions in which DEA’s representative stated that DAMA had ‘conceded intermingling of financial transactions’.^[10] The Member went on to say that ‘it is unknown whether it is actually a minor issue or not. To what extent that occurred we won’t know until we see the bank statements.’^[11] It is sufficiently clear that the learned Member considered that the issue was relevant to his decision. This is confirmed subsequently, in the Tribunal’s written reasons for decision following a further two full days of hearing which contain that finding, as referred to in DEA’s submissions, that there had been intermingling of funds.^[12] It is sufficiently clear that this is an issue which the Tribunal had in mind in making the orders on 14 February 2020 and considered relevant to its final determination of the outstanding applications in the proceeding.
30. [30]
    In light of DAMA’s application to be appointed to the role of administrator, in considering her appropriateness for the role, her actions as an attorney in relation to DA’s finances are apposite. If she, as attorney, used the joint accounts to perform relevant transactions, which she does not dispute doing, the joint accounts would appear to be directly relevant.
31. [31]
    In relation to her privacy, DAMA had responsibilities as an attorney. By using the accounts to perform relevant transactions, she made them relevant. She asserts privacy as a ground for not providing them, but without asserting (and nor do we identify) any legal basis upon which privacy might make them privileged or immune from production, in circumstances where they are directly relevant to an issue in the proceeding. 
32. [32]
    Further, although she does not identify reliance upon the Human Rights Act 2019 (Qld) (‘the HR Act’), we observe that it provides the right not to have a person’s privacy unlawfully or arbitrarily interfered with.^[13] However, a human right may be subject to reasonable limits that are demonstrably justifiable.^[14] Without making a finding at this preliminary stage, it appears to us that in respect of the intermingling of funds with the adult’s funds, an argument that the requirement to produce personal statements (used to perform transactions for DA) is not reasonably justifiable in light of their relevance to DA’s financial matters, in circumstances where DAMA seeks to be appointed as administrator, would have limited merit. 
33. [33]
    Although not specifically directed by the Appeal Tribunal to reply to DEA’s submissions, we observe that DAMA has not sought to do so. Therefore, it appears she does not challenge DEA’s assertion that neither she nor her partner who were present raised privacy concerns during the hearing and her Counsel told the Tribunal the documents would be provided. Further, although ALM was not directly given the opportunity to make submissions, it is relevant that he was present at the hearing at relevant times and did not ask to be heard about the issue.
34. [34]
    In any event, in respect of the privacy issues raised in respect of order 4(a) to (d), s 103 of the GA Act is very specific in prescribing who has access to documents before the Tribunal that are considered ‘relevant’ or ‘credible, relevant and significant’ and when. When the documents are filed and before the start of a hearing, an active party must be given a reasonable opportunity to access documents that the Tribunal considers directly relevant to an issue in the proceeding. During and for a reasonable time after the hearing, each active party must be given a reasonable opportunity to access documents or other information the Tribunal considers are ‘credible, [directly] relevant and significant’. A person the Tribunal considers has a sufficient interest in the proceeding must also be given a reasonable opportunity, within a reasonable time after the hearing, to access a document before the Tribunal that the Tribunal considered ‘credible, [directly] relevant and significant’ to an issue in the proceeding.
35. [35]
    If there is nothing in the documents the subject of the orders that the Tribunal considers is ‘[directly] relevant to an issue in the proceeding’ or ‘credible, [directly] relevant and significant’, then other active parties, including DEA, will not be entitled to access them.^[15] As set out earlier, the Tribunal made a confidentiality order on 14 February 2020 that protects the confidentiality of the information in the statements (and thereby, DEA’s privacy and the privacy of ALM) unless leave of the Tribunal is given. It appears that the Tribunal was very much cognisant that the documents should not necessarily be disclosed to any party.^[16]
36. [36]
    Further, at the time of filing of the documents, it is open to DAMA, ALM or both of them, to apply for the making of a further limitation order; relevantly, a non‑publication and/or confidentiality order in relation to, respectively, the publication of information about a tribunal proceeding,^[17] or the withholding of documents or parts of documents to the extent necessary to avoid serious harm or injustice to a person.^[18]
37. [37]
    Accordingly, we do not accept that the appeal will be rendered nugatory if a stay order is not made. There is currently an order in place that addresses the issues raised in relation to orders 4(a) to (e) and other steps that may be taken by DAMA (and ALM) in accordance with the GA Act in relation to the confidential nature of some information which is not relevant to the proceeding and that may be contained in the documents.
38. [38]
    Accordingly, we do not identify exceptional circumstances exist such as would warrant the making of an interim order in the nature of stay in respect of orders 4(a) to (e).
39. [39]
    Furthermore, as this is an appeal from an interlocutory order involving matters of practice or procedure; and particularly as there is an element of discretion involved, the settled policy is to keep a ‘tight rein’ on attempts to appeal.^[19]

Orders 4 (f) to(i) and order 5

40. [40]
    However, in relation to orders 4(f) to (i) and order 5, there are exceptional circumstances; an arguable case of error exists and the balance of convenience favours granting an interim order in the nature of a stay.
41. [41]
    Orders 4 (f) to (i) were made pursuant to s 130 of the GA Act. Section 130 provides that to hear and decide a matter in a proceeding, the tribunal must ensure, as far as it considers practicable, that it has all the relevant information and material.^[20] The Tribunal’s role in guardianship proceedings is sometimes described as more inquisitorial than in most other jurisdictions. Section 130(3) provides that the Tribunal may order a person to give information and material to the Tribunal. Section 130(2) empowers the Tribunal to request information or material it considers necessary to make an informed decision about the matter. The construction question raised by DAMA will be decided on appeal if leave to appeal is granted. Suffice it to say here that it is, in our view, arguable that s 130 does not authorise the making of an order for the provision of information the Tribunal already has in the material before it.
42. [42]
    A perusal of the guardianship file reveals that most of the unredacted documents required to be produced under orders 4(f) to (i) have, in any event, already been filed by DAMA. In particular, the documents specified in the orders have been provided for the period 19 April 2016 to 30 April 2019. Only those for the period 1 May 2019 to 30 June 2019 have not yet been provided.
43. [43]
    The balance of convenience favours orders being made to stay the operation of orders 4(f) to (i) in so far as the period 19 April 2016 to 30 April 2019 is concerned, pending the determination of the appeal. We are satisfied that an interim order in the nature of a stay should be granted.
44. [44]
    Order 5 relates to the provision by DAMA to DEA of the documents to be produced in compliance with orders 4(f) to (i). Staying the operation of orders 4(f) to (i) to a large extent logically necessitates the staying of order 5 in the same respect.
45. [45]
    That said, in any event order 5 was made pursuant to s 62 of the QCAT Act. It requires DAMA to give copies of bank statements in the name of DA, and other statements in the joint names of DA and his wife (who passed away during the period of the statements ordered to be provided) referred to in orders 4 (f) to (i) to be given to DEA. On the face of the EPAs, DEA was an attorney for most of the relevant period. It therefore appears appropriate that he, being an attorney with all the responsibilities that entails; an applicant; and an active party in the proceedings, has access to copies of those statements. The adult’s finances are directly relevant in the proceeding. Indeed, DAMA does not seem to dispute that is the case. The argument on the stay application in relation to order 5 is that copies have been filed attached to her affidavit filed in the Tribunal and that she is disadvantaged because there is a cost in producing copies to DEA. 
46. [46]
    Section 62 of the QCAT Act provides for a general directions power, exercisable to do ‘whatever is necessary for the speedy and fair conduct of’ a proceeding. That said, in guardianship proceedings which relate to an adult, documents are not served on  other parties as they would be in inter party proceedings. As discussed earlier, parties are not entitled under s 103 to access to all documents as of right. Ordinarily, if documents are to be made available to a party, the party inspects the file. In an appropriate case, copies of some documents may be requested.
47. [47]
    It is not apparent why a direction was made for DAMA to provide copies of the documents referred to at orders 4(f) to (i), when they were, (and in respect of the documents yet to be filed for the period 1 May 2019 to 30 June 2019, can be) made available to DEA under s 103 in the usual manner.

Orders

48. [48]
    For the reasons explained, we make orders granting a stay of the operation of orders 4(f) to (i) in so far as the period of 19 April 2016 to 30 April 2019 and order 5 pending finalisation of the appeal proceeding.
49. [49]
    We refuse the stay application as it relates to orders 4(a) to (e).

Non-publication

50. [50]
    Under the GA Act, information published about a proceeding that may lead to the identification of an adult by the public or a section of the public is generally prohibited.^[21]
51. [51]
    This appeal proceeding has its origins in a guardianship proceeding. On the Tribunal’s own initiative, we are satisfied that it is necessary here, in the interests of justice, to make an order pursuant to s 66 of the QCAT Act, prohibiting the publication of information that may lead to the identification of an adult by the public or a section of the public, in order to protect the adult’s identity. As the parties have not had an opportunity to make submissions about a non-publication order, we make the order until further order in the appeal proceeding.
52. [52]
    Accordingly, these reasons for decision have been de-identified.