SW v BAR[2020] QCATA 162

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Background

1. [1]
   On 1 August 2018 the Tribunal delivered a decision with respect to four applications brought by DY, the daughter-in-law of the adult BAR. Reasons for the decision were delivered on 14 August 2018.
2. [2]
   The decision:

   1. (a)
      Dismissed an application for the appointment of a guardian for BAR;
   2. (b)
      Appointed Australian Unity Trustee Limited as administrator for BAR for all financial matters for a period of five years;
   3. (c)
      Revoked an Enduring Power of Attorney for BAR which was dated 25 October 2015 and appointed the adult’s friend SW as attorney for financial, personal and health matters; and
   4. (d)
      Required the administrators Australian Unity Trustees Limited (‘AUT’) to do all things necessary to ensure that the proceeds of the sale of SW’s property (purchased with funds given to her by BAR) and held by Gall, Stanfield and Smith, Solicitors for SW, are returned to BAR.

Factual background

3. [3]
   The decision set out factual background to the matter, including:

   1. (a)
      BAR was at the time of the decision an 81 year old widower;
   2. (b)
      DY is BAR’s daughter-in-law. SY and HL are BAR’s step-children. SW is BAR’s friend;
   3. (c)
      BAR met SW in June 2015;
   4. (d)
      On 26 October 2015 BAR appointed SW as his attorney for personal and financial matters, thereby revoking an earlier Enduring Power of Attorney appointing his children and his daughter-in-law as his attorneys for personal and financial matters;
   5. (e)
      BAR’s children report a negative change in their relationship with their father following his meeting SW;
   6. (f)
      On 6 October 2015 BAR attended Centrelink financial information services to discuss sale of his land and its impact on his pension. He was advised that he would exceed the limit for a pension under the assets test. The gifting rules were explained to him and he was advised not to dispose of assets in order to qualify for the pension, as it would make him worse off overall. BAR’s evidence is that he thought it was all right to make the gift which he did;
   7. (g)
      On 18 February 2016 BAR gave SW a gift of $420,000.00 which was used by SW to purchase a unit at Surfers Paradise. BAR had also purchased SW a Subaru and two BMWs. As each vehicle was sold, money was lost through depreciation;
   8. (h)
      BAR’s reason for the gift of money was because SW was his regular companion and had brought him out of a deep depression following the death of his wife. BAR thought that he and SW would continue to go on trips together and that SW would be his carer;
   9. (i)
      BAR sold his properties, ultimately buying and selling in Nerang and in Adelaide and then returning to the Gold Coast;
   10. (j)
       Money in the vicinity of $350,000.00 is unaccounted for. BAR was unable to explain the shortfall;
   11. (k)
       BAR’s current financial circumstances are such that his expenditure exceeds his income. Additionally he may have some legal issues with Centrelink as a result of receiving a pension after making the $420,000.00 gift to SW; and
   12. (l)
       DY filed an urgent application for the appointment of a guardian for BAR and the appointment of an administrator for all financial matters. These orders were sought in part because of the gift of $420,000.00 to SW which raised concerns that SW was financially taking advantage of BAR and that BAR’s health was at risk.
4. [4]
   During the hearing the Public Trustee provided the Tribunal with a file note, dated 15 November 2017, of a discussion held by an officer of the Official Solicitor’s office with a former solicitor of BAR’s, Mr William Campbell.
5. [5]
   The transcript records that the Member read part of the file note to the parties at the hearing, including: ‘…SW forcibly disagreed with BAR’s testamentary intentions and advised he needed to go back in the room and make out a new will.’^[1]
6. [6]
   Both BAR and SW denied that occurred.
7. [7]
   The Member said: ‘…if this is correct, this goes to your ability to make decisions freely and voluntarily, which means – and if – if you are overborne by SW, as Mr Campbell suggests, that – all of the evidence of the psychologists will count for little.’^[2]
8. [8]
   Mr Campbell was contacted by the Tribunal and gave telephone evidence. He confirmed that the Official Solicitor’s file note was substantially correct.
9. [9]
   Mr Campbell’s evidence was that he had a discussion with BAR on 20 October 2015 about BAR’s will. He received a report from a general practitioner saying BAR had no evidence of impairment. On 21 October 2015 BAR gave Mr Campbell instructions for his will including part of his estate going to each of his step-children and some to SW. After the consultation BAR returned to the waiting room. A loud discussion between BAR and SW was overheard, but not the detail of the conversation. BAR returned to Mr Campbell’s office and on Mr Campbell’s evidence said words to the effect that SW is not happy and that SW did not want BAR’s children included in the will. BAR advised that he wanted to leave everything to SW.
10. [10]
    Mr Campbell refused to prepare the will because he thought BAR was not acting freely and voluntarily in those subsequent instructions.
11. [11]
    Mr Campbell also confirmed that on a previous occasion he had been told by BAR that he considered himself to be weak but he thought it was worth doing what SW wanted him to do.
12. [12]
    Mr Campbell confirmed the content of the file note to the effect that he formed the view when he saw BAR in February 2016 that he had capacity, subject to the caveat that he thought BAR’s will was overborne by SW.
13. [13]
    The Member noted that both BAR and SW disagree with the evidence of Mr Campbell. BAR strongly disagrees that he is influenced by SW. His solicitor submitted that BAR can make decisions freely and voluntarily without influence from anyone.
14. [14]
    SW put to Mr Campbell in cross-examination that he had previously received an email from SY to the effect that he has a duty of care to BAR. Mr Campbell confirmed that email, confirmed that he was not threatened by it, and that he had spoken in a circumspect way to SY even though he did not have BAR’s instructions to do so. We draw from SW’s questioning that she was putting to Mr Campbell that he had been improperly influenced in his opinion about BAR by earlier contact with BAR’s step-son. Mr Campbell has not conceded that is the case.

Member’s reasoning

15. [15]
    The Member referred to the definition of capacity in Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (‘GAA’), that is:

    1. (a)
       Understanding the nature and effect of decisions about the matter; and
    2. (b)
       Freely and voluntarily making decisions about the matter; and
    3. (c)
       Communicating the decisions in some way.
16. [16]
    It is uncontentious that an adult needs to have all three skills outlined in the definition to have capacity for decision-making. Capacity is decision specific. The Member was required to determine whether BAR has capacity to make decisions about his personal matters and his financial matters.  All adults in Queensland are presumed to have capacity.^[3] That presumption can be rebutted with relevant evidence.
17. [17]
    The Member has recorded the nub of the submissions made by all those present at the hearing with particular reference to the submissions made by BAR’s legal representative.
18. [18]
    The Member has analysed the evidence and concluded that BAR understands the nature of the decisions he has to make and he can communicate these decisions. However, he formed the view that on the occasion of his attendance on Mr Campbell to give instructions for his will, on 21 October 2015, BAR was not capable of making decisions freely and voluntarily. The Member expressed himself as ‘quite disturbed’ about the evidence given by Mr Campbell that BAR was clearly unduly influenced by SW when he returned to his waiting room to change his instructions.
19. [19]
    The Member accepted the psychologists’ evidence that BAR is not cognitively impaired to the extent that he understands the nature of the decisions before him; however, he noted that there is speculation as to whether BAR understands the consequences of his decisions or if he is simply a bad decision-maker who does not care about the consequences of the decisions he makes.
20. [20]
    In the end, the Member found that BAR made decisions he would not otherwise have made if SW had not been influencing him. The evidence the Member relied on for this finding was the fact that just under one third of BAR’s estate had been given away to SW for providing friendship, over a short period at a time when he was depressed and vulnerable.
21. [21]
    The Member drew support from the observation of Dr Baker that there was evidence of vulnerability from undue influence from others, namely SW.
22. [22]
    The Member also relied upon a supplementary report of Kaylene Alderton, Clinical Neuropsychologist, dated 12 March 2018. Ms Alderton recommended in that report that the Public Trustee be appointed by Enduring Power of Attorney in partnership with two nominated friends. Ms Alderton found that BAR understands the nature of, but not the effect of actions on his future finances. The Member expressly refused to accept Ms Alderton’s evidence that her supplementary report is consistent with her original findings of capacity or that she meant something different to what she had written. The Member reasoned that the supplementary report was prepared with the benefit of the Public Trustee’s report as to BAR’s finances and after discussions with his children. He thought that on any reasonable reading quite different conclusions were reached from those in her first report. The Member concluded, as submitted by DY that the supplementary report was clear that BAR had partial capacity, but for complex matters needed assistance and advice. The Member specifically rejected the submissions made by BAR’s legal representative that the supplementary report was unreliable because of a lack of evidence or material to support her views. The Member thought that the supplementary report accorded with the evidence and his findings.
23. [23]
    As to Dr Baker’s evidence and report, the Member noted that neither psychologist had the opportunity to hear Mr Campbell’s evidence regarding undue influence.
24. [24]
    After acknowledging the starting position that BAR is presumed to have capacity, the Member then listed the matters which he considered weighed against BAR having capacity for financial matters, namely:

    1. (a)
       The event in Mr Campbell’s office was a clear example of BAR being overborne and not being able to make a decision freely and voluntarily;
    2. (b)
       BAR’s inability to explain where $350,000.00 of his funds have gone, an incorrect understanding of what he was told by Centrelink in relation to gifts of money and a lack of consideration of the consequences of property purchases and sales;
    3. (c)
       BAR saying that he would do all this again, including giving $420,000.00 to SW. The Member said that on one level this could be regarded as foolish; on another level it could be considered an inability to learn from one’s mistakes or appreciate the consequences of his decision;
    4. (d)
       Ms Alderton has said that BAR understands the nature but not the effect of actions on his future finances;
    5. (e)
       A statement in the report of Dr Simone Baker, Clinical Neuropsychologist, dated 15 June 2018 that BAR is vulnerable due to undue influence (accepting that for the most part, he has good cognition and at times has made impulsive and ill informed decisions);
    6. (f)
       The fact that BAR could not tell the Member the fees of his alternative administrator, Australian Unity Trustees, nor the Public Trustee’s fees;
    7. (g)
       That the gifting behaviour of BAR is out of the ordinary (taking into account Allcard v Skinner (1887) 36 Ch D 145 at 183 regarding not setting aside gifts out of folly, imprudence or want of foresight) and noting that was not the only factor considered;
    8. (h)
       Evidence from the children that their relationship with BAR has suffered significantly since SW came onto the scene;
    9. (i)
       The history of multiple purchases of cars which were undertaken solely at SW’s request;
    10. (j)
        BAR does not weigh things up before making a decision; and
    11. (k)
        BAR was in a deep depression and vulnerable at the time SW came into his life. He was highly dependent on her for emotional and personal support.
25. [25]
    The Member said that these matters cannot simply be explained by impulsivity. He acknowledged BAR does not have a cognitive impairment, but found that that does not mean he can necessarily make decisions freely and voluntarily and on occasions does not consider the consequences of his decisions.  The Member concluded that BAR was so besotted with SW that he was willing to do whatever she wanted to please her.
26. [26]
    Finally, the Member addressed criteria for appointment of an administrator. He said that he could not be satisfied BAR will not do something involving or likely to involve unreasonable risk to his finances or property.^[4] The Member said that BAR’s assets need to be protected and action taken to recover former assets.

Applications for leave to appeal or appeal

27. [27]
    On 31 August 2018, SW filed an application for leave to appeal or appeal. That matter is APL 232 -18.
28. [28]
    By order of the Appeal Tribunal made 16 May 2018 an extension of time was granted to BAR to file his application for leave to appeal or appeal until 11 October 2018, when it was in fact filed. That matter is APL 271-18.
29. [29]
    Both BAR and SW are eligible persons to appeal against a Tribunal decision.^[5]

Interlocutory Orders

30. [30]
    The Appeal Tribunal has ordered that APL271-18 and APL232-18 be heard together but remain as separate proceedings.
31. [31]
    Leave was granted to all parties to be legally represented in the proceedings.
32. [32]
    An application for a stay of the decision dated 1 August 2018 filed by SW was dismissed on 9 August 2019. At the hearing on 9 August 2019 the parties came to an agreement as to how to deal with funds from the sale of SW’s property which had been purchased with BAR’s funds. Those funds were held in the trust account of SW’s solicitors at that time.
33. [33]
    Upon:

    1. (a)
       an undertaking from the solicitor for BAR to hold the funds in a controlled money account especially established for BAR, not to be released without an order or direction by a Queensland Court or Tribunal, pending the outcome of the appeal hearing in these matters;
    2. (b)
       receipt of a copy of an Authority and Direction from AUT to BAR’s solicitor with an authorisation to release the funds less $6,000.00 for costs; and
    3. (c)
       instructions from SW to release the balance of funds held in their trust account,

the solicitors for SW paid the sum of $360,608.35 from its trust account to the solicitor for BAR on 21 August 2019.

The Hearing on 30 August 2019

34. [34]
    At the hearing on 30 August 2019 BAR and AUT were legally represented. SW represented herself as she has done throughout the matter. DY was self-represented.
35. [35]
    The Public Trustee advised the Tribunal that it did not intend to appear and had no material to present in the proceedings.
36. [36]
    SW relied on the matters set out in her appeal book filed in the proceedings. The other parties relied on written submissions. BAR also handed up a written outline of argument.

SW’s Appeal – APL232-18

37. [37]
    SW’s application for leave to appeal or appeal attempts to address both her interests as an appellant and the interests of BAR in his appeal against the decision. At the hearing SW said that her submissions were relevant to both her appeal and the appeal by BAR.

SW’s grounds of appeal and submissions

38. [38]
    SW’s application for leave to appeal or appeal states that it raises questions of fact and law. The grounds of appeal set out in the application are:

    1. (a)
       The Member made a finding of fact where there was no evidence to support that fact;
    2. (b)
       The Member drew inferences of fact from evidence that was not consistent with findings of fact;
    3. (c)
       Important facts were not taken into account; and
    4. (d)
       There was a lack of impartiality. The decision was unfair on the basis of bias.
39. [39]
    We have proceeded on the basis that the finding of fact referred to is the finding that BAR lacks financial capacity.
40. [40]
    At the hearing SW described her grounds of appeal as a failure on the part of the Member to accord her natural justice as a result of:

    1. (a)
       Not being given material including Mr Campbell’s file note prior to the hearing; and
    2. (b)
       Not being given an opportunity to be heard at the hearing in order to rebut allegations that she had unduly influenced BAR.
41. [41]
    At the hearing SW adopted the submission of BAR’s counsel that the decision in relation to capacity was not reasonably open on the facts.
42. [42]
    SW submitted that the Member ignored her submissions and merely repeated DY’s submissions.
43. [43]
    SW also submitted that the Member was misled particularly in relation to Mr Campbell’s evidence.

Orders sought

44. [44]
    SW’s application for leave to appeal or appeal is somewhat confused in relation to the orders sought. The orders sought are to have a ‘Ruling consistent with the fact’ and to ‘Repair the procedural error re not producing the “File Note” prior to the hearing’. Otherwise, further grounds of appeal are set out in the Orders Sought part of the application to the effect that: the law was not applied to the facts in relation to the Enduring Power of Attorney; the law was not applied to capacity; the Court did not consider all that it was required to consider to conclude with a decision ‘beyond reasonable doubt’; and in relation to monetary discrepancies the Public Trustee did not calculate three years of files in relation to allegedly missing money. The missing sum of $350,000 is said to be miscalculated.
45. [45]
    SW informed the Appeal Tribunal that she is seeking an order that the administrator be removed. SW also desired that the appeal have the effect of clearing her name in relation to assertions that she has unduly influenced BAR for personal financial gain.
46. [46]
    SW’s appeal book records other desired outcomes:

    1. (a)
       SW maintains that BAR had capacity at all relevant times; accordingly, she maintains that her resignation as his attorney was valid.^[6] The Enduring Power of Attorney appointing SW as BAR’s attorney was made on 26 October 2015. SW purported to resign as attorney by written notation on the Enduring Power of Attorney document made on 25 January 2016. She seeks as an outcome of the appeal that her resignation be ‘rectified on the record’; and
    2. (b)
       A written apology from BAR’s stepchildren to BAR and herself.
47. [47]
    In her submissions made on 12 July 2018, SW sought orders that:

    1. (a)
       A gift of $420,000.00 made to her on 18 February 2018 by BAR, was made freely and voluntarily and absent of any request or influence by SW. Accordingly, s 87 of the Powers of Attorney Act 1998 (Qld)^[7] does not apply to that transaction; and 
    2. (b)
       For the same reasons, s 88 of the Powers of Attorney Act 1988 (Qld)^[8] does not apply to that transaction.

Leave to appeal

48. [48]
    SW requires leave to appeal pursuant to s 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) because she is asserting mixed questions of fact and law in the various grounds of appeal set out above. SW may be granted leave if there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to her caused by that error.^[9]
49. [49]
    By s 163(3)(a)(iv) of the GAA, SW is an eligible person, able to seek leave to appeal or appeal because she was removed as BAR’s attorney by the decision of 1 August 2018. That is the aspect of the decision which affects her personally.
50. [50]
    The Member’s relevant findings at the noted paragraphs are that:

[56] on the occasion in November 2015 when Mr Campbell refused to take BAR’s instructions on the basis that they were not being given freely and voluntarily, BAR was not capable of making decisions freely and voluntarily.

[58] BAR has made decisions he would not otherwise have made if SW had not been influencing him. In circumstances where he was in a depressed state and vulnerable he has given away $420,000.00 and in addition to this he has provided a number of cars to SW.

[64](a) the event in Mr Campbell’s office was a clear example of BAR being overborne and not being able to make a decision freely and voluntarily.

…

[64](k) …the history of multiple purchases of cars which were undertaken solely at SW’s request.

[66] …he was so besotted with SW that he was willing to do whatever she wanted to please her.

[67] …I have formed the view that BAR does not have capacity for any significant financial matters… I consider that this has been the case since December 2015 as evidence [sic] by the incident in Mr Campbell’s office.

[68] Because I have come to this view, that BAR does not have capacity for financial matters, it is not possible for SW to resign to him as attorney (sections 72 and 82 of the Powers of Attorney Act 1988). SW must seek leave of the Tribunal to resign.  At the last hearing I invited her to do so in the event that I made this finding.  She did not do so.

[75] At the end of the hearing on 2 July 2018, I reserved my decision and sought submissions…regarding any particular orders I should make about the gift, Section 87 of the Powers of Attorney Act 1988 (presumption of undue influence) and the Enduring Power of Attorney of 26/10/15, if I found BAR lacked capacity for financial matters.

[76] I have already addressed the issue of the Enduring Power of Attorney of 26/10/15. An attorney cannot resign to an adult with impaired capacity.

[77] As I have made a finding about from when BAR had impaired capacity I reject any submissions regarding his having capacity at the time of the gift.

[79] The circumstances of the purported resignation of SW as attorney are irrelevant to my consideration.  I accept that SW did not make the gift pursuant to s 88 of the Powers of Attorney Act 1998 but am unable to conclude she breached that section by accepting the gift as the Public Trustee submitted.

[80] In relation to s 87 of the Powers of Attorney Act 1998 (Qld) SW denies she used undue influence in relation to the gift or anything else.  She denies using the EPA at all. She thought reasonably she had resigned as attorney.  I am disinclined to use that section against her, despite the Public Trustee’s submissions on that point.

51. [51]
    Given:

    1. (a)
       the findings relieving SW of liability for breaches of sections 87 and 88 of the Powers of Attorney Act 1998 (Qld);
    2. (b)
       the finding that SW thought, reasonably, that she had resigned as attorney; and
    3. (c)
       that SW does not seek to resume the role of attorney for BAR,

there is little utility in an appeal by SW against the decision to revoke the power of attorney in order to achieve ‘rectification of the record’ in relation to her resignation as attorney.

52. [52]
    With respect to the other orders sought by SW, they either relate to BAR’s capacity; her desire to clear her name from assertions that she has unduly influenced BAR for personal financial gain or to seek apologies from BAR’s family.
53. [53]
    All these matters are outside the scope of orders which could be made in relation to an appeal with respect to the matter on which SW is eligible to appeal, that is, her removal as attorney.
54. [54]
    For these reasons leave to appeal is refused. There is no reasonable argument available to SW that she has suffered a significant injustice through the decision of the Tribunal to remove her as attorney, which would justify the grant of leave to appeal.
55. [55]
    That does not mean however that the submissions made by SW are irrelevant. SW is a proper respondent to BAR’s appeal. As an eligible person under s 163 of the GAA she is ‘taken to be a party to the proceeding’ under the QCAT Act and therefore to have the opportunity to make submissions.^[10]

SW’s submissions as an interested party

56. [56]
    SW supports BAR’s application and adopts the submissions of his legal representatives.
57. [57]
    BAR does not seek leave to appeal on a question of fact or mixed fact and law. SW’s submissions in relation to questions of fact, which could only be determined on a re-hearing cannot be dealt with as part of BAR’s appeal, as it is currently framed.
58. [58]
    However, to the extent that any question of law is raised by SW, which goes to the interests of BAR rather than SW personally, we will consider her submission. The relevant questions of law raised by her are:

    1. (a)
       As submitted on behalf of BAR, the decision in relation to capacity was not reasonably available on the facts;
    2. (b)
       The member was not impartial in that he allegedly ignored her submissions and repeated DY’s submissions; and
    3. (c)
       There was a breach of natural justice in terms of not being given material including the diary note of the Public Trustee’s conversation with Mr Campbell or an opportunity to be heard at the hearing in order to rebut allegations that she had unduly influenced BAR.
59. [59]
    We will not at this point deal with the issues canvassed by BAR’s counsel and adopted by SW that the decision in relation to capacity was not reasonably available on the facts.  That ground of appeal will be addressed later in this decision.
60. [60]
    As to a lack of impartiality on the part of the Member by allegedly ignoring SW’s submissions, we note that at the end of the hearing the Member sought submissions in relation to BAR’s costs application and in relation to any orders which should be made about the gift to SW, s 87 of the Powers of Attorney Act 1998 (Qld) and the Enduring Power of Attorney of 26 October 2015.
61. [61]
    SW filed submissions on 12 July 2018, pursuant to Directions to the parties by the Member. The submissions canvassed the matters requested but also addressed Mr Campbell’s evidence and the diary note of 15 November 2017 disclosed to SW at the hearing on 2 July 2018. As part of that submission SW addressed the issue of ‘undue influence’ by her over BAR.
62. [62]
    At paragraph [67] of the decision the Member says that he has considered all the evidence and the submissions and has formed the view that BAR does not have capacity for any significant financial matters. At paragraph [87] the Member again says that he has considered the other submissions of the family and the submissions of SW. These did not persuade him to make orders other than those he has made.
63. [63]
    The fact that SW disagrees with the Member’s decision, or that the Member preferred one party’s submissions over her own, does not mean that there was a lack of impartiality or bias. AUT make the point in its submissions that SW has not addressed the test for apprehended bias.^[11] We accept that submission. SW has not identified what it is said might lead the Member to determine the question of capacity of BAR other than on its legal and factual merits. For example, there has been no identification of any interest, conduct, association or extraneous information which might lead a fair minded person to reasonably apprehend that the Member might not bring an impartial mind to the matter.
64. [64]
    For these reasons we reject SW’s submissions that the Member has not acted impartially.
65. [65]
    The next submission is that SW has not been accorded natural justice, by not being given certain of the other parties’ material or the file note of the Official Solicitor’s conversation with Mr Campbell. Further, that she was not given an opportunity to be heard at the hearing in order to rebut allegations that she had unduly influenced BAR.
66. [66]
    SW was present at all hearings and the final hearing in the matter. She was at all times both an interested party and an active party as defined in the GAA.^[12] SW was entitled to access the Tribunal file to inspect documents, to access documents during a hearing and to make submissions about a document.^[13]
67. [67]
    There is no obligation on any party to directly provide a document to SW. She merely has access to documents under the Act.
68. [68]
    It is apparent from the transcript of proceedings that SW had a copy of all relevant documents at the hearing.
69. [69]
    The key document as it bears on the decision ultimately made, is the Official Solicitor’s file note of a conversation with BAR’s solicitor at the time, Mr Campbell.
70. [70]
    SW does not appear to have suffered any disadvantage through only receiving the file note at the hearing. SW made submissions in relation to the background to BAR’s meeting with Mr Campbell.^[14] Mr Campbell was called to give evidence. He was comprehensively cross-examined by BAR’s solicitor. SW cross-examined Mr Campbell.^[15] BAR put his version of events in relation to the meeting described in the file note. SW and BAR’s solicitor were informed by the Member that they would be given the opportunity to make submissions in relation to the evidence. SW made a short submission in relation to BAR’s capacity.^[16] BAR’s solicitor made comprehensive submissions.
71. [71]
    As previously noted, SW filed written submissions going beyond the matters intended to be the subject of those submissions, which put her position in relation to the allegation of undue influence by SW over BAR. There is no reason to think that these submissions were not read by the Member. He did not say that they were excluded from his consideration.
72. [72]
    It is relevant to observe that SW’s role in the proceedings, either as BAR’s attorney or as an interested person, was in support of BAR. The proceeding was not to advance or protect SW’s personal interests.
73. [73]
    Bearing that in mind, we find that SW has been accorded procedural fairness appropriate to a party present in the proceedings as an attorney or interested person, by the provision of relevant material in sufficient time for her to cross-examine Mr Campbell and to make submissions which she thought best advanced the interests of BAR.
74. [74]
    We are satisfied that SW’s submissions that BAR had financial capacity at the relevant time and that she had not overborne his will, were made and considered by the Member.

BAR’s Appeal – APL 271-18

Fresh evidence

75. [75]
    BAR seeks leave to file and rely on a report of Dr McLaren, Consultant Psychiatrist, dated 19 July 2019. BAR asks that the fresh evidence be considered at the same time as the substantive appeal. We note that an unsigned version of Dr McLaren’s report was mistakenly filed with the application. The final signed version was handed up at the hearing. That is the copy referred to by the Appeal Tribunal.
76. [76]
    Dr McLaren assessed BAR for the purpose of determining his capacity to manage his financial affairs on 18 July 2019. Dr McLaren concluded that the assessments made by Ms Alderton in her first report and made by Dr Barker were correct. He did not think there was any medical or other rational reason to support the change of opinion in Ms Alderton’s supplementary report.
77. [77]
    Dr McLaren concluded that BAR has full capacity and competency to make his own decisions with respect to personal and financial affairs.
78. [78]
    BAR submits that the new report should be admitted as evidence in the appeal because the relevant criteria for admission into evidence are met, that is, inability to obtain the report earlier and the likelihood of a decisive effect on the outcome of the hearing.
79. [79]
    BAR asserts that given the time frame of the reports and the hearing dates of 25 January 2018, 22 February 2018, 29 March 2018 and 2 July 2018 he could not have obtained Dr McLaren’s report at that time. BAR submitted at the hearing that he could not have known what reliance would be placed on the supplementary Alderton report and therefore the need for a report to rebut it.
80. [80]
    He submits that the new evidence is credible and important. It would have affected the outcome of the application if available at the time.
81. [81]
    DY submits that the criteria for admission of fresh evidence in appellate matters is set out in Wollongong Corporation v Cowan:^[17]

…if the evidence had been available at the first trial and had been adduced, an opposite result would have been produced or, if it is not reasonably clear that it would have been produced, it must have been so highly likely as to make it unreasonable to suppose the contrary.

82. [82]
    DY submits that BAR was legally represented at relevant times and his lawyers diligently pursued medical reports as to capacity on his behalf.  It has not been demonstrated that the opposite result would have been achieved if Dr McLaren’s report had been available when the matter was heard in 2018. Further, BAR has not submitted what renders Dr McLaren’s report credible when he was briefed with minimal material, has not sought collateral information, has not particularised his testing, has not explained the results of tests and has disregarded the information given to Ms Alderton to prepare her supplementary report. He has not addressed Dr Baker’s concerns about BAR being vulnerable from undue influence by SW.
83. [83]
    AUT adopts DY’s submission and submits that the report from Dr McLaren should not be allowed into evidence on the hearing of the appeal.
84. [84]
    We refuse to allow admission of Dr McLaren’s report into evidence as part of the material under consideration in the appeal for the following reasons:

    1. (a)
       BAR has expressly submitted that he does not seek a re-hearing; and that this matter should proceed pursuant to s 146 of the QCAT Act as an appeal on a question of law only.
    2. (b)
       That being the case, there is no entitlement to hear fresh evidence under s 146 of the QCAT Act.
    3. (c)
       Even if we were to treat BAR’s application as an appeal on a mixed question of fact or law, so that the additional evidence could be heard as part of a rehearing under s 147 of the QCAT Act, there is a real question as to whether Dr McLaren’s report is relevant. This appeal is concerned with BAR’s capacity at the time of the decision on 1 August 2018. The question of capacity as at the date of Dr McLaren’s assessment on 18 June 2019 is irrelevant to that enquiry. If BAR contends that he currently has capacity, the appropriate course is to seek a review of appointment of the administrator. That application can be made at any time pursuant to s 29 of the GAA.
    4. (d)
       For the sake of completeness, we conclude that BAR addressed Ms Alderton’s supplementary report by obtaining Dr Baker’s report. That report was critical of the supplementary report and expressed a view in relation to capacity favourable to BAR. It is not the case that BAR was precluded from presenting relevant evidence. The real issue is that the Member preferred Ms Alderton’s evidence in the supplementary report to the other material before him and BAR is now seeking to overturn the Member’s findings. That is not facilitated by the usual rules in relation to the admission of fresh evidence. Finally, it is not clear that Dr McLaren’s report would have resulted in a different outcome. That is speculation. Dr McLaren deals with a different period of time. It is unknowable as to what he might have concluded prior to 1 August 2018.  Dr McLaren’s evidence would have been subject to cross-examination. It is not clear that his evidence would have been accepted after testing in a hearing.

Relevance of current capacity

85. [85]
    BAR contends that he currently has capacity as defined in the GAA and as a result the appointment of AUT should be terminated.  That is not a matter which this Appeal Tribunal can decide without a rehearing. Our role is to determine if there has been an error of law in the Member’s determination of the matter.
86. [86]
    To achieve a finding of current capacity, BAR can either bring an application for review pursuant to s 29 of the GAA or this Appeal Tribunal could, pursuant to s 146 of the QCAT Act set aside the 1 August 2019 decision and return the matter to the Tribunal for reconsideration with the additional evidence of Dr McLaren.
87. [87]
    At the hearing, counsel for BAR acknowledged the availability of a review.  However his instructions are that BAR does not want to leave the matter on the basis that he was subject to undue influence. BAR asserts undue influence is irrelevant in this jurisdiction. It is a matter which might be raised to challenge the validity of a will but not to challenge a gift in circumstances where he has capacity. BAR maintains that he has capacity, he is free to make a gift and it is irrelevant if the Tribunal thinks the gift was foolish.
88. [88]
    It was also submitted that without a finding the Member was in error in determining a lack of capacity, given BAR’s feelings for SW, the same issue of BAR’s feelings for SW and his resultant conduct will again arise in a review and may well again result in a finding of lack of capacity despite the medical evidence.
89. [89]
    In effect BAR requires this Appeal Tribunal to decide:

    1. (a)
       Whether the second limb of the definition of capacity – ‘freely and voluntarily making decisions about the matter’ – incorporates a concept of undue influence; and
    2. (b)
       Whether infatuation with the likelihood of one’s will being overborne is a relevant consideration for determining the second limb of the definition of capacity.
90. [90]
    These matters are addressed by us later in this decision.

Grounds of appeal

91. [91]
    The application for leave to appeal or appeal filed by BAR does not clearly set out his grounds of appeal. It contains a long statement touching on matters raised by the Member in the decision and putting a different version of events to that found by the Member. BAR deals with SW’s alleged influence over him, his discussion with Centrelink, his relationship with his children, the purchase of cars for SW, the sale of his property, the contents of the psychologists’ reports referred to by the Member and Mr Campbell’s evidence.
92. [92]
    At the hearing counsel submitted that no leave is required as BAR’s appeal is made pursuant to s 146 of the QCAT Act on a question of law only.
93. [93]
    AUT said that it did not quibble with the Member’s findings of fact and agreed that it was a question of law if the Member could not have reasonably reached his decision on the facts.
94. [94]
    DY agreed that s 146 of the QCAT Act was the relevant basis for the Appeal Tribunal to proceed with respect to BAR’s appeal.
95. [95]
    BAR says that the Member could not have reasonably come to his decision on the facts.
96. [96]
    BAR’s outline of argument sets out the following errors:

    1. (a)
       The Member relied on Ms Alderton’s supplementary report but ignored:

       1. Ms Alderton’s first and principal report;
       2. Ms Alderton’s evidence that she considered BAR had capacity;
       3. Evidence by Ms Alderton that she agreed with the evidence of Dr Baker; and
       4. The report and evidence of Dr Baker that BAR has capacity.
    2. (b)
       Only the factors weighing against the presumption of capacity were referred to at paragraph [64] of the decision. No reference was made to and no weight placed on the numerous factors supporting a finding of capacity.
    3. (c)
       The Member found that two elements of the definition of capacity in the GAA are satisfied, namely:

       1. understanding the nature and effect of decisions about the matter; and
       2. communicating the decisions in some way.

However, the Member concluded that on one occasion BAR was unduly influenced by SW to form the view that: ‘on that occasion BAR was not capable of making decisions freely and voluntarily’. ‘Undue influence’ is said not to be a doctrine or concept recognised in the GAA. It is recognised in contract law and succession law. In relation to wills, undue influence was said to require coercion. That is, a testator would say, ‘this is not my wish but I must do it’.^[18]

4. (d)
   It was apparent from the evidence that Mr Baker knew what he was doing when he gave instructions to Mr Campbell to change his will. He stated to Mr Campbell he ‘needed to keep SW happy’. Mr Campbell gave evidence that Mr Baker had previously said ‘he was weak and thought it was worth doing what SW wanted him to do.’
5. (e)
   The Member accepted that BAR is not cognitively impaired and understands decisions before him, but refers to Dr Baker’s comment that there was evidence of vulnerability from undue influence from others, namely SW.
6. (f)
   The Member has not had sufficient regard to s 5 of the GAA which provides that the GAA acknowledges that: ‘the right to make decisions includes the right to make decisions with which others may not agree’.
7. (g)
   The Member has adopted an overly paternalistic approach to his determination.^[19] For example he refers to BAR giving $420,000.00 to SW as ‘foolish’ or a ‘mistake’.  Similarly he considered the gifting behaviour of BAR to be out of the ordinary.
8. (h)
   The Member has failed to take into account that BAR is allowed to make decisions with which the Member may disagree, including making mistakes or being foolish. The Member’s opinion in this regard cannot and should not have formed a basis for a finding of incapacity.

97. [97]
    Counsel for BAR informed the Appeal Tribunal that he is not seeking a re-hearing. BAR seeks an order that AUT be removed as administrator and that the Appeal Tribunal find that BAR has capacity and substitute its decision for the decision of the Member.

BAR’s submissions

98. [98]
    BAR relies on submissions forming part of BAR’s appeal book filed 31 July 2019, prepared by an earlier legal representative and the outline of argument relied on at the hearing, prepared by his current representatives.
99. [99]
    In summary BAR complains that:

    1. (a)
       DY’s application was not accompanied by any medical evidence which might justify a finding of lack of capacity. Given the presumption of capacity provided for in s 7 and Schedule 1 of the GAA, the Member should have dismissed the application consistent with other decisions of the Tribunal.^[20]
    2. (b)
       In relation to the appointment of AUT in the place of the Public Trustee as administrator, there should have been no appointment of either the Public Trustee or AUT unless the Tribunal was satisfied BAR has impaired capacity. The appointment should be revoked on the basis that BAR has full capacity for all financial matters.  The Member should have been satisfied as to the matters in s 12 of the GAA, and pursuant to s 130 of the GAA had all relevant information and material before him.
    3. (c)
       The Member is required to consider the medical evidence and submissions from the parties to determine if the presumption of capacity has been rebutted for BAR.
    4. (d)
       The Member relied on the conclusions in Ms Alderton’s supplementary report, which had no proper medical basis and which Ms Alderton was not qualified to make.
    5. (e)
       The Member ignored Dr Baker’s conclusion about financial competency capacity.
    6. (f)
       The Member erred in finding that BAR was not capable of making decisions freely and voluntarily.
    7. (g)
       The presumption of capacity has not been rebutted.
    8. (h)
       Capacity is not determined by examining the content of decisions as to whether they are unwise.^[21]
    9. (i)
       The Member erred by preferring the self-serving evidence of the stepfamily.^[22]
100. [100]
     At the hearing, counsel for BAR emphasised that the Member did not explain why he ignored the medical evidence in two reports that BAR had capacity. He did not explain why he ignored the evidence of Ms Alderton at the hearing that she did not mean BAR had no capacity in her supplementary report.^[23]
101. [101]
     Counsel submitted that the Member’s observations as to BAR’s conduct with respect gifts to SW were a classic example of the Member disagreeing with BAR’s decisions and taking a paternalistic approach.
102. [102]
     Counsel submitted that the medical evidence was ignored. The Member should have said why he thought the neuropsychologists were wrong. Undue weight was given to other matters. The Member did not say what matters might be in favour of capacity. Finally it was submitted that it is not a relevant consideration for determining capacity to say BAR is infatuated and likely to be overborne.
103. [103]
     AUT submit that:

     1. (a)
        The question of whether the definition of capacity is met is not on the terms of the definition a medical assessment; it is a matter for the Tribunal to determine once it is apprised of all relevant information. Medical evidence is but an aspect.
     2. (b)
        As to undue influence and the submission that BAR could never now satisfy a Tribunal that he had capacity in 2018 is misconceived. The question is not one of infatuation. One can be infatuated and still freely able to make decisions.
     3. (c)
        It is not for the Appeal Tribunal to review the evidence afresh. If it is found that the decision was reached in error then the proceeding should be remitted to a different Member.
     4. (d)
        Paragraph [64] of the decision makes it clear what issues were taken into account by the Member. The issue of infatuation was not a stand-alone issue, it is linked to the evidence of the Public Trustee and Mr Campbell and the fact that a financial decision as to the beneficiaries under BAR’s will was not freely or voluntarily reached.
     5. (e)
        The most important limb of the definition of capacity in this case is the limb as to being capable of ‘freely and voluntarily making decisions about the matter’.
     6. (f)
        If a review application is now made, the neuropsychologists’ reports will be out of date. It is speculation as to what the current nature of BAR’s infatuation might be. It is the case that BAR’s interaction with the solicitor Mr Campbell might continue to be relevant.
     7. (g)
        It is not correct to say that the Member ignored Dr Baker’s report and Ms Alderton’s principle report. See paragraphs [23] to [36] of the decision. The Member refers to the reason for the request for a supplementary report and explains that the earlier reports only go to certain aspects of capacity.
     8. (h)
        The Member concludes that the presumption of capacity is rebutted because BAR could not always freely and voluntarily make a decision about financial matters.
     9. (i)
        It is entirely reasonable to find that BAR could not freely make a decision.
104. [104]
     At the hearing DY made the submission that the reference in the medical material to cognition did not equate to capacity.
105. [105]
     In reply it was submitted that the transcript reveals undue weight being placed on the supplementary report of Ms Alderton.^[24]  Ms Alderton’s evidence is to the effect that BAR is competent, but he has a personality trait that weighing things up is occasionally flawed.^[25] In cross-examination Ms Alderton said that her language in the supplementary report was confusing and that she totally agrees with Dr Baker.^[26]

Discussion

106. [106]
     As to BAR’s submission that no medical evidence was attached to the original application and that the presumption of capacity should have prevailed, we consider that the Tribunal was empowered to direct BAR to undergo a capacity assessment. The application was made on an urgent basis. The direction was part of an interim order not appealed. Further, by s 114(1)(a) of the GAA the Tribunal has the power to make such a Direction in the course of ensuring it has all relevant information and material to hear and decide a matter in a proceeding under s 130 of the GAA.
107. [107]
     We reject the submission put on behalf of BAR.
108. [108]
     There is no obligation in the GAA for an applicant to provide medical evidence as part of an application in relation to capacity. However the Tribunal must inform itself and may seek information from a person who has custody or control of information or material the Tribunal considers necessary to make an informed decision. In the cases relied upon by BAR the Tribunal either had relevant medical evidence as to capacity and no other evidence rebutted that information, or there was a failure on the part of the applicant to comply with Directions in relation to the provision of medical evidence. Those facts do not occur in this matter.
109. [109]
     The balance of BAR’s submissions cross over the matters set out in the outline of argument relied upon at the hearing.

The error of law

110. [110]
     The error of law identified by BAR is that the Member could not have reasonably come to his decision on the facts.
111. [111]
     The relevant principles associated with such a contention are drawn from a number of authorities.
112. [112]
     The considerations raised by the contention include:

     1. (a)
        Whether the finding as to financial capacity was reasonably open on the evidence or whether the finding so unreasonable that no reasonable person could have arrived at it;^[27]
     2. (b)
        The observations of the High Court in Minister for Immigration and Citizenship v Li^[28] (‘Li’s case’) that an unreasonable finding may have occurred where the decision-maker has not understood his or her statutory powers and obligations or has made errors going to jurisdiction such as misdirecting himself as to the operation of the statute, taking into account irrelevant considerations or failing to take into account relevant considerations;
     3. (c)
        The further observation from Li’s case that an administrative decision must be supported by evidence and reflect intelligible reasons (grounded in rationality and the ‘rules of reason’);^[29]
     4. (d)
        It may not be an error for the decision-maker to fail to discuss why contrary evidence was not accepted or to fail to discuss every conflict in the evidence in its reasons.^[30] It is sufficient if the decision-maker sets out its findings ‘…on those questions of fact which it considered to be material to the decision and to the reasons it had for reaching that decision.’^[31]
     5. (e)
        The explanation of the High Court in Craig v South Australia^[32] as to what is meant by “jurisdictional error” under the general law and the consequences that follow from a decision-maker making such an error. If an administrative tribunal:^[33]

…falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers.  Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.

6. (f)
   Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd^[34]discusses a number of decided cases which establish the following propositions in relation to a failure to take into account a relevant consideration in the making of an administrative decision and the related ground of taking into account irrelevant considerations. Paraphrasing from his Honour’s judgment:

   1. The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.
   2. What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive.  If the relevant factors are not expressly stated, they must be determined by implication from the subject matter, scope and purpose of the Act. In relation to the ground of taking into account irrelevant considerations, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject matter, scope and purpose of the statute some implied limitation on the factors to which the decision maker may legitimately have regard.
   3. By analogy where the review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.
   4. Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.  A factor might be so insignificant that the failure to take it into account could not have materially affected the decision.
   5. In the absence of any statutory indication of the weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power. However, a court may do so if the decision is manifestly unreasonable. That is the decision was so unreasonable that no reasonable person could have come to it.  Guidance is found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion. An appellate court may review a discretionary judgment that has failed to give proper weight to a particular matter, but it will be slow to do so because a mere preference for a different result will not suffice.  A court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits.

113. [113]
     We do not understand BAR to say that there was no evidence to support the finding in relation to financial capacity.
114. [114]
     As we understand it BAR contends that the Member could not reasonably have come to the decision on the facts because he:

     1. (a)
        Failed to take into account relevant considerations;
     2. (b)
        Took into account irrelevant considerations;
     3. (c)
        Did not make reference to and did not place any weight on the factors supporting a finding of capacity;
     4. (d)
        Misdirected himself as to the operation of section 5 of the GAA; and
     5. (e)
        Misdirected himself as to application of the test for capacity in the GAA.

Failure to take into account relevant considerations

115. [115]
     BAR’s complaint is that the Member failed to take into account relevant considerations, such as:

     1. (a)
        The medical evidence as to capacity found in Ms Alderton’s first report;
     2. (b)
        Ms Alderton’s evidence that she considered BAR had capacity;
     3. (c)
        Evidence by Ms Alderton that she agreed with the evidence of Dr Baker;
     4. (d)
        The report and evidence of Dr Baker that BAR has capacity;
     5. (e)
        The evidence of BAR that he knew what he was doing when he gave instructions to Mr Campbell to change his will; and
     6. (f)
        The principle in s 5 of the GAA as to the right to make decisions with which others may not agree.
116. [116]
     We accept that the matters identified by BAR are properly characterised as relevant considerations. We do not accept that the Member failed to take them into consideration.
117. [117]
     The decision records that the Member turned his mind to all of the identified considerations. We note the following references:

     1. (a)
        Ms Alderton’s first report – discussed at [23], [24] and [25]. Importantly the Member noted at [25] that Ms Alderton did not have access to a report on BAR’s finances and as a result a supplementary report was requested. Further Ms Alderton had the opportunity to speak to SY and HL before preparing the supplementary report.  At [26], [27], [28] and [29] the Member addressed the content of the supplementary report. At [48] – [49] the Member noted the submissions of BAR’s legal representative in relation to Ms Alderton’s report. At [60] – [63] the Member set out why he accepted Ms Alderton’s conclusions in the supplementary report and why he did not think those conclusions were consistent with her first report.
     2. (b)
        Ms Alderton’s evidence that she considered BAR had capacity – at [59] the Member noted Ms Alderton did not have the opportunity to hear Mr Campbell’s evidence regarding undue influence. At [60] – [63] the Member gave reasons why Ms Alderton’s evidence that BAR had capacity were rejected by him and why he relied on the supplementary report.
     3. (c)
        Evidence by Ms Alderton that she agreed with the evidence of Dr Baker – noted at [35]. The Member noted at [59] that Ms Alderton did not have the opportunity to hear Mr Campbell’s evidence regarding undue influence. At [60] – [63] the Member gave reasons why Ms Alderton’s evidence that BAR had capacity were rejected by him.
     4. (d)
        The report and evidence of Dr Baker that BAR has capacity – discussed at [30] and [36]. The Member noted at [59] that Dr Baker did not have the opportunity to hear Mr Campbell’s evidence regarding undue influence. The Member recorded the submissions by BAR’s legal representative as to Dr Baker’s conclusions at [50].
     5. (e)
        The evidence of BAR that he knew what he was doing when he gave instructions to Mr Campbell to change his will – noted at [41].
     6. (f)
        The principle in s 5 of the GAA – addressed at [64](i).
118. [118]
     We find that the Member has taken into account the identified relevant matters. They have been considered and addressed. The fact that BAR may prefer a different outcome to that which resulted from his consideration, does not mean that there has been an error of law on the part of the Member.

Taking into account irrelevant considerations

119. [119]
     BAR’s complaint is also that the Member took into account irrelevant considerations, such as:

     1. (a)
        The Member’s own view that BAR’s gift to SW of $420,000.00 was foolish or a mistake and that the gifting behaviour of BAR was out of the ordinary;
     2. (b)
        Conclusions in Ms Alderton’s supplementary report which had no proper medical basis and which Ms Alderton was not qualified to make;
     3. (c)
        The self-serving evidence of the step family; and
     4. (d)
        The Member’s view that BAR is infatuated and is likely to be overborne by SW.
120. [120]
     If a consideration is irrelevant it will fall outside the subject matter, scope and purpose of the GAA and will not bear on the issue to be determined, namely BAR’s capacity.
121. [121]
     We accept that the Member did take into account BAR’s gift of $420,000.00 and other gifts to SW, however we do not agree that the Member took those gifts into account solely on the basis that they were foolish decisions. If ‘foolishness’ was the Member’s basis for considering the gifts it may well be an irrelevant consideration. However, the Member considered the scale of the gifts over a short period of time in favour of SW, who he had only known for a short time, and which left him with inadequate resources for himself as a relevant consideration in determining if BAR’s will had been overborne by SW.
122. [122]
     The Member took into account the conclusions in Ms Alderton’s supplementary report; however, we do not agree that the conclusions were matters which were without medical basis or which Ms Alderton was not qualified to make. Ms Alderton addressed the matters she was required to address as a result of the Tribunal’s request for a supplementary report. We have previously set out the Member’s reasons for relying upon the supplementary report.
123. [123]
     The evidence of the stepfamily was properly taken into account given that they were interested parties in the matter. The evidence was not given undue weight. The pejorative criticism of that evidence as ‘self-serving’ does not assist the Appeal Tribunal.
124. [124]
     Finally, the Member did express the view that BAR is infatuated and that his will is likely to be overborne by SW. That is a matter which goes to the central issue before the Tribunal.
125. [125]
     Each of these considerations was taken into account in the context of an enquiry as to whether the second limb of the definition of capacity had been met. That is, whether BAR demonstrated he could freely and voluntarily make decisions about a matter.
126. [126]
     The gifts were considered by the Member to be so out of the ordinary as to be evidence of a will overborne, rather than evidence of an impulsive personality. Ms Alderton’s supplementary report found a lack of capacity in relation to financial matters such that the Public Trustee should be requested to be a safeguard and a sounding board. The stepfamily’s evidence went to their changed relationship with BAR after SW entered his life, together with alarm that he had given away so much money and could not account for hundreds of thousands of dollars, so that he was left with insufficient funds to live on. The matter of BAR’s infatuation was relevant to his vulnerability to undue influence.
127. [127]
     We do not agree that these are irrelevant considerations. There has been no error of law on the part of the Member by taking these considerations into account.

Did not make reference to and did not place any weight on the factors supporting a finding of capacity

128. [128]
     The Member’s reasoning demonstrates that he started with the position that BAR has capacity. At paragraph [64] of the decision the Member addressed all the factors which weigh against capacity for financial matters. The Member sought to rebut the presumption. We consider that was the appropriate means of proceeding.
129. [129]
     To the extent that BAR submits that the factors supporting a finding of capacity are those matters identified as relevant considerations discussed earlier, it is apparent from our analysis that those factors were referred to and addressed. We also consider that consistent with the observations in Peko-Wallsend, it is a matter for the Member to determine appropriate weight. We do not consider his decision to be manifestly unreasonable because of a failure to give weight to the matters identified by BAR, given the findings the Member made in relation to each of those matters.

Misdirected himself as to the operation of s 5 of the GAA

130. [130]
     The Member was cognisant of s 5 of the GAA, noting an injunction against setting aside gifts made out of folly, imprudence or want of foresight.^[35] The Member notes that the gifts made by BAR were exceptional, and expressly states that was not the only factor he considered. We consider the Member has made clear that he has not made his decision in relation to BAR’s capacity because he thinks that BAR made foolish gifts. He makes it clear that he made the decision because the gifts together with other facts demonstrate a lack of a free will.
131. [131]
     Section 5 of the GAA is an acknowledgment which underpins the presumption of capacity. The many factors addressed by the Member at paragraph [64] of the decision go to rebut that presumption. It is not a misdirection as to the operation of s 5 of the GAA if the Member finds that a decision is one piece of evidence, amongst others, of a lack of capacity rather than merely a decision with which others may not agree.

Misdirected himself as to application of the test for capacity

132. [132]
     There are three elements to be examined. First, BAR’s criticism that the Member adopted a paternalistic approach to BAR and found that he lacked capacity because he had made foolish decisions. BAR submits that capacity is not determined by examining the content of decisions as to whether they are unwise. As set out earlier, we do not consider that the Member found a lack of capacity because he considered decisions to be foolish.  He found that BAR’s decisions, particularly in relation to gifts to SW were so extraordinary in the circumstances that they were evidence of a lack of capacity by his will being overborne.
133. [133]
     The second matter relates to the assertion that the concept of ‘freely and voluntarily’ found in the second limb of the definition of capacity in the GAA, does not incorporate a concept of undue influence.
134. [134]
     The Member refers to ‘undue influence’ at [18] where he notes the view of the children that SW was ‘influencing their father unduly’ through gifts and property transactions. He notes at [31] that Dr Baker considered ‘there was evidence of vulnerability from undue influence from others, namely SW.’ At [54] the Member says that Mr Campbell’s evidence was that ‘BAR was clearly unduly influenced by SW’ and that as a result Mr Campbell refused to take BAR’s subsequent instructions ‘on the basis that they were not being given freely and voluntarily, and that in his opinion BAR had been overborne by SW.’ At [56] the Member concluded that on the occasion referred to by Mr Campbell, BAR was not capable of making decisions freely and voluntarily.
135. [135]
     The critical conclusion reached by the Member is at [58]: ‘It is clear to me that BAR has made decisions that he would not otherwise have made if SW had not been influencing him.’
136. [136]
     The concept of undue influence as used by the Member is not a concept peculiar to succession law as submitted by BAR. It is used in the sense described by Campbell J in Tonkiss v Graham^[36] who undertook an exhaustive examination of the phrase “freely and voluntarily” as it appears in many different contexts. His Honour said:

…the notion of acting “freely and voluntarily” is one which has a relationship implicit in it.  One acts “freely and voluntarily” when one acts free from circumstances constraining one’s actions.  The sort of circumstances which the cases I have quoted recognise as being ones which can, sometimes, result in action not being free and voluntary included duress, intimidation, persistent importunity, sustained or undue insistence or pressure, harassment, force, threats, fear, fraud, being induced by a threat or promise or some offered advantage, undue influence, and being deprived of relevant information or advice.

137. [137]
     His Honour made the point that the legal context will affect the significance of the constraining factors and how they might be weighted. His Honour concluded by reference to Brennan J’s observation in Cleland v The Queen^[37] that whether an action is in fact not free and voluntary depends on the interaction of the constraining circumstances with the particular actor.
138. [138]
     Undue influence by which a person’s will is overborne is a relevant way of testing if a person’s decisions are free and voluntary. It is a concept inherent in the phrase by which meaning is achieved.
139. [139]
     We do not consider the Member misdirected himself in applying the definition of capacity to the facts as found through a discussion of undue influence.
140. [140]
     In relation to the third question as to whether the Member misdirected himself in finding that infatuation results in a person not acting freely and voluntarily, we do not consider that is reasoning adopted by the Member.
141. [141]
     The Member says at [66]: ‘I am however inclined to the view that he was so besotted with SW that he was willing to do whatever she wanted to please her.’ The important words are ‘whatever she wanted’.  It is not the fact of infatuation which results in a person not acting freely and voluntarily. It is the vulnerability to having ones will overborne and it in fact being overborne. All of the matters set out at [64] are said by the Member to evidence that he cannot act freely and voluntarily. Those matters include instances of undue influence.
142. [142]
     We find that the Member has correctly applied the definition of capacity to the facts as found.
143. [143]
     The Member concluded that BAR did not have capacity for financial matters and that grounds existed for the appointment of a administrator because of a risk that BAR’s needs will not be adequately met or his interests adequately protected.
144. [144]
     We consider that conclusion to be within the spectrum of what is reasonable. The decision is supported by evidence and reflects intelligible reasons. On this basis, we do not consider there has been any error of law in reaching that conclusion.

Orders

145. [145]
     In relation to APL 232-18, we make the following order:

1. Leave to appeal is refused.

146. [146]
     In relation to APL 271-18, we make the following orders:

     1. The appeal is dismissed.

2. Seaside Legal, the solicitors for BAR release to Australian Unity Trustee Limited, as administrator, the funds held in its controlled money account in favour of BAR.