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KB v The Public Trustee of Queensland

[2020] QCATA 173

KB v The Public Trustee of Queensland[2020] QCATA 173

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KB v The Public Trustee of Queensland and Ors [2020] QCATA 173

PARTIES:

KB

(applicant/appellant)

v

The public trustee of queensland

public guardian

WK

The Adult

(respondent)

APPLICATION NO/S:

APL 242-20

ORIGINATING

APPLICATION NO/S:

G42197

MATTER TYPE:

Appeals

DELIVERED ON:

18 December 2020

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie and Member Fitzpatrick

ORDERS:

  1. The application for leave to amend the ground of appeal is granted.
  2. The time for filing the amended application for leave to appeal or appeal is extended to 26 November 2020.
  3. The application for leave to amend the application to stay the decision is granted.
  4. The application to stay the decision dated 27 July 2020 is refused.
  5. Unless otherwise ordered, the publication of information that may lead to the identification of the adult by the public or a section of the public is prohibited.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where stay of a decision sought pending leave to appeal – whether an interim order in the nature of a stay should be made – requirement for exceptional circumstances

Guardianship and Administration Act 2000 (Qld), s 114A

Powers of Attorney Act 1998 (Qld), s 115

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 61, s 64, s 66, s 142(3)(b)

Hessey-Tenney v Jones [2018] QCATA 131

House v The King [1936] 55 CLR 499

La Macchia v Department of Housing and Public Works [2015] QCATA 143

Pickering v McArthur [2005] QCA 294

Simonova v Department of Housing and Public Works [2018] QCA 60

REPRESENTATION:

 

Applicant:

Mr J Geldard of Geldard Sherrington Lawyers

Respondent:

Mr S McAuley of McAuley Hawach Lawyers

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

Background

  1. [1]
    It is common ground that the adult had impaired capacity for decision-making at the date of the hearing in the Tribunal below. WK is the adult’s wife. KB is the adult’s daughter. The decision the subject of the application for a stay and the application for leave to appeal or appeal was made on 27 July 2020. WK filed an application to be appointed as administrator for the adult. KB filed an application to be jointly appointed with WK as administrator and a further application for KB to be appointed as the adult’s guardian. At the hearing, KB told the Member that she was not in favour of a joint appointment as administrator and would prefer the Public Trustee be appointed.
  2. [2]
    The Member below ordered that WK be appointed as administrator for the adult for all financial matters, pursuant to the Guardianship and Administration Act 2000 (Qld) (GA Act). The appointment is to be reviewed in one year. Other ancillary orders were made with respect to WK’s obligations as administrator.
  3. [3]
    The Member noted the existence of an enduring power of attorney of the adult dated 12 September 2018, appointing WK and KB as attorneys for personal and health matters. Pursuant to s 115 of the Powers of Attorney Act 1998, the Tribunal declared that the powers given to the attorneys under the enduring power of attorney dated 12 September 2018 have begun.

Interlocutory applications for determination

  1. [4]
    The Appeal Tribunal will consider the applicant’s application for leave to amend the application for leave to appeal or appeal and the applicant’s application for a stay of the decision below, which is also subject to an application for leave to amend.
  2. [5]
    The following material has been filed in the proceedings before the Appeal Tribunal:
    1. (a)
      Application for leave to appeal or appeal filed 11 August 2020;
    2. (b)
      Application to stay a decision filed by KB on 11 August 2020;
    3. (c)
      Response to the stay application by WK filed 18 September 2020;
    4. (d)
      Submissions of KB filed 2 October 2020 with respect to the stay application;
    5. (e)
      Application for leave to file and serve an amended application for leave to appeal or appeal and application to stay a decision filed 3 November 2020;
    6. (f)
      Submissions filed by KB addressing grounds of appeal dated 23 November 2020 (in response to Directions made 9 November 2020 to file written submissions in support of an amended application to stay a decision);
    7. (g)
      Amended application to stay a decision filed 23 November 2020;
    8. (h)
      Amended application for leave to appeal or appeal filed 26 November 2020;
    9. (i)
      Response of WK filed 7 December 2020.

Application for leave to amend the application for leave to appeal or appeal

  1. [6]
    By s 64 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Tribunal may make an order requiring that a relevant document be amended.
  2. [7]
    KB sought leave to file and serve an amended application for leave to appeal or appeal on 3 November 2020. The applicant was not required to file submissions in support of the application.  In accordance with the Appeal Tribunal’s directions, the amended application was filed on 26 November 2020.
  3. [8]
    The grounds of appeal have been significantly amended as have the orders sought from the appeal Tribunal. KB now seeks that she be appointed jointly with WK as joint administrator for the adult for all financial matters together with ancillary orders including in relation to provision of accounts.
  4. [9]
    The amended grounds of appeal are that:
    1. (a)
      The Member failed to consider and have proper regard to the wishes of and best interests of the adult by appointing WK as sole administrator in circumstances where:
      1. the adult had appointed KB as his sole executor and trustee of his Will and
      2. the adult had appointed KB and WK as joint attorneys for personal and health matters.
    2. (b)
      By reference to matters set out in submissions dated 23 November 2020, the Member failed to properly consider and have regard to the suitability of WK to act as sole administrator in circumstances where:
      1. WK had only relatively recently formed a relationship with the adult;
      2. There was evidence before the Tribunal which raised concerns regarding the suitability of WK to act as sole administrator
      3. There was evidence of substantial assets so that appointment of joint administrators was appropriate;
    3. (c)
      KB has a continuous and loving relationship with her father and is her father’s attorney for personal and health matters.
  5. [10]
    By response filed 7 December 2020, WK responds to the amended application for leave to appeal or appeal and also makes submissions in relation to the amended application for a stay.
  6. [11]
    WK does not expressly oppose the application to amend the application for leave to appeal or appeal. However, WK resists the orders sought in the appeal and counters the grounds of appeal.
  7. [12]
    WK does not raise any issue that the new grounds of appeal have been made outside the time limit for bringing the application for leave to appeal or appeal.
  8. [13]
    On the basis that the application for leave to amend is not opposed and there would not appear to be any prejudice to WK in extending time to allow new grounds of appeal, the Appeal Tribunal grants leave for the amendments and extends the time to enable that amendment.[1] The Appeal Tribunal directs that the appeal proceed by reference to the application for leave to appeal or appeal filed 26 November 2020 and the response filed 7 December 2020.

Application for leave to amend the stay application and Application to stay the decision

  1. [14]
    As previously noted, the Appeal Tribunal has power under s 64 of the QCAT Act to require an amendment to a document.
  2. [15]
    By application filed 3 November 2020, KB seeks leave to file and serve an amended application to stay the decision.  Submissions in support of that application are said to be found in the submissions dated 23 November 2020, which also address the new grounds of appeal. The submissions do not go to the issue of why leave should be granted, but rather set out the grounds of appeal and a further submission that given the grounds of appeal, a stay of the decision is appropriate. 
  3. [16]
    WK does not expressly oppose the application for leave to amend the application to stay the decision. WK opposes the application for a stay.
  4. [17]
    Given there is no opposition to the amendment, the Appeal Tribunal grants the application for leave to amend the application to stay the decision and will proceed to determine the application to stay the decision on the basis of the application filed 23 November 2020. The first application filed 11 August 2020 and supporting submissions filed 2 October 2020 will not be referred to.

Application to stay the decision

  1. [18]
    An amended application to stay a decision was filed on 23 November 2020. The supporting submissions dated 23 November 2020 set out at paragraph 7 a submission that given the quantum of the adult’s liquid assets, the matters raised in the appeal regarding the suitability of WK to act as sole administrator, the wishes of the adult in his Will and the appointment made in 2018, it is appropriate to grant a stay of the decision.
  2. [19]
    WK’s response to the application to stay the decision relies on:
    1. (a)
      factual matters and legal principles addressed in the outline of submissions dated 18 September 2020. (We note that some of the factual matters relate to matters now no longer relied upon by KB).
    2. (b)
      her response filed 7 December 2020.
  3. [20]
    WK submits that KB has failed to establish:
    1. (a)
      an arguable case;
    2. (b)
      harm, detriment, prejudice, injury, damage or other disadvantage if the stay is not granted;
    3. (c)
      the balance of convenience in favour of the grant of the stay[2].
  4. [21]
    WK submits that the stay should be refused because:
    1. (a)
      KB was offered an opportunity to act as joint administrator with WK, however, declined to accept that proposal, stating her preference for the Public Trustee to take care of her father, and that she would be scared to act as administrator.[3]
    2. (b)
      KB failed to adduce any evidence before the Tribunal to support her allegation of misconduct by WK as to care arrangements for the adult as well as management of his financial matters.
    3. (c)
      Reliance on a “recently formed relationship” is unreasonable given WK is the adult’s spouse and has properly attended to his care and medical arrangements and administration of financial affairs.
    4. (d)
      The suitability argument is not substantiated.
    5. (e)
      It is irrelevant that KB was appointed sole executor and trustee of the adult’s Will.

Legal framework

  1. [22]
    In her amended application for leave to appeal or appeal, KB does not say whether she asserts errors of fact or errors of mixed fact and law. In both cases leave to appeal will be required.[4]
  2. [23]
    Section 58 of the QCAT Act provides for the making of interim orders. That is the provision of the QCAT Act to be applied in circumstances where leave to appeal is required, as in this case.[5]
  3. [24]
    Apart from the conventional tests applied in the grant of a stay, as set out in WK’s submissions, it is necessary for an applicant to demonstrate exceptional circumstances before an order in the nature of a stay will be granted, pending leave to appeal.[6]
  4. [25]
    In considering whether exceptional circumstances are shown, it is relevant to consider the basis on which leave to appeal will usually be granted. Leave may be granted where there is some question of general importance upon which further argument, and a decision of the appeal Tribunal, would be of public advantage; or there is a reasonable argument that the decision is attended by error and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.[7] An appeal against an exercise of discretion, such as the Member’s decision, requires an error such as the Member acting on a wrong principle, allowing extraneous or irrelevant matters, mistaking the facts, not taking into account some material consideration or on the facts reaching an unreasonable or plainly unjust result.[8]

The decision

  1. [26]
    The Member concluded that without a substitute decision maker, the adult’s needs will not be adequately met, or interests adequately protected. That conclusion is not challenged in the appeal.
  2. [27]
    The Member considered that it may have been appropriate to make a joint appointment as administrator, given the adult’s joint appointment of KB and WK under the Enduring Power of Attorney. However, the Member found that KB clearly rejected joint appointment. The transcript of the hearing confirms that is the case. Accordingly, the Member went on to consider whether WK was appropriate to appoint as administrator.
  3. [28]
    The Member expressed the view that the adult wanted to appoint family members where appropriate and that it is preferable to appoint family members rather than an institutional administrator.
  4. [29]
    It was found that the material provided by KB was vague and unconvincing as to WK being a flight risk and someone who may take action to act dishonestly in dealing with the adult’s affairs. He noted the extent of the adult’s estate to be in excess of $2 million.
  5. [30]
    The following factors were found in favour of appointment of WK as administrator:
    1. (a)
      the recent declaration as to suitability for appointment;
    2. (b)
      WK is the adult’s wife and she is best placed to liaise with interested parties and make decisions that best meet the adult’s needs;
    3. (c)
      the existence of WK’s financial management plan which is comprehensive;
    4. (d)
      WK’s intention to obtain advice from a financial planner, noting that all assets other than the family home are held in investment accounts at the Commonwealth Bank of Australia and it may be appropriate to revisit that in complying with the laws regarding prudent financial advice.

Are exceptional circumstances shown?

  1. [31]
    We think the Member gave a reasoned explanation for his decision and that there is an evidentiary basis disclosed in the decision for the findings made by the Member. In our view, the Member took into account relevant considerations. On a preliminary assessment, which is the extent of the analysis required at this interlocutory stage, we do not think an arguable case of error has been shown. We do not think that any exceptional circumstances have been shown which justify the grant of a stay of the decision.

Other considerations

  1. [32]
    Beyond a failure to show exceptional circumstances, and by reference to the conventional principles, KB has not provided any submissions in relation to harm or prejudice to her, if the stay is not granted.
  2. [33]
    As to the balance of convenience, KB has not said how the adult’s needs might be met or protected if the appointment of WK is stayed, resulting in the adult having no appointed substitute decision maker for financial matters.
  3. [34]
    WK submits and we accept that if the application to stay the decision were granted, it would cause significant prejudice to the adult as there would be no provision for any person to lawfully manage his financial affairs until the appeal has been determined.
  4. [35]
    For these reasons, we do not consider there are grounds to stay the decision.

Order

  1. [36]
    The application is refused.

Non-publication

  1. [37]
    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.[9] On the Tribunal’s own initiative, we order pursuant to s 66 of the QCAT Act that publication of information that may lead to the identification of the adult is prohibited. The order is made until further order in the appeal proceedings.  Accordingly, these reasons for decision have been de-identified.

Footnotes

[1] QCAT Act, s 61, s 64.

[2] La Macchia v Department of Housing and Public Works [2015] QCATA 143, [9],[11].

[3] Transcript 27 July 2020; page 1-3, LL1-15; LL25-27; page 1-24, LL25-40.

[4] QCAT Act, s 142(3)(b)

[5] QCAT Act, s 58; Hessey-Tenney v Jones [2018] QCATA 131.

[6] Simonova v Department of Housing and Public Works [2018] QCA 60 per McMurdo JA, followed in Hessey-Tenney v Jones [2018] QCATA 131.

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

[8] House v The King [1936] 55 CLR 499, 505-505.

[9] GA Act, s 114A.

Close

Editorial Notes

  • Published Case Name:

    KB v The Public Trustee of Queensland and Ors

  • Shortened Case Name:

    KB v The Public Trustee of Queensland

  • MNC:

    [2020] QCATA 173

  • Court:

    QCATA

  • Judge(s):

    Senior Member Guthrie, Member Fitzpatrick

  • Date:

    18 Dec 2020

Appeal Status

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