MEC v The Public Trustee of Queensland
[2021] QCATA 11
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- Unreported Judgment
- MEC v The Public Trustee of Queensland[2021] QCATA 11
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MEC v The Public Trustee of Queensland[2021] QCATA 11
MEC v The Public Trustee of Queensland[2021] QCATA 11
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MEC v The Public Trustee of Queensland [2021] QCATA 11 |
PARTIES: | MEC (applicant/appellant) |
v | |
THE PUBLIC TRUSTEE OF QUEENSLAND (respondent) | |
APPLICATION NO/S: | APL156-17 |
ORIGINATING APPLICATION NO/S: | GAA7668-16 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 22 January 2021 |
HEARING DATE: | 28 March 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Senior Member Guthrie Member Paratz |
ORDERS: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – OTHER CASES – where the Tribunal dismissed the application for a declaration about capacity – where the Tribunal made findings that the applicant did not have capacity to make complex financial decisions when subject to an involuntary treatment order – where the Appeal Tribunal found the evidence supported the findings made by the Tribunal – where leave to appeal was refused – where the appeal was dismissed Guardianship and Administration Act 2000 (Qld) ss 1, 5, 5(b), 7(a), 12, 31, 146, 146(1), Schedule 2, Schedule 4 Anti-Discrimination Act 1991 (Qld) Queensland Civil and Administrative Tribunal Act 2000 (Qld) ss 142(3)(b), 147 Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99 Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170 Cachia v Grech [2009] NSWCA 232 CF v TCML [1983] 1 NSWLR 138 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404 Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 Dearman v Dearman (1908) 7 CLR 549 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 Fehily v Atkinson [2016] EQCH 3069 Fox v Percy (2003) 214 CLR 118 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hewitt v Bayntun & Allianz Australia Insurance Ltd [2015] QSC 250 McD v McD [1983] 3 NSWLR 81 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 MEC [2017] QCAT 117 Minister for Immigration and Multicultural and Indigenous Affairs v Al-Miahi (2001) 65 ALD 141 Morris v Clair [2004] QSC 127 Pickering v McArthur [2005] QCA 294 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented but did not attend |
Respondent: | Nguyen, H from the Office of the Official Solicitor to the Public Trustee of Queensland Granzien, D, Trust Officer, Public Trustee of Queensland |
REASONS FOR DECISION
- [1]MEC has appealed the decision of the Tribunal to dismiss her application for a declaration about capacity on 21 February 2017. The learned Member delivered written reasons for the decision on 3 April 2017. At all relevant times, the Public Trustee of Queensland was appointed as administrator for MEC for all financial matters until further order of the Tribunal.
- [2]MEC filed submissions in support of her application for leave to appeal and appeal but did not attend the oral hearing. The hearing proceeded in MEC’s absence with the Public Trustee of Queensland relying on their written submission dated 11 December 2017 and their submissions in reply dated 23 February 2018. At the hearing, we granted the Public Trustee of Queensland leave to be legally represented in the proceeding.
- [3]MEC also sought to rely on fresh evidence in the appeal, in particular, the decision of the Mental Health Review Tribunal dated 12 December 2017 revoking MEC’s Treatment Authority and the Clinical Report on the Treatment Authority review dated 26 October 2017. Neither of those documents were in existence at the time of the Tribunal’s decision the subject of the appeal. The Public Trustee of Queensland does not object to that evidence being taken into account by the Appeal Tribunal.
- [4]Section 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) provides that an applicant must obtain leave to appeal if the applicant appeals on a question of mixed fact and law.
- [5]The Public Trustee of Queensland submits that MEC’s grounds of appeal raise questions of mixed fact and law so that leave to appeal is required.
- [6]The relevant principles to be applied in determining whether to grant leave to appeal are well established:
- (a)
- (b)
- (c)
- (d)Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[4]
- [7]If an appeal is against a decision on a question of fact only or a question of mixed law and fact, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[5] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[6]
- [8]It is not an error of law to make a wrong finding of fact.[7] Findings of fact by a tribunal will not usually be disturbed on appeal particularly if any facts inferred by the tribunal as forming the basis of its finding are capable of supporting its conclusions and there is evidence capable of supporting any inferences underlining such conclusions.[8] An appellate tribunal may interfere if the conclusion at first instance is contrary to compelling inferences which can be drawn from the evidence.[9]
The Decision of the Learned Member
- [9]The Tribunal may make a declaration about the capacity of an adult for a matter under s 146 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’) which relevantly states:
- (1)The Tribunal may make a declaration about the capacity of an adult … for a matter.
- (2)The Tribunal may do this on its own initiative or on the application of the individual …
- (3)In deciding whether an individual is capable of communicating decisions in some way, the Tribunal must investigate the use of all reasonable ways of facilitating communication, including, for example, symbol boards or signing.
- (1)
- [10]‘Capacity’ is defined in Schedule 4 of the GAA to mean:
Capacity for a person for a matter, means the person is capable of –
- (a)understanding the nature and effect of decision about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.
- [11]The learned Member approached the application by considering whether the applicant was capable of understanding the nature and effect of decisions about financial matters as defined in Schedule 2, Part 1 of the GAA. The learned Member dismissed the application finding that MEC:
- (a)Does not have capacity for financial matters relating to the preservation or improvement of her estate or in making investments;
- (b)Is not able to make or implement decisions about her capital and income in a reasonable, rational and orderly way with due regard to present and prospective wants and needs without undue risk of neglect, abuse or exploitation; and
- (c)Has impaired capacity for complex financial decisions at the present time when subject to an involuntary treatment order.
- (a)
The Appeal
- [12]MEC contends that the learned Member fell into error by:[10]
- (a)
- (b)
- (c)The decision does not acknowledge the GAA’s acknowledgment of a person’s fundamental right to make decisions including the right to make decisions with which others may not agree;[15]
- (d)The decision fails to apply relevant anti-discrimination law;[16]
- (e)The administration order is for those with ‘intermittent capacity i.e. for someone who is intemperate, suicidal or depressed, a drug addict or with a neurological defect’. MEC contends she is competent with her financial affairs;[17]
- (f)There was no evidence to support the Tribunal’s decision and the finding was not specific to MEC’s case;[18] and
- (g)Diagnosis and treatment of back problems, fibromyalgia, and chronic fatigue syndrome requiring hospitalisations in the past were not considered as they would have complicated the diagnosis of mental illness and affected MEC’s medical history.[19]
- [13]The Public Trustee of Queensland submits that the learned Member took the correct approach in taking into account what the position might be for MEC in the reasonably foreseeable future, balancing between respecting the autonomy of MEC and her right to make decisions, and ensuring that if MEC requires assistance to make decisions she is provided with it, and in examining MEC’s ability to weigh relevant information to reach a decision when assessing whether MEC understands the nature and effect of decisions. The Public Trustee of Queensland notes that in the learned Member’s written reasons the learned Member has:
- (a)Considered the statutory test of capacity in ss 146(1) and 7(a), and the definition of capacity in Schedule 4 of the GAA;[20]
- (b)Identified the issue for determination, that is, whether the applicant has impaired capacity in relation to decisions concerning any of the matters described from (a) to (p) of Schedule 2 Part 1 of the GAA and whether MEC has the ability to understand the nature and effect of those decisions;[21]
- (c)Considered when the issue of capacity is to be determined.[22] In doing so, the learned Member considered whether a person with a mental illness is capable of managing his or her affairs in the context of applications under the Mental Health legislation. In particular the learned Member referred to the New South Wales Supreme Court decision of McD v McD [1983] 3 NSWLR 81 which cited CF v TCML [1983] 1 NSWLR 138 141 relating to a person with schizophrenia where the court said ‘one is not restricted to a consideration of matters as they stand on the day of the hearing…one is both entitled and required to consider what the position will be in the reasonably foreseeable future’;[23]
- (d)Considered whether the above approach conflicted with the General Principles in the GAA which require a balance to be drawn between respecting the autonomy of an individual and his or her right to make decisions and ensuring that those who require assistance to make decisions are provided with that assistance;[24]
- (e)Considered what is required by understanding the nature and effect of decisions.[25] The learned Member applied the principle in Fehily v Atkinson [2016] EQCH 3069, 15-16 that to be able to make a decision ‘a person must not only be able to understand information relevant to making it but also be able to weigh that information in the balance to arrive at a choice.’[26]
- (a)
- [14]The Public Trustee of Queensland submits that the learned Member took into account relevant circumstances including:[27]
- (a)The length of time MEC has had paranoid schizophrenia (nearly 20 years);[28]
- (b)MEC’s long history of recurring relapses of her illness including 17 admissions to hospitals and other mental health facilities including some significant inpatient stays;[29]
- (c)A history of urgent applications to the Tribunal followed by applications for the review of the appointment of an administrator on the basis that MEC has capacity;[30]
- (d)Chronology of orders made by the Tribunal over the past 15 years;[31]
- (e)MEC being subject to a Treatment Authority and the pattern of circumstances requiring previous hospital admission;[32]
- (f)MEC’s lack of insight into her condition from the evidence of the Mental Health Tribunal in May 2016 and MEC’s assertions to the Tribunal;[33]
- (g)MEC’s resentment of the Public Trustee of Queensland’s involvement in her financial affairs;[34]
- (h)The extent of MEC’s current management of her finances with the Public Trustee of Queensland;[35]
- (i)The available medical evidence in relation to MEC;[36]
- (j)MEC’s conduct and responses to questions put to her at the hearing;[37]
- (k)The material on the Tribunal’s file sent by MEC in the lead up to her application.[38]
- (a)
- [15]
- [16]Turning then to deal with each of MEC’s grounds of appeal.
- [17]In relation to ground (d), we do not consider that the Anti-Discrimination Act 1991 (Qld) has any application in this case. The learned Member was required to apply the GAA in determining the application for a declaration about capacity. This ground fails.
- [18]In relation to ground (c), we accept that the learned Member did not specifically set out s 5 of the GAA in its entirety. However, at [13] of the leaned Member’s reasons, the learned Member has referenced s 5(c) of the GAA as it was then worded. Later, at [26] while not specifically referencing s 5, the learned Member states:
Whether a person is capable of understanding a transaction or a decision involves an ability to weigh relevant information to reach a decision. It is not necessary that the Tribunal agree with the decision that is made but rather that the adult has sufficient ability to undertake a process of reasoning necessary to make a decision about the matter in question.[41]
- [19]We consider that the learned Member was conscious of the acknowledgements in s 5 including s 5(b):
The right to make decisions includes the right to make decision with which others may not agree ...
- [20]We do not consider that a failure to state in written reasons for decision all potentially relevant provisions of the legislation is an error of law. In any event, the learned Member in our view has considered s 5(b) which is specifically referred to in MEC’s written submissions in the appeal. Further, we have considered the learned Member’s reasons and the transcript of the hearing. Neither reveals a clear decision by MEC in terms of an expenditure or investment of funds in a particular way that MEC wished to make, that either the Public Trustee of Queensland as her appointed administrator refused to support by failing to make funds available or that the learned Member in her reasons relied upon to conclude that MEC did not have capacity for making decisions about financial matters.
- [21]We do not consider that the learned Member erred in failing to refer to s 5 of the GAA.
- [22]We will deal with grounds (a) and (b) and (f) together. The learned Member made findings referring to relevant authority that it was appropriate to take into account the nature and extent of the adult’s mental illness and the probability that, in the foreseeable future, the adult will suffer a relapse and be unable to make decisions regarding financial matters.[42] Ultimately, the learned Member found that MEC had impaired capacity for complex financial decisions at the time of the hearing when subject to an involuntary treatment order.[43]
- [23]In Barr v Amalgamated Property Maintenance Pty Ltd[44] Williams J cited with approval Morris v Clair [45] and Hewitt v Bayntun & Allianz Australia Insurance Ltd.[46] In those cases, the Court was considering whether there was a need for the Court to sanction a settlement or whether the plaintiff was not under a legal disability so as to require a sanction in circumstances where the plaintiff had an illness that was episodic in nature. In all of the cases, the Court decided that the plaintiff did not have impaired capacity such that sanction was required.
- [24]In Morris v Clair Wilson J said:
In summary, the plaintiff has developed a psychotic illness as a result of the accident. It is episodic in nature. If she were floridly psychotic, she would probably be incapable of making decisions about her financial affairs. However, when she is well, she does not lack that capacity. [47]
- [25]On the facts in Morris v Clair Her Honour concluded:
On the evidence the plaintiff is presently capable of understanding the nature and effect of the compromise, freely and voluntarily making the decision to accept the compromise, and communicating that decision. She does not presently have impaired capacity for the ‘matter’ of compromising her legal proceeding. Accordingly, the sanction of the court is not required.
If at some future time the plaintiff becomes incapable of managing her own affairs, consideration can then be given to making an appropriate application to the Guardianship and Administration Tribunal. [48]
- [26]In Hewitt v Bayntun & Allianz Australia Insurance Ltd McMeekin J followed Morris v Clair and identified the particular issue in the case as:
So the issue is whether a vulnerability that is presently not causing any impairment but which might well do so at some time in the future and which, if it becomes manifest, will more than likely result in a wasting of the substantial award, requires a sanction of the compromise or the appointment of an administrator. [49]
- [27]His Honour then went on:
Mr Hewitt understands the the [sic] nature and effect of the compromise – the decision about the matter; he has no present incapacity to freely and voluntarily make decisions about the matter; he has no difficulties in communicating his instructions. The definition of ‘impaired capacity’ is in the present tense, not the future tense. That Mr Hewitt might at some future time, and in the grip of addiction, not understand the nature of the what he is doing or not in any meaningful way be able to freely make decisions in irrelevant. [50]
- [28]The further, His Honour stated:
Where, as here, the taking or using of narcotic drugs is apparently six years in the past then it is difficult to see how the definition of impaired capacity is met. It is couched in the present tense and I think deliberately so. I am conscious of the general principles set out in Sch 1 of the Guardianship and Administration Act concerning self-reliance and a presumption of capacity. What exists here is a potential impairment not an actual one.
…
That an impairment might, but not necessarily must, manifest itself in the future is not, I think, sufficient to justify the making of such an order. [51]
- [29]In Barr v Amalgamated Property Maintenance Pty Ltd Williams J considered the medical evidence before the Court including cognitive testing following the plaintiff undergoing a detoxification program. The opinion expressed following the cognitive testing was that the plaintiff ‘did not present with a level of cognitive impairment that would be likely to impair his decision-making ability on either financial or legal areas’ and that ‘he would benefit from direction, advice and some type of overview in terms of managing his money, which it would appear he is willing to accept from his sister’.[52]
- [30]In each of those decisions, it is clear that the court considered that in determining capacity for a particular matter or impaired capacity for a particular matter the person’s capacity at the time of the decision was what was required to be determined. In the court’s decisions, it appears from the reasons that the court did not consider, on the balance of probabilities that there was a likelihood of episodes which would cause impaired capacity occurring in the very near future. Further, in Barr v Amalgamated Property Maintenance Pty Ltd, the plaintiff was supported by his sister who also provided sworn evidence that she considered that the plaintiff was ‘a totally different person’. [53] The plaintiff too, gave sworn evidence acknowledging his past alcohol consumption, what he intended to do to manage his settlement monies including seeking professional advice about investing the funds.[54]
- [31]Section 146 provides the decision-maker with a discretion to make a declaration about capacity. In this case the learned Member dismissed the application. The learned Member did not make a declaration that MEC does not have capacity for financial decision-making but rather decided not to make any declaration about capacity. It is clear from the learned Member’s reasons that she did so on the basis that she decided she could not make a declaration that MEC had capacity for making decisions about financial matters. In this case, the learned Member decided that MEC did not have capacity for certain financial decision making at the time of the hearing. The learned Member said:
In any event, even with the Involuntary Treatment Order in place, MEC seemed affected by her mental illness in a way that led me to conclude that she did not, at this point in time, have capacity to make complex financial decisions.
Her continued insistence that she was admitted to hospital due to her neighbour’s interference rather than due to her mental illness indicated, in my view, that she still had a significant lack of insight into her mental illness. This, in my view, was of such a degree that it would necessarily have affected her judgment and consequently her ability to make financial decisions about her future. This is because her lack of insight into her mental illness and the delusional beliefs that she still holds would distort her decision-making ability so that MEC would not properly be able to apply relevant information to, and weigh the consequences of decisions in relation to her financial affairs. She would be vulnerable to financial mismanagement, thereby putting her property at risk.
I have also taken into consideration MEC’s conduct and responses to questions put to her in the Hearing. When questioned about why she wanted access to her accounts MEC said it was so she could start a business as an agricultural scientist and became a financial member of certain professional associations in order to attend conference promoted by those organisations. These proposals, in my view, evidence MEC’s financial vulnerability, particularly in view of her relatively modest income and savings.
There is also material on the file, sent by MEC in the lead up to the application which supports my finding that she does not currently have capacity to make complex financial decisions. …
In conclusion, I am of the view that MEC does not have capacity for financial matters relating to the preservation or improvement of her estate or in making investments. I have concluded that MEC is not able to make or implement decision about her capital and income in a reasonable, rational and orderly way with due regard to her present and prospective wants and needs without undue risk of neglect, abuse, or exploitation.[55]
- [32]While we agree that an assessment of capacity should be made as at the date of the hearing, whether or not to make a declaration is an exercise of discretion. In this case, the learned Member concluded that MEC did not have capacity for a range of matters which she described as complex but as set out in the reasons above related to MEC’s income which was modest and her savings. Those findings alone may well have been sufficient not to exercise the discretion to make a declaration about capacity for any financial decision-making. We do not consider that any potential error in taking into account the likelihood that MEC would, when no longer subject to an involuntary treatment order, quickly become non-compliant with her medication, is sufficient of itself to conclude that a declaration that MEC had capacity for any financial decision making would follow. Ultimately, in the circumstances of this case and given the other findings made by learned Member, we do not consider it unreasonable that the learned Member took into account MEC’s financial vulnerability when she is self-managing her illness and not subject to an involuntary treatment authority in exercising the discretion not to make a declaration that MEC has capacity for any particular financial decision-making.
- [33]In her written submissions, MEC refers to the temporary nature of interim orders and states they were made to pay bills while MEC was hospitalised. We do not consider that the making of an interim order is evidence of anything other than the fact that such an order was made so that a Member of the Tribunal must have been satisfied that s 129 of the GAA was satisfied. Interim orders by their very nature are made pending a full hearing of the application filed in the Tribunal, usually for the appointment of a guardian or an administrator for an adult. Interim orders can be made without hearing and determining the substantive application and without complying with the provisions of the GAA including s 118 of the GAA which relates to notifying the adult of the hearing. The presiding Member at the hearing of the application is not bound by any findings that might have been made by the Member who made the interim order.
- [34]The learned Member has set out a chronology of the orders concerning MEC made by the Tribunal in their entirety (both interim and final) in the context and against the background of MEC’s history of mental illness including hospitalisations over the same period of time. In her submissions, MEC agrees that interim orders were sought during periods when she was hospitalised. We do not consider that the learned Member has erred in fact. We consider that the learned Member was entitled to consider the history of MEC’s mental illness and there was no error in identifying the relevant history of MEC’s involvement with the Tribunal to the extent that it provided some support for the conclusion reached by the learned Member that the nature of MEC’s mental illness was fluctuating in nature.[56]
- [35]Further and in any event, it is clear from the learned Member’s reasons that the learned Member concluded that even at the time of the hearing, MEC did not have capacity for particular financial decision-making. The learned Member correctly referred to the definition of ‘capacity’ in Schedule 4 of the GAA. In the reasons for decision, the learned Member considered that MEC was not able to apply relevant information to and weigh the consequences of decisions in relation to her financial affairs.[57] The learned Member had earlier in her reasons made it clear that in applying the definition of capacity to the known facts in this case, she was concerned with MEC’s ability to understand the nature and effect of those decisions. The learned Member clearly stated that she did not find on the evidence that MEC could not make decisions freely and voluntarily or communicate her decisions.[58]
- [36]We do not accept that the decision means that MEC is ‘seen to have impaired capacity for financial matters which is permanent’. The decision of the learned Member does not prevent MEC from making a further application for a declaration about capacity at any time in the future. The learned Member did not make a declaration that MEC does not have capacity for making decisions about financial matters. The Tribunal in its appeal jurisdiction is concerned with determining whether the learned Member made an error of fact and/or law and, if so, what should flow from any identified error. The learned Member concluded that MEC was not able to make or implement decisions about her capital and income in a reasonable, rational and orderly way with due regard to her present and prospective wants and needs without undue risk of neglect, abuse or exploitation.[59]
- [37]The learned Member also considered the absence of effective support systems for financial decision-making available to MEC. In this regard, the learned Member quite rightly considered whether MEC had any support for the types of decisions the learned Member considered MEC could not make herself.[60] The submissions on behalf of the applicant refer to MEC’s good relationship with her siblings. However, none of those persons attended the hearing. It is clear from the record that MEC’s brother was sent notice of the hearing and provided with an opportunity to comment on the application for a declaration about capacity.
- [38]While the learned Member found MEC had impaired capacity for complex financial matters at the time of the decision when MEC was under an involuntary treatment order, the learned Member went on to say that MEC had financial vulnerability when self-managed and that when she is unwell, she has impaired capacity for financial matters generally.[61]
- [39]In our view, based on the medical evidence relied upon by the learned Member, it was open to the learned Member to conclude that MEC lacked insight into her mental health condition and that when she is not under an involuntary treatment authority, she is not compliant with her medication.[62]
- [40]The learned Member set out in her reasons the evidence on which she relied to reach her conclusions.[63] A reading of the transcript does not reveal any evidence that would make reliance on that evidence unsound. MEC was focused on her inability to set up her business due to the involvement of the Public Trustee of Queensland in her life. However, MEC appeared to have little understanding of the resources she had as managed by the Public Trustee of Queensland. While we also accept that the learned Member did not specifically ask MEC how she would make financial decisions in relation to her available funds, the transcript of the hearing reveals that MEC was given an opportunity to articulate how she would make decisions about setting up her own business, attendance at conferences and the like. MEC’s reasoning for why she could not pursue such plans including developing a business plan and proposal for investment in that business with the Public Trustee of Queensland’s involvement was not reasonable. The following parts of the transcript are relevant here:
MEC: I’m well – I have qualifications, and I’m educated, and I know how to budget for money.
Member: Well, I think there is some scope for – to ---
MEC: There’s no scope.
Member: Well ---
MEC: Member … you are talking through your hat. You deal with the Public Trust Office, and you’re dealing with people who are intellectually handicapped, and they treat everybody the same. They do not honour my qualifications, they do not honour me, and the do no honour my present situation of having capacity.
Member: Well, I think Mr Granzien made a good point that your review is – your budget is being reviewed in March ---
MEC: That won’t make any difference.
Member: But it is an opportunity, though, to give you ---
MEC: Oh, sure.
Member: --- greater scope for managing your affairs. I mean, if – I mean, it is it possible for you, between now and March, to target a conference, or to choose conference, say in the next 12 months, that you’d like to attend, and so that you can budget towards going to that, and that would give you something to ---
MEC: I can’t work. Why I did a cert IV and assessment was because they wouldn’t allow me a back account to cover my costs for business, or to cover – to get money paid into my bank account. I can’t. It’s ridiculous.
Member: So once you get that qualification that you’re working towards ---
MEC: I can work now.
Member: --- then – oh, you can? You can get a ---
MEC: Yes.
Member: You can get a job ---
MEC: Yeah.
Member: --- using those qualifications.
MEC: I’m – also have a consultancy.
Member: In your ag science field?
MEC: Yes.
Member: Right.
MEC: And that’s – I mean, by my profession. Public Trust won’t honour that.
Member: Well, do you derive an income from that, from your consultancy?
MEC: I can’t. I can’t. I don’t have a bank account. I have a bank account that I can’t use.
Member: But there’s nothing to stop you ---
MEC: If all my money is held – how would you like to run a business – how would you like to run your – your current position with your bank account held by the Public Trust Office – you can’t do it. It’s impossible. That’s why people don’t work who are with Public Trust.
Member: Well – so you are doing this course at the moment ---
MEC: Yes, I am.
Member: --- and what have you got in mind when you’ve finished that?
MEC: Working for an RTO, or working with my consultancy.
Member: Right, and have you – have you - you know – been making inquiries about getting work in that field, or ---
MEC: Yes.
Member: Yes, all right. And so when will you finish the course?
MEC: Six months’ time – five months’ time.
Member: Five month’s time, all right. So, apart from the conference, are there any other items, you know, that you can ---
MEC: How do I know?
Member: --- foresee that might come up in the ---
MEC: How do you know?
Member: --- next 12 months.
MEC: How do I know? I can’t make any plans, because I don’t have my funds to work with.
Member: Well how much money have you got saved at the moment, in your account? I think you’ve got about seven and a half thousand; is that right? Or am I ---
…
Mr Granzien: Four thousand one hundred.
MEC: Was – has – how can that be?
Mr Granzien: The pension’s actually due this week, I believe ---
MEC: No, no. Not that.
Mr Granzien: Because we’ve bought you a washing machine very recently.
MEC: Oh, that’s right, there was a washing machine.
Mr Granzien: And you’ve had some medical – a number of medical appointments.
MEC: One medical appointment.
Member: All right.
MEC: That’s – that’s $1100. That – there’s a missing $4000 there.
Mr Granzien: No, there’s not a missing 4000. Okay. You had some dental treatment done as well.
MEC: Oh, that’s right. And that came out of my rebate. What was the amount you paid for the dental treatment?
Mr Granzien: Four hundred and forty.
MEC: Yes.[64]
…
MEC: Think about things that I want to do?
Member: Yes
MEC: I can’t do anything, dear. I’m stuck. I’m in a terrible jam.
Member: Except that the money is – the pension. So that’s really the ceiling, I guess, of what you can do.
MEC: Yeah.
Member: It’s just how you budget.
MEC: I can’t earn any money; this is the thing. I’m in the situation where I can’t earn any money.
Member: But you’ll be able to earn money once you get your certificate that you’re working towards.
MEC: I can earn money now, dear. I have a bachelor degree.
Member: Yes.
MEC: I have a graduate diploma – graduate certificate. And I have a master’s. And now I’m going for an RTO – I don’t think I’ll get this RTO. This will be a waste of time if I’m with the Public Trust Office. I can’t do a thing about it.
Member: But you should be able to get ---
MEC: Blow the $390; I don’t care.
Member: Pardon?
MEC: I don’t care if it costs $390; I’m not going to do it if I’m with the Public Trust Office.
Member: The course? Is that how much it costs?
MEC: Yes.
Member: To do the certificate?
MEC: Yes.
Member: Right. Is that the TAFE course?
MEC: Yes.
Member: Okay. All right. But I think that would be intellectually stimulating, wouldn’t it?
MEC: Oh, do you think so?
Member: Well, I think any course is. I might be wrong; it depends what sort of course. What’s the subject matter? Is it ---
MEC: Quite intense.
Member: Is it business management again, or something other ---
MEC: It’s ag science, dear.
Member: Ag science.
MEC: Yeah.
Member: All right. Just you have done some study in business management at Griffith, haven’t you?
MEC: Well, that’s to do with my own personal business. It’s got nothing ---
Member: Right.
MEC: --- to do with working for business.
Member: No so there’s---
MEC: I’m not working for business.
Member: No, so this is for your consultancy?
MEC: Yes.
Member: Yes, yes. So that would help you with your consultancy---
MEC: Yeah.
Member: ---business. Well, it ---
MEC: But I can’t see the point in doing it. Be quite useless to do it. If I’m with the Public Trust Office, there’s no point in anything.
Member: Well, can you just explain that to me, what you mean by that. Like, why do you feel that you – that there’s no point doing the course if you’re with the Public Trust?
MEC: Because I’ll finish it, and they’ll – they will still hang onto my affairs, so I can’t creatively do anything. There’s no creativity in the Public Trust Office. You need that in professional life.
Member: But I think Mr Granzien is, you know, trying his best to give you, you know, as much – he says you’re basically managing your own finances.
MEC: Well ---
Member: You’re paying all the bills from what I can see.
MEC: No, I keep on getting overdue notices. I’m not paying all my bills.
Member: Well - but I think those – are you talking about the Medibank ---
MEC: They should give me my pension to work with. That’s what they should do.
Member: Well, I think they’re giving you most of it, aren’t they, to work with?
MEC: Well, no, they’re not.
Member: Out of $225 ---
MEC: But I can’t do anything. I – there’s no creativity there. I can’t use my intellect. I can’t use my intelligence. [65]
- [41]The learned Member also had the advantage of observing and interacting with MEC. The learned Member referred to this in her reasons.[66]
- [42]We consider the learned Member’s findings were open on the evidence provided at the hearing by MEC and the other evidence the learned Member took into account. We are also satisfied that the learned Member considered MEC’s particular circumstances both in terms of her available funds and the supports available to her.
- [43]In relation to ground (e), the learned Member did not have before her a review of the appointment of the administrator. In any event, the GAA does not refer in any way to ‘intermittent capacity’. In deciding whether to make an order appointing an administrator for an adult, the Tribunal must consider the terms of s 12. The process for a review is provided for in s 31 of the GAA.
- [44]In relation to ground (g), we consider that the learned Member has accurately recorded the medical evidence upon which the learned Member based her findings about MEC’s mental illness diagnosis, the history of her illness and its affect on MEC’s ability to make decisions. The Public Trustee of Queensland has assisted the Tribunal by identifying that MEC asserts that the diagnosis and treatment of her back problems, fibromyalgia and chronic fatigue syndrome which have required hospitalisation in the past may have complicated the diagnosis of mental illness and affected her medical history. The Public Trustee of Queensland submits that in that regard MEC asserts that the learned Member has made an error of fact. [67]
- [45]In her written submission, MEC claims that her historical physical conditions have impacted her psychiatric diagnoses and further, that her recovery from those various physical conditions similarly supports her claim that the impacts of her psychiatric conditions are insignificant.[68] However, there was no medical evidence before the Tribunal to support such a contention. Further and in any event, it is clear that the learned Member considered the medical reports provided to the Tribunal by MEC.
- [46]MEC relies upon the report of Dr Noel Saines, neurologist dated 31 January 2017 in which Dr Saines opines that when MEC’s psychiatric condition is under good control MEC can understand and make her own decisions both personal and financial and both complex and simple. In addition, MEC relies on the report of Dr John Keim, specialist dated 20 June 2016 who also expresses the opinion that MEC can understand and make complex personal and financial decisions ‘when not psychotic’. The learned Member clearly took those reports into account together with other medical information.[69]
- [47]We accept the Public Trustee of Queensland’s submissions that MEC must show that the fact was determinative in a causal sense to the decision made by the Tribunal.[70] In this case, there was clear medical evidence of MEC having schizophrenia and evidence that historically, that illness impaired MEC’s capacity for decision-making.[71] We have also considered the reasons of the learned Member. It is not apparent from the reasons that the learned Member made any error of fact which was determinative in a causal sense to the decision made by the learned Member.
- [48]While we have concluded that none of the grounds of appeal are substantiated, we wish to make some observations about the hearing and reasons of the learned Member.
- [49]The learned Member identified the issue for determination as whether MEC had capacity for all financial matters and specifically, whether MEC was capable of understanding the nature and effect of decisions about all of the matters listed in s 1 Schedule 2 of the GAA:
A financial matter, for an adult is a matter relating to the adult’s financial or property matters, including, for example, a matter relating to 1 or more of the following—
- (a)paying maintenance and accommodation expenses for the adult and the adult’s dependents, including, for example, purchasing an interest in, or making another contribution to, an establishment that will maintain or accommodate the adult or a dependant of the adult;
- (b)paying the adult’s debts, including any fees and expenses to which an administrator is entitled under a document made by the adult or under a law;
- (c)receiving and recovering money payable to the adult;
- (d)carrying on a trade or business of the adult;
- (e)performing contracts entered into by the adult;
- (f)discharging a mortgage over the adult’s property;
- (g)paying rates, taxes, insurance premiums or other outgoings for the adult’s property;
- (h)insuring the adult or the adult’s property;
- (i)otherwise preserving or improving the adult’s estate;
- (j)investing for the adult in authorised investments;
- (k)continuing investments of the adult, including taking up rights to issues of new shared, or options for new shares, to which the adult becomes entitled by the adult’s existing shareholding;
- (l)undertaking a real estate transaction for the adult;
- (m)dealing with land for the adult under the Land Act 1994 or Land Title Act 1994;
- (n)undertaking a transaction for the adult involving the use of the adult’s property as security (for example, for a loan or by way of a guarantee) for an obligation the performance of which is beneficial to the adult;
- (o)a legal matter relating to the adult’s financial or property matters;
- (p)withdrawing money from, or depositing money into, the adult’s account with a financial institution.
- [50]It is clear from the specific terms of the definition of ‘financial matter’ in s 1 Schedule 2 of the GAA that the list of related matters in the section is a non-exhaustive list and the list is provided by way of example. The actions listed are examples of the range of matters which fall within the scope of a financial matter about which decisions might have to be made. The way the issue for determination was expressed by the learned Member might be read as a statement that the definition of a ‘financial matter’ sets out an exhaustive list against which capacity ought to be tested.
- [51]We have found that none of the grounds of appeal are substantiated. We have not found any error of fact made by the learned Member.
- [52]MEC applied for leave to adduce fresh evidence. In Ellis & Anor v Queensland Building Services Authority the Appeal Tribunal said:
New evidence will ordinarily only be allowed if: it could not have been obtained with reasonable diligence at the time of trial; had the evidence been given, it would have had an important influence on the result (although it need not be decisive); and, the evidence is apparently credible, although not necessary incontrovertible.[72]
- [53]The documents MEC sought to admit as new evidence were not in existence at the time of the learned Member’s decision. MEC can make another application for a declaration about capacity at any time. Any information relevant to such an application can be provided to the Tribunal. We do not consider that the new evidence supports any conclusion that leave to appeal ought to be granted to correct a substantial injustice to MEC. Given the findings made by the learned Member regarding MEC’s capacity for financial decision making at the time of the hearing, we do not consider that the new evidence would have led to any different result.
- [54]For those reasons we dismiss the application for leave to appeal, the application to appeal and the application to adduce new evidence.
Footnotes
[1]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.
[2]Cachia v Grech [2009] NSWCA 232, [13].
[3]Pickering v McArthur [2005] QCA 294, 2 [3] (Keane JA).
[4]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578, 580.
[5]QCAT Act s 147(1)-(2).
[6]QCAT Act s 147(3).
[7]Minister for Immigration and Multicultural and Indigenous Affairs v Al-Miahi (2001) 65 ALD 141.
[8]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.
[9]Bakker & Kramer v Richards Projects Pty Ltd [2014] QCATA 99.
[10]As summarised in the Submissions in reply of the Public Trustee of Queensland 11 December 2017.
[11]Paragraph 5, page 1 of the Applicant’s Submissions; Paragraph 1, page 6 of the Applicant’s Submissions.
[12]Paragraph 2, page 2 of the Applicant’s Submissions; Paragraph 2, page 3 of the Applicant’s Submissions.
[13]Paragraph 5, page 1 of the Applicant’s Submissions.
[14]Paragraph 5, page 1 of the Applicant’s Submissions; Paragraph 2, page 2 of the Applicant’s Submissions.
[15]Paragraph 4, page 2 of the Applicant’s Submissions; Guardianship and Administration Act 2000 (Qld) s 5, see in particular s 5(b).
[16]Paragraph 3, page 3 of the Applicant’s Submissions.
[17]Paragraph 3, Part C of the Application for Leave to Appeal or Appeal.
[18]Paragraph 5, page 1 of the Applicant’s Submissions.
[19]Paragraph 6, page 1 of the Applicant’s Submissions.
[20]MEC [2017] QCAT 117, [6]-[18].
[21]Ibid [18].
[22]Ibid [19]-[24].
[23]Ibid [22].
[24]Ibid [24].
[25]MEC [2017] QCAT 117 [25]-[26].
[26]Ibid [25].
[27]Paragraph 36, page 8 Respondent’s Submissions.
[28]MEC [2017] QCAT 117 [28].
[29]Ibid [29].
[30]Ibid [30].
[31]Ibid [32].
[32]Ibid [33].
[33]MEC [2017] QCAT 117, [34]-[35]; Transcript of Proceedings, 1-19, 34.
[34]MEC [2017] QCAT 117, [36].
[35]Ibid [37].
[36]Ibid [38]-[43].
[37]Ibid [49].
[38]Ibid [50]-[51].
[39]Transcript of Proceedings, 1-9, 15-16.
[40]Transcript of Proceedings, 1-9, 25-26.
[41]MEC [2017] QCAT 117, [26] (emphasis added).
[42]Ibid [19]-[20].
[43]Ibid [54].
[44][2020] QSC 170.
[45][2004] QSC 127.
[46][2015] QSC 250.
[47][2004] QSC 127, [10] quoted in Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, [21].
[48][2004] QSC 127, [17]-[18] quoted in Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, [24].
[49][2015] QSC 250, [13] quoted in Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, [28].
[50][2015] QSC 250, [20] quoted in Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, [29].
[51][2015] QSC 250, [28]-[30] quoted in Barr v Amalgamated Property Maintenance Pty Ltd [2020] QSC 170, [31].
[52][2020] QSC 170, [44].
[53]Ibid [44], [34]-[35]
[54]Ibid [33].
[55]MEC [2017] QCAT 117, [47]-[52].
[56]MEC [2017] QCAT 117, [28]-[32] (inclusive).
[57]Ibid [48]-[49].
[58]Ibid [18].
[59]Ibid [52]-[53].
[60]MEC [2017] QCAT 117, [53].
[61]Ibid [54].
[62]Ibid [38]-[43], [46].
[63]Ibid [44]-[51].
[64]Transcript of Proceedings, 1-22 to 1-25 (inclusive).
[65] Transcript of Proceedings, 1-38 to 1-40 (inclusive).
[66]MEC [2017] QCAT 117, [49].
[67]Paragraph 37, page 9 of the Respondent’s Submissions.
[68]First paragraph on page 2 of the Applicant’s Submissions.
[69]MEC [2017] QCAT 117, [33]-[41].
[70]Submissions on behalf of the respondent dated 11 December 2017 at [38] citing Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, 220-221.
[71]See reports on the Medical part of the Tribunal’s record of proceedings.
[72][2010] QCATA 93, 3 [7]. See also Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 QdR 404, 408.