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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
JM v The Public Guardian & Ors  QCATA 50
the public guardian
the public trustee of Queensland
ORIGINATING APPLICATION NO:
G41730; GAA4527-20; GAA4529-20; GAA6922-20; GAA6924-20
16 April 2021
On the papers
Senior Member Howard
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant seeks an extension of time to bring an appeal against a decision in guardianship proceedings – where applicant seeks extension of time on medical grounds – where insufficient medical evidence – whether adequate explanation for delay – whether appeal grounds have merit on preliminary view – whether presumption of capacity is relevant to consideration of prejudice – relevance of the nature of guardianship proceedings and the general principles under the Guardianship and Administration Act 2000 (Qld) to consideration of an application for extension of time to bring an appeal
Anti-Discrimination Act 1991 (Qld), s 101
Guardianship and Administration Act 2000 (Qld), s 11, s 11B, s 103
Powers of Attorney Act 1998 (Qld), s 33
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 61, s 143
Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175
Crime and Misconduct Commission v Chapman  QCAT 229
Musgrave v Grimberg  QCATA 106
Reeve v Hamlyn  QCATA 133
No appearance for the Public Guardian
No appearance for The Public Trustee of Queensland
J Keir, solicitor of Keir Steele Waldon Lawyers for MM
No appearance for PM
A Fortt, solicitor of Mackey Wales Law for KM
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
- The Tribunal made a decision in a guardianship proceeding on 9 September 2020. JM filed an application for leave to appeal or appeal the decision on 6 November 2020, outside of the prescribed time limit for filing an application for leave to appeal or appeal. Therefore, it can only proceed if an extension of time to file the application for leave to appeal or appeal is granted.
- For the reasons that follow, I refuse to extend the time for filing the application for leave to appeal or appeal.
- JM made several applications in the Tribunal’s guardianship jurisdiction seeking a range of orders relating to his grandmother, MM. The applications sought orders including: a declaration that MM has impaired capacity; that KM be removed as an attorney for MM; an order for MM to undergo assessment of her capacity; and a non‑publication order in respect of the proceeding.
- On 9 September 2020, the Tribunal issued a decision in effect refusing all applications made by JM and making directions for filing of submissions in relation to costs of the proceedings. The existence of an enduring power of attorney (EPOA) was noted by the Tribunal. A declaration was made that MM had capacity for all personal and financial matters. An application for directions and an application for non-publication orders, respectively, were dismissed.
- The QCAT registry sent the decision of the Tribunal to the parties on 17 September 2020. JM acknowledges that he received the Tribunal’s decision on 23 September 2020.
- An application for leave to appeal or an appeal of a decision by the Tribunal must be made within 28 days after the ‘relevant day’; relevantly here, the day a person is given notice of the decision. The last day for filing of the application for leave to appeal or appeal in the time provided by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) was therefore 21 October 2020.
- JM seeks an extension of time on the grounds that he (JM) has ‘numerous’ medical conditions which prevented him from filing his appeal within the prescribed time frame. JM submitted that he could provide a medical certificate as evidence in support; however, he requested that he not be required to provide the respondents with a copy of the medical certificate to protect his privacy. JM subsequently filed a report of Natasha Evans dated 19 December 2013 (the contents of which are now the subject of a non-publication order). This report was filed by JM on 21 January 2021, stating that his general medical practitioner was absent on leave until early February 2021.
- KM’s representatives suggest that JM did not properly serve the application, but in any event filed submissions in response. KM submits that an extension of time should not be granted as no reasonable explanation for the delay has been provided. Further, KM submits that the principle of finality and the interests of justice support the refusal of the extension of time, in circumstances where MM (the adult who is the subject of the proceeding) is a ‘frail pensioner’. In relation to the medical grounds for delay, KM submits that JM had not provided any ‘sworn or affirmed evidence’ explaining how his medical conditions affected his ability to comply with the time for filing. KM also contends that the application for leave to appeal or appeal lacks merit.
- On 11 February 2021, MM’s representatives filed a submission stating that MM had not been served with a copy of the application for leave to appeal or appeal or the application for an extension of time. Nevertheless, they submit that the evidence before the Tribunal, the conduct of the hearing and the presumption of capacity indicate poor prospects on any appeal. MM’s representatives relied upon the submissions of KM regarding the application for an extension of time.
Should an extension of time be granted?
- Subject to s 61(3) of the QCAT Act, the tribunal has broad discretionary power to extend the time for filing of an application for leave to appeal or appeal pursuant to s 61 of the QCAT Act.
- As the High Court of Australia made clear in Aon Risk Services Pty Ltd v Australian National University, court (and by extension, tribunal) resources are for the benefit of not only the litigants to particular proceedings but also the public. Statutory time limits on bringing different proceedings are in place for a reason, and finality in litigation is highly desirable.
- It is well established that in deciding an application for an extension of time to file an application for leave to appeal or appeal, the Appeal Tribunal will consider relevant factors including the following:
- (a)the length of the delay;
- (b)whether there is a satisfactory explanation for the delay;
- (c)the strength of the case on appeal, (if possible, on the preliminary material available), intended to be brought and prospects of success;
- (d)the likelihood of prejudice to the other parties; and
- (e)overall, whether an extension of time is in the interests of justice.
Length of and explanation for delay
- JM filed his application for leave to appeal or appeal some 16 days late. The extension of time sought is therefore relatively short.
- JM’s application for an extension of time states that he suffers from numerous medical conditions associated with his service in Iraq in 2006 and that these recently prevented him from filing the appeal within the prescribed time frame.
- Further, referring to Reeve v Hamlyn and Musgrave, JM submits that certain provisions in the AD Act operate in this context to override any and all common law principles about the exercise of discretion under s 61. JM states that his medical conditions are attributes protected under the AD Act and that he is able to show based on medical evidence, that these medical conditions were the reason for delay. Overall, as I understand it, the argument seems to be that JM’s medical conditions caused the delay and are a protected attribute under the AD Act, and that, due to the operation of s 101 of the AD Act, the Appeal Tribunal is compelled to grant him an extension of time on the basis that this is a ‘relevant statutory prescription’ as described in Reeve v Hamlyn.
- As set out earlier, JM filed a report setting out medical information on 21 January 2021. However, relevantly, the report is dated in 2013. It does not address JM’s currently diagnosed medical condition/s (acknowledging of course that some diagnoses may be unchanged), nor how JM’s condition/s are said to have impacted on him and/or his ability at the relevant time so as to prevent him from complying with the prescribed time frame for filing his application for leave to appeal or appeal.
- I am not satisfied that the medical evidence provided by JM satisfactorily (or at all) explains the delay in filing of the application for leave to appeal or appeal. It cannot reasonably be inferred from a report that is 8 years old that JM’s conditions and their effect upon him remain unchanged or that they had any particular effect upon him at the relevant time. Further, I observe that even if the evidence supported a finding that his symptoms prevented him from complying with the prescribed time frame during the relevant period of delay, that would nevertheless be but one of the factors to be considered in determining whether an extension of time should be granted. There are other relevant considerations, as identified earlier. JM’s arguments based on the AD Act are misconceived.
Preliminary assessment of the strength of the application for leave to appeal or appeal
- As set out earlier, the Tribunal’s decision which is the subject of the proposed appeal proceeding notes the existence of an enduring power of attorney (dated 12 March 2010 appointing KM and PM jointly as attorneys for all financial, personal and health matters); declares that MM has capacity for all personal and financial matters; dismisses applications of JM for directions and a non-publication order; and makes directions in relation to a costs application.
- JM sets out 5 proposed grounds of appeal:
i. error of law in granting leave for legal representation, in essence by taking into account an irrelevant consideration that is not provided for in s 43 (in particular, in s 43(3) of) the QCAT Act;
ii. error of law in accepting written submissions submitted less than 24 hours prior to hearing, containing allegations JM contends that he was not given the opportunity to rebut, which constituted a breach of natural justice;
iii. JM alleges he was ‘not given the opportunity to present his case’ relying on s 103(1) of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’);
iv. error in finding that the enduring power of attorney had not yet commenced, on the basis that the adult had capacity. JM submits that evidence showed that the EPOA had in fact been exercised, and therefore it must be in effect; and
v. that the Tribunal’s decision does not accord with medical evidence provided by a medical expert, Dr Costello.
- Referring to each ground in turn, KM submits, respectively, that:
- the decision to grant leave is a discretionary decision and no error is demonstrated;
- the documents referred to by JM as being filed shortly prior to hearing were a written outline of submissions filed by KM’s legal representatives which raised no new matters;
- JM had the opportunity to present his case;
- the Tribunal considered all submissions, including MM’s oral evidence and medical evidence provided by JM, which supported the presumption of capacity; and
- Dr Costello, a neurologist, confirmed MM’s capacity. The report was organised by the Office of the Public Guardian.
- JM responded to KM’s submissions and disputes them. I do not need to set out all of the details here, but suffice it to say that JM says he would have sought legal advice had he known in advance that his submissions against legal representation for the other parties would be rejected; and he disputes that the report of Dr Costello supports a finding of capacity.
- On a preliminary basis, I make the following observations. JM alleges error of law in considering the application for leave for legal representation. Section 43 provides for parties generally in QCAT to represent themselves unless the interests of justice require otherwise. That said, some parties may be represented as specified in s 43(2). Otherwise, leave of the Tribunal must be sought. Although s 43(3) of the QCAT Act provides for some matters that may support a grant of leave, the tribunal has a broad discretion and may consider matters as may be relevant in the particular case in exercising its discretion. Further, whether JM might also have sought legal representation if he’d known his objection would fail is not an argument that the Tribunal erred in deciding whether to grant leave.
- A perusal of Dr Costello’s report reveals his opinion that despite mild age-related cognitive impairment, MM ‘gave clear reasoning/description’ and that MM was able to make all simple and complex decisions about health care; accommodation; other personal matters; and services. In respect of financial matters, he indicated that she could make all simple decisions, as well as, complex decisions ‘with assistance of sons’. Accordingly, it would appear that the Tribunal’s declaration about MM’s capacity was not inconsistent with Dr Costello’s report.
- JM says that KM’s written submissions raised new allegations that JM’s applications were vexatious and lacking in substance and were part of an ‘ongoing campaign of intimidation and harassment’ by JM. Even assuming that what JM says is correct and the submission had not been earlier made, its filing shortly before the hearing does not, of itself, suggest that there was a breach of procedural fairness. Provided that JM was given notice of adverse allegations that were relevant, credible and significant to the issues to be decided and an opportunity to address them at the hearing, procedural fairness was observed.
- On the material, it is not apparent that the Tribunal accepted the submission about which JM complains or made findings about it. It was not relevant to the threshold and central issue, that is, whether MM had capacity to make her own decisions, from which disposition of the other applications (other than the application for a non‑publication order) flowed. After all, if MM has capacity to make all decisions, the Tribunal has no mandate to interfere with the exercise of her autonomy.
- The submission may be relevant to the Tribunal’s determination about whether a costs order is made. However, the Tribunal did not decide the question of costs in the decision sought to be appealed. Directions were made for submissions to be filed by the parties in relation to costs and for the cost applications to then be decided.
- The enduring power of attorney executed by MM provides, as the Powers of Attorney Act 1998 (Qld) (‘the PAA’) allows, that the power for financial matters commences immediately. In respect of personal and health matters, the power if exercisable when the principal has impaired capacity but not otherwise. Therefore, the error alleged by JM, appears to suggest some confusion on JM’s part, rather than error by the Tribunal.
The likelihood of prejudice or detriment to other parties
- JM referred to section 61(3) of the QCAT Act, which provides:
The tribunal can not extend or shorten a time limit or waive compliance with another procedural requirement if to do so would cause prejudice or detriment, not able to be remedied by an appropriate order for costs or damages, to a party or potential party to a proceeding.
- JM submits there is no evidence or submissions as to any prejudice or detriment to a respondent which could not be remedied through costs.
- This proceeding does not concern a civil dispute between JM and a third party. The guardianship proceedings are about MM. As JM accepts, MM is an elderly person aged some 94 years who is physically frail. The Tribunal found MM had capacity for all matters. Through her lawyers, she says that she is content with the decision of the Tribunal.
- I find that it is relevant here that, absent the rebuttal of the presumption of capacity, MM is entitled to make her own decisions and arrangements as she chooses. As an exercise of her autonomy, she made an enduring power of attorney to ensure that if her capacity became impaired, she had decision-making arrangements of her choosing in place.
- It is reasonable to infer, and I do, that ongoing proceedings about her, in which she must participate in order to protect her own interests are a considerable burden, particularly at her advanced age of 94 years, and when she is frail. Although this personal impact may not be the type of prejudice or detriment in the sense that is ordinarily understood to occur in proceedings as a result of delay, I find that it is a considerable detriment to MM in the sense of being a considerable imposition in her life to be required to deal with further proceedings, in circumstances that she has been found to have capacity for all matters and when JM’s proposed grounds of appeal in respect of the threshold issue of capacity have no apparent merit.
- Further, in order to represent her interests, she may reasonably seek leave for legal representation in the appeal proceedings, noting that she had lawyers in the guardianship proceeding and has had lawyers provide submissions for her in this proceeding. As the proceeding is about her, she will necessarily be compelled to play a key role in resisting any appeal. I find that being, in effect, compelled to be involved in and reasonably incur (further) legal costs in ongoing appeal proceedings would represent a detriment to MM in the circumstances.
The interests of justice
- For the reasons explained, I find that JM has not given a satisfactory explanation for the delay in filing his proposed application for leave to appeal or appeal. Further, on a preliminary view, there appears to be limited merit in the proposed appeal, and importantly, in relation to the issue of MM’s capacity. Under the guardianship regime, the presumption of capacity applies to MM. Further, not only was the presumption not rebutted, but the Tribunal made a declaration that MM had capacity for all matters. MM’s life as an older person in frail health reasonably stands to be detrimentally and adversely affected personally and financially by the imposition of appeal proceedings upon her in which, to protect her own interests, she would necessarily have to participate.
- JM’s disagreement with the arrangements MM has chosen for herself, the basis for his disagreement, nor KM’s views or submissions as to the basis for JM’s objection to the arrangements are substantially relevant while MM has capacity for all matters, except as to costs incurred in the proceeding.
- It is relevant also that under the guardianship regime, if MM’s circumstances change, a fresh application may be made in respect of her decision-making arrangements should be necessary in the future.
- In all of the circumstances, I am not satisfied that it is in the interests of justice for an extension of time to be granted to JM for the filing of his proposed appeal.
- Accordingly, the application for an extension of time should be refused.
- I make orders accordingly refusing the application.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3); s 143(5)(a).
 (2009) 239 CLR 175.
Reeve v Hamlyn  QCATA 133,  (‘Reeve v Hamlyn’).
 Crime and Misconduct Commission v Chapman  QCAT 229, ; Reeve v Hamlyn, .
 At .
 Musgrave v Grimberg  QCATA 106 (‘Musgrave’).
 At .
 PAA, s 33.
 GAA, s 11(1); s 11B – general principles – principle 1.
 Ibid, s 11B.
- Published Case Name:
JM v The Public Guardian & Ors
- Shortened Case Name:
JM v The Public Guardian
 QCATA 50
Senior Member Howard
16 Apr 2021