FDK[2024] QCATA 19

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an appeal from a decision of the Tribunal sitting in the guardianship jurisdiction. On 5 April 2022, the Tribunal heard applications filed by FDK’s daughter, NNG, who had applied to QCAT for various orders and directions about the validity of an EPOA and, in the alternative, for the appointment of a guardian to make decisions about FDK’s personal matters and an administrator to make decisions about FDK’s financial matters.
2. [2]
   By way of background, NNG was one of three attorneys appointed under an enduring power of attorney (‘EPOA’) dated 13 February 2015 to make decisions about FDK’s financial, personal and health matters. There was also an EPOA dated 20 November 2019, appointing FDK’s son, FND, to make decisions about FDK’s financial, personal and health matters.
3. [3]
   Following an oral hearing before the Tribunal, the Tribunal made a final decision on 11 April 2022, to revoke the 2015 EPOA and the 2019 EPOA and to appoint the Public Guardian as guardian for FDK’s health care and the Public Trustee of Queensland (‘PTQ’) as administrator for FDK’s financial matters.^[1] This required the Tribunal to apply the Powers of Attorney Act 1998 (Qld) (‘POA Act’), the Guardianship and Administration Act 2000 (Qld) (‘GA Act’) and the Human Rights Act 2019 (Qld) (‘HR Act’).
4. [4]
   The Tribunal’s oral reasons are contained in the transcript of proceedings dated 3 May 2022.
5. [5]
   FND now appeals the Tribunal’s decision of 11 April 2022, identifying 13 grounds of appeal in the application for leave to appeal or appeal that are said to contain errors of law for which leave to appeal is not required.^[2] In the oral hearing before this Appeal Tribunal, Mr Redpath, legal representative for FND, submitted that the 13 grounds of appeal can be conveniently dealt with as two primary grounds of appeal that are both errors of law, now set out below:

   1. The Tribunal failed to afford procedural fairness;
   2. The Tribunal failed to consider the best interests of FDK under the GA Act.
6. [6]
   In the oral hearing before this Appeal Tribunal, Mr Redpath submitted that FND now applies for an order to set aside the Tribunal’s decision dated 11 April 2022 and for the Appeal Tribunal to rehear the matter.^[3] Alternatively, FND seeks a final order to set aside the Tribunal’s decision dated 11 April 2022 and for the matter to be remitted back to a differently constituted Tribunal to rehear the applications filed in QCAT.
7. [7]
   In addressing the first primary ground of appeal, Mr Redpath submitted in the oral hearing before the Appeal Tribunal that the Tribunal is not bound by the rules of evidence. However, it is a fundamental tenet of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) that QCAT is bound to apply the principles of natural justice and afford procedural fairness as reflected in s 28(3)(a). Mr Redpath submitted that there is an obligation on the Tribunal to ensure that parties put their case to the Tribunal and are given an opportunity to respond to another party’s case. At the conclusion of the hearing below it is said that the Member told the parties that the Tribunal would adjourn the hearing so that directions can be made to provide further information that may be required. Instead, it is submitted by Mr Redpath, the Tribunal made a decision not requiring any information be provided, and not asking any party for any view about its decision to revoke the EPOA documents and to appoint the Public Guardian and the PTQ. Mr Redpath submitted to this Appeal Tribunal that the Member should have told the parties about what was being considered before making final orders, or should have sought the filing of submissions as to those matters. Further, it is submitted that this is what the rules of natural justice require the Tribunal to do, and it did not occur.
8. [8]
   In addressing the second primary ground of appeal, Mr Redpath submitted in the oral hearing before the Appeal Tribunal that there was a failure to consider the best interests of FDK as required under the GA Act. Mr Redpath referred us to s 5 and the general principles contained in s 11B of the GA Act that he said must be applied. Mr Redpath submitted that although the Tribunal below had difficulties connecting FDK to the hearing, there was electronic evidence contained in a USB flash drive that was a recording of FDK and the Member could have considered this. Mr Redpath submitted that he accepts the Tribunal is under-resourced, but some greater effort should have been made by the Tribunal to consider FDK’s interests.

Do the grounds of appeal raise a question of law?

9. [9]
   We are satisfied that, properly framed, the two primary grounds of appeal raise a question of law for which leave to appeal is not required. A failure to afford procedural fairness is an error of law. The common law duty to ‘act fairly’ and to afford procedural fairness in administrative decision making depends on the circumstances of the case.^[4] There is a statutory duty under s 28 of the QCAT Act that requires the Tribunal to, amongst other things, observe the rules of natural justice. Section 29 of the QCAT Act requires the Tribunal to take all reasonable steps to ensure a party to a proceeding understands the practices and procedures, the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the Tribunal relating to the proceeding. Further, s 103 of the GA Act requires the Tribunal to give each active party a reasonable opportunity to present their case.
10. [10]
    Turning to the second primary ground of appeal, the GA Act does not specifically require the Tribunal to consider the best interests of FDK, as contended by FND in the appeal. There is, however, a statutory requirement to consider in a relevant matter the views, wishes and preferences expressed or demonstrated by the adult. Relevantly, in a guardianship proceeding, the GA Act refers to the person to whom the proceeding is about as the adult. Section 81(2) of the GA Act provides that in performing its functions or exercising its powers in relation to an adult, the Tribunal must, to the greatest extent practicable, seek and take account of the views, wishes and preferences expressed or demonstrated by the adult and the views of any member of the adult’s support network. Further, the general principles as set out under s 11B of the GA Act must be applied by the Tribunal in performing a function or exercising a power under the GA Act. The general principles refer more broadly to recognising the adult’s human rights and fundamental freedoms, empowering the adult to exercise human rights and fundamental freedoms and amongst other things maximising an adult’s participation in decision-making. A failure by the Tribunal to apply the relevant statutory provisions contained in the GA Act, in a relevant proceeding before QCAT, is an error of law.^[5]  Leave to appeal is not required.

What happened in the Tribunal hearing below?

11. [11]
    NNG had applied to the Tribunal below for an order about an EPOA, the appointment of a guardian and for the appointment of an administrator.
12. [12]
    The validity of the 2019 EPOA was a contentious issue in the hearing below including whether FDK had capacity to make it. FND had been appointed under an EPOA on 20 November 2019 for personal, health and financial matters, at which time FND commenced acting as an attorney in accepting a placement for FDK in an aged care facility.^[6] Prior to FDK moving into an aged care facility, FDK lived in her house with FND and his family from about June 2019.^[7] Before FND moved into the house, NNG lived with FDK in her house from 2016 to about June 2019, inclusive.^[8] It was noncontentious in the hearing below that FDK had capacity to make decisions as at July 2019, when NNG moved out of the property and FND and his family moved into the property.^[9]
13. [13]
    There was evidence relevant to FDK’s capacity as at 2019, contained in an Aged Care Assessment (‘ACAT’).^[10] NNG argued in the hearing below that her brother FND was present for the entire duration of the ACAT assessment and that there were issues with, as stated, ‘undue influence’.^[11] As reflected in the transcript of the hearing below, NNG submits that the 2019 EPOA is not valid, not only due to the fact that FDK did not have the requisite capacity at the time it was made but more significantly because of the undue influence that FND placed upon FDK.^[12]
14. [14]
    As reflected in the transcript, the Tribunal explored the circumstances surrounding the making of the 2019 EPOA and questioned the witness to the EPOA.^[13] It is clear from the transcript that the witness to the 2019 EPOA does not recall witnessing FDK’s signing the document.^[14] In relation to the evidence about FDK’s capacity to execute the 2019 EPOA, the Member said:

...I am very conscious the Tribunal at least is very light on medical evidence as to the lady’s capacity over a long period of time…^[15]

15. [15]
    The Tribunal went on to say:

‘Under the [GA Act], the Tribunal is authorised to obtain information as it seems fit….I was told the care facility has the timeline on the development of dementia, so that was something….What I am troubled about…’.^[16]

16. [16]
    At another time in the hearing below the Tribunal said:

…Again, I do recognise I am missing all of her professional reports from Dr Marshall over a year and a half which is a bit of a problem for the Tribunal…^[17]

17. [17]
    In relation to FDK’s financial matters and how they have been managed by FND as her attorney, the transcript of the hearing below shows that the Member identified FDK’s assets including cash held in a bank account and the sale of FDK’s ‘duplex’ property and some shares.^[18] The Member determined that there had been an approximate deduction of $90,000 in FDK’s assets over two years and asked FND questions about this.^[19] The Member also asked FND questions about him living in FDK’s house.^[20]
18. [18]
    In the hearing below, the Member said, ‘[t]here is very, very, little factual evidence on file as to [FDK’s] estate’.^[21] Further, the Member indicated that more evidence of what exactly had happened to FDK’s assets and income over the past two years was required and that an adjournment of the hearing may be necessary.^[22] The relevant extract from the transcript is set out below:

What I’m minded to do is adjourn this entire hearing and direct that the attorney does provide, one, a financial management plan, moving forward, and two, full accounts to the Tribunal covering the period from 20^th of November 2019 up until the 5^th of April 2022. This would allow the Tribunal a much greater understanding of the financial matters ascertaining to the lady, and would allow the accounts to be audited probably by an external examiner, just to make sure that the claims by FDK as to competency in managing this estate in the lady’s best interests and in accordance with the legislation, can be demonstrated. Whatever determinations the Tribunal does make, if I did adjourn, the financial information would be critical.^[23]

19. [19]
    In the hearing below, the Tribunal told the parties that FDK was unable to attend the hearing and acknowledged that FDK’s view are of great importance:

…the Tribunal is unable to contact FDK in the care facility in which she lives [a]nd the views of this lady herself are of great importance to the Tribunal. The Tribunal has been unable to make contact with FDK. Does anybody know anything about this?...^[24]

20. [20]
    The Tribunal went on to say that the Tribunal did request FDK attend the hearing:

…[the care facility] did recommend that this lady may struggle to attend the hearing. However, the Tribunal did request that she did attend, so the Tribunal has at least some contact with her…^[25]

21. [21]
    The Tribunal also expressed concern with the non-appearance of FDK in the hearing:

…Now, there are several problems this afternoon and I am concerned, as I said, and I will [say] it again, with the non-appearance of FDK. It is important to the Tribunal, as I said, to have some contact somehow with this lady so the Tribunal can ascertain what might be her views and wishes today. I have to accept that this isn’t possible…^[26]

22. [22]
    And later the Tribunal referred to the incredible amount of allegations and said that there was no voice from FDK:

One of my problems…is the lack of independent views and opinions in this matter. As I say, I refer [to it] being the incredible amount of allegations and counter-allegations. There’s no voice from FDK herself and there’s very little independence. There is a dearth in my view of medical opinions over the past couple of years.^[27]

23. [23]
    As reflected in the transcript, the Member reserved the Tribunal’s decision at the conclusion of the hearing and indicated to the parties that the Tribunal would make orders, as stated by the Member, ‘of what I have determined to do probably by early next week’.^[28] The relevant extracts from the transcript at the conclusion of the hearing are set out below:

What I’m going to do today is adjourn the hearings because I just don’t feel I have enough information at [hand] today to make such important determinations. Whatever, I’m going to reserve the decision. It’s probable I’ll adjourn all three applications. I may well ask for further medical information, I’m not yet sure. I will go back and read the documents and the oral evidence today, notes of the oral evidence, and listen to the transcript.

I am going to direct the attorney to provide accounts from 20^th of November 2019 until today so that at least there’s clarification for all parties, including the tribunal, that these accounts have been – probably externally audited, and there are no problems with the finances. The finances are significant and it’s my view that’s one of the first issues which need to be addressed.^[29]

24. [24]
    The Tribunal went on to say that it was reserving the decision and would make orders of what it had determined by early the next week:

I am today, under the law, [the GA Act], reserving this decision. I will make orders of what I have determined to do probably by early next week ...^[30]

25. [25]
    On a date after the oral hearing, on 11 April 2022, the Tribunal revoked the 2015 and 2019 EPOAs and appointed the Public Guardian for FDK’s health care matters and the PTQ for FDK’s financial matters.^[31] Oral reasons for the Tribunal’s decision were given on 3 May 2022.

What were the Tribunal’s reasons for its decision?

26. [26]
    On 3 May 2022, the Tribunal gave oral reasons for its decision. As reflected in the Transcript, the Tribunal outlined relevant background information and identified the issues to be determined with reference to the relevant legislation. The relevant extract from the transcript identifying the issues to be determined is now set out below:

In this case, therefore, the Tribunal needed to consider the following issues: one, does [FDK] have impaired capacity for relevant matters at present, ie, the 5^th of April 2022? If so, is the [2019 EPOA] valid and is it being operated in [FDK’s] best interest? If not, should the [2015 EPOA] be activated? If not, is there a need for relevant decision[s] to be made to the extent that without an appointment with regard to an administrator, [FDK’s] needs will not be adequately met nor her interests protected? If so, who is appropriate for appointment as guardian and as administrator?^[32]

27. [27]
    The Tribunal found that the presumption of capacity to which FDK was entitled under the legislation was, as of 5 April 2022, rebutted for significant or complex personal, health and financial matters.^[33]
28. [28]
    The Tribunal summarised the medical evidence and the evidence of the witness cross-examined in the hearing below, relevant to FDK’s capacity and the execution of the 2019 EPOA.^[34]
29. [29]
    The Tribunal identified the orders sought by NNG at the oral hearing as being that the EPOA dated 20 November 2019 be set aside on the grounds that it is invalid and the EPOA dated 30 February 2015 be reinstated. The Tribunal referred to NNG’s written submissions filed that included, as stated, ‘a range of directions about various matters to be made to the attorney’ and that, as stated, ‘[m]ost of these matters will be the responsibility of the substitute decision maker who will be identified by the Tribunal and appointed today for FDK’s matters.’^[35]
30. [30]
    The Tribunal summarised some of FND’s submissions and said that of great concern was the, as stated, ‘dearth of reliable financial evidence’ and referred to the sale in early January 2019 of FDK’s shares and of her duplex units and, amongst other things, a significant number of repairs, maintenance and renovations made to FDK’s house.^[36] The Tribunal went on to say that it required considerably more evidence on these matters and said, as reflected in the transcript, ‘in the absence of any bank account statement or evidence of any other investment sales, etcetera, it is absolutely impossible at the present for the Tribunal to follow the paper trail of all of [FDK’s] financial matters since late 2019 or to be able to substantiate any of the claims of [FND]’.^[37]
31. [31]
    The Tribunal went on to say, as reflected in the transcript, ‘as mentioned in the hearing [one option] was to adjourn the hearing and direct the attorney to provide the appropriate and detailed financial returns. Ensuing, however, by the end of the hearing, the Tribunal was convinced that any adjournment in this regard was not warranted’.^[38]
32. [32]
    The Tribunal referred to the benefit of having the matters resolved immediately and amongst other things, recognised its obligations under the GA Act. The Tribunal said there was a ‘significant ongoing level of conflict between the two children’ and said there was ‘little respect or trust and very little communication’.^[39] The Tribunal found that the presence of substantial conflicts severely impaired the ability of any of the family members to consult with their fellow family members and that a family member in conflict was unlikely to be able to comply with the general principles under the GA Act.^[40] The relevant extract from the Transcript is set out below:

The Tribunal, therefore, found that the presence of such substantial conflicts severely impaired the ability of any of the family members to consult with their fellow family members so that all family members could be meaningfully involved and have input into decisions, providing information about a decision that had already been made is not the way to seek meaningful input into the decision-making process. It is not the fact of family conflict which, of itself, mitigates away from the appointment of a family member as a decision maker. It is far more to the point that a family member in conflict with others is unlikely to be able to comply with the general principles as outlined in the [legislation] including, for example, giving other family members the opportunity for meaningful input.^[41]

33. [33]
    The Tribunal found that the two children of FDK were not appropriate as attorneys and that both EPOAs should be revoked. Further, the Tribunal found that neither of FDK’s children would be appropriate as guardian or administrator.^[42]
34. [34]
    The Tribunal went on to consider the requirements as set out under s 12 of the GA Act that are relevant to the appointment of a guardian or administrator. The Tribunal considered that possibly an appointment of the Public Guardian and the PTQ might remove some of the conflict from the family dynamic. Further, the Tribunal said that, as stated, ‘the Tribunal is strongly convinced that the expectation that one child of an adult be made responsible for the investigation of the actions of another child cannot be in the best interests of the family.’^[43]
35. [35]
    The Tribunal considered the relevant human rights as set out under the HR Act before making final orders to revoke the 2015 and 2019 EPOAs and appoint the Public Guardian for health care decisions to be reviewed in 5 years and the PTQ for financial matters to remain current until further order.^[44]

Ground 1: was there a failure to afford procedural fairness?

36. [36]
    We accept the submission advanced in the oral hearing before this Appeal Tribunal by Mr Redpath appearing for FND, that the Tribunal made a decision not requiring any information be provided, and not asking any party for any view about its decision to revoke the EPOA documents and to appoint the Public Guardian and the PTQ. 
37. [37]
    We also accept Mr Redpath’s submission advanced in the oral hearing before us that the Tribunal should have told the parties about what was being considered before making final orders, or sought the filing of submissions as to those matters and this is what the rules of natural justice require the Tribunal to do.
38. [38]
    As can be seen from the transcript of the hearing below, the Tribunal held concerns about a lack of material or evidence about certain matters relevant to the applications to be determined including FDK’s capacity to make the 2019 EPOA, FDK’s views about the applications and FDK’s financial matters. Further, in the hearing below, the Tribunal told the parties of its intention to adjourn the applications and that the Tribunal may make directions for the provision of further material about relevant matters.
39. [39]
    Despite the Tribunal telling the parties in the hearing below that it had concerns about the lack of information before it and that it intended to adjourn the applications and make directions for the provision of further information, the Tribunal proceeded to make a final decision without affording the parties an opportunity to submit further information about those matters of concern. Further, as discussed above, the decision to revoke the 2015 and 2019 EPOAs and to the appoint the Public Guardian and the PTQ as substituted decision makers was substantially based on the evidence before the Tribunal of conflict between FDK’s children, FND and NNG. The Tribunal found that a family member in conflict with others is unlikely to be able to comply with the general principles.^[45]
40. [40]
    In the oral hearing before us, Mr Redpath appearing for FND submitted and we agree that the Tribunal did not put to FND or NNG the question of why FND should not be the attorney and did not seek their comments before forming a view about their suitability to be attorneys.
41. [41]
    The presence of conflict among family may be relevant to determining who should be appointed as a guardian or administrator but is not determinative. The applications before the Tribunal below were for an order about an EPOA and for the appointment of a guardian and administrator. As discussed above, there was a 2019 EPOA appointing FND and an earlier EPOA executed in 2015 appointing NNG and others. As provided under s 50 of the POA Act¸ the 2015 EPOA was revoked by the later 2019 EPOA. Further, the Tribunal is required to presume that FDK has capacity for the matter until the contrary is proven.^[46] This means that FDK, in making an EPOA, is presumed to be capable of making the EPOA freely and voluntarily and that FDK understands the nature and effect of the EPOA.^[47] The presumption of capacity is rebuttable and the burden of proof in terms of establishing that FDK did not have capacity to execute the EPOA falls to the applicant bringing the application for an order about an EPOA, namely NNG.^[48]
42. [42]
    In considering whether to revoke the 2015 and 2019 EPOAs and to appoint the Public Guardian and the PTQ, the Tribunal did not give FND an opportunity to address the Tribunal about how he would comply with the general principles if he was to remain as the attorney appointed under the EPOA in circumstances where conflict with his sibling was clearly present.
43. [43]
    Although, as submitted by NNG in the oral hearing before us, there was evidence of significant conflict between FND and NNG, the Tribunal did not afford FND the opportunity to respond to the question of whether he should remain as an attorney, nor did the Tribunal raise with FND in the hearing below the question of whether the 2019 EPOA should be revoked on the basis that FND was unlikely to apply the general principles. The Tribunal’s failure to afford FND an opportunity to present submissions and relevant evidence about his suitability as attorney deprived FND of a fair hearing.^[49] As held in TJ v The Public Trustee of Queensland & Anor^[50] it was incumbent on the Tribunal to take appropriate steps to ensure that FND did not suffer a disadvantage and this duty arises because of s 29 of the QCAT Act.^[51] Section 29 requires the Tribunal to, amongst other things, take all reasonable steps to ensure each party to a proceeding understands the practices and procedures of the Tribunal and the nature of assertions made in the proceeding and the legal implications of the assertions and any decision of the Tribunal relating to the proceeding.
44. [44]
    In the present matter before the Appeal Tribunal the disadvantage or unfairness to FND arises because the Tribunal below gave many indications to the parties in the hearing that there was a lack of evidence or information relevant to the issues to be determined and that the matter may be adjourned so that directions can be made for the provisions of the further material. The Tribunal did not make directions but proceeded to revoke the 2019 EPOA in the absence of evidence about FND’s suitability to remain as an attorney. FND was not afforded an opportunity to present further evidence or to respond to the question of his suitability relevant to the issue of whether the 2019 EPOA should remain with FND as the attorney. Ground 1 of the appeal is allowed.

Ground 2: The Tribunal failed to consider the best interests of FDK under the GA Act

45. [45]
    FDK’s views about the applications that are before the Tribunal are relevant. As provided under s 81(2) of the GA Act, in performing its functions or exercising its powers under the Act in relation to an adult, the Tribunal must, to the greatest extent practicable, seek and take account of the views, wishes and preferences expressed or demonstrated by the adult and the views of any member of the adult’s support network.^[52] The Tribunal is also required to apply the general principles as set out under s 11B that include, amongst other things, an adult is presumed to have capacity for a matter, and an adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account.
46. [46]
    As discussed above, the Tribunal told the parties in the hearing below that FDK was unable to attend the hearing and acknowledged that FDK’s view were of great importance. Despite this, and the Tribunal having indicated to the parties about the need to adjourn the proceedings, the Tribunal proceeded to make final orders without taking into consideration FDK’s views, wishes and preferences.
47. [47]
    We consider that it was open to the Tribunal, having adjourned the applications, to give FDK an opportunity to participate in a hearing. It was also open to the Tribunal to appoint a representative under s 125 of the GA Act to represent FDK’s views, wishes and interests in the hearing. It is important to highlight that in the present appeal a written submission has been filed in the Appeal Tribunal outlining FDK’s views, wishes and interests about the applications that were before the Tribunal below.^[53] It is not necessary for this Appeal Tribunal to make any finding about FDK’s views and wishes contained in the submission filed because, for reasons explained below, this Appeal Tribunal is not proceeding to rehear the matter in the event the Tribunal’s decision below is set aside. Further, we do not consider it necessary to address NNG’s submissions raised in the oral hearing before us about the weight to be attached to the written submissions filed that are said to outline FDK’s views and wishes. We consider this is a matter to be considered by the Tribunal who will rehear the matters, in the event the appeal is allowed and the Tribunal’s decision set aside.
48. [48]
    In relation to ground 2 of the appeal, we are satisfied that the Tribunal failed to consider FDK’s views and wishes about the applications, as required by the GA Act. Ground 2 of the appeal is allowed.

Conclusion

49. [49]
    We have found error in the Tribunal’s decision to revoke the 2019 EPOA and to appoint the Public Guardian and the PTQ. The Tribunal below did not afford FND a fair hearing and failed to apply the GA Act that requires the Tribunal to, amongst other things, to the greatest extent practicable, seek and take account of FDK’s views, wishes and preferences, expressed or demonstrated by FDK.
50. [50]
    In allowing the appeal, it is necessary to proceed under s 146(c) of the QCAT Act to set aside the Tribunal’s decision and return the matter to the Tribunal for reconsideration with the hearing of additional evidence.
51. [51]
    In allowing the appeal, we consider it necessary to remit the matter (GAA10475-21; GAA10476-21; GAA10477-21) to the Tribunal for reconsideration by a differently constituted Tribunal. The Tribunal may consider whether it is necessary to appoint a representative for FDK under s 125 of the GA Act to represent FDK’s views, wishes and interests in the hearing. We order accordingly.