Re KJN[2025] QCATA 73

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION 

1. [1]
   This is an appeal from a decision of the Tribunal at first instance^[1] that the adult, KJN, had capacity to make an enduring power of attorney (‘EPA’) at the time of its making on 12 January 2021 and decision-making capacity at the time of the hearing. In addition to the question of capacity, the appeal also challenges the decision to dismiss an application to have the 12 January 2021 EPA declared invalid. 
2. [2]
   KJN is 93 years old and has been successful in business, with interests in real estate agency, service stations, commercial property, residential renting, farming and land development. He holds those interests personally and through a partnership, companies and trusts. He has three sons and it is evident that there has been some family conflict, though each of his sons is involved in one or other aspects of his businesses.
3. [3]
   Under the EPA executed on 12 January 2021, KJN appointed one son, KPL, and his wife, KJ, jointly as his attorneys for personal/health and financial matters. The challenge to the EPA and in relation to KJN’s capacity, both at first instance and on appeal, was brought by another of the sons, KJS.
4. [4]
   The grounds of appeal are that the Tribunal at first instance erred:

   1. in not providing reasons for its decision within the time allowed by s 122(3) of the Queensland Civil and Administrative Tribunal Act 2009 Qld (‘QCAT Act’);
   2. in failing to give adequate reasons for its decision that KJN had capacity to make complex financial decisions;
   3. in failing to set aside the EPA on the ground that it was not duly executed; and
   4. in concluding that KJN had capacity.
5. [5]
   Grounds 1, 2 and 3 raise questions of law, while ground 4 deals with a question of fact or mixed law and fact. The latter ground, which goes to the weight that ought to have been accorded to particular evidence, requires leave to appeal.^[2] The question of leave is discussed, below, in the context of the discussion in relation to ground 4 of the appeal.

Ground 1

6. [6]
   In relation to the first ground of appeal, the question is whether the failure to comply with the requirements of s 122(3) of the QCAT Act invalidates the decision made by the Tribunal at first instance. Section 122 provides, in part:

   1. This section applies if the tribunal makes a decision in a proceeding, including its final decision, and does not give written reasons for the decision. 
   2. A party to the proceeding may, within 14 days after the decision takes effect under section 127, request that the tribunal give written reasons for the decision. 
   3. The tribunal must comply with a request under subsection (2) within 45 days after the request is made or, if the president extends the period, the extended period.
7. [7]
   In the present case, the decision was issued on 26 September 2023 and a request for reasons was made three days later. The reasons were not provided until 10 January 2024, clearly well outside the 45 day time-frame.
8. [8]
   The appellant submits that the President cannot extend time once reasons have been given and, further, the effect of the failure to provide reasons within the 45-day time frame vitiates the decision. Reference is made to Drew v Makita (Australia) Pty Ltd,^[3] for the proposition that a failure to give sufficient reasons is an error of law. It is submitted that, by extension, a failure to give any reasons at all is also an error of law.

9. [9]
   The appellant also refers to the decision of the NSW Court of Appeal in Palmer v Clarke (‘Palmer’),^[4] in which it was held that both the common law and the relevant Act and Rules of court required the delivery or reasons at or virtually immediately after the time when judgment is pronounced. Accordingly, additional reasons given some three months after judgment were not a ‘written opinion of the court’ and could not be used on appeal to remedy deficiencies in the earlier reasons.
10. [10]
    Reference is also made to the decision in Richmond v BMW Australia Finance Ltd (No 2) (‘Richmond’),^[5] where it was argued that an order made by a Federal Magistrates Court was not validly made in circumstances where the reasons were given 21 days after the making of the order. While the Full Court of the Federal Court referred to the common law obligation to deliver reasons promptly and in public, it was held that the governing legislation made it clear that the Magistrates Court had power to reserve judgment and, having delivered judgment, a power to reserve reasons. 
11. [11]
    While the Court in Richmond referred to the ‘importance’ of prompt publication of reasons and the ‘desirability’ of giving reasons as soon as possible, it was held that the 21-day delay was not ‘beyond appropriate limits’.^[6] No reference was made to the consequences of any undue delay.
12. [12]
    More recently, in Rock v Henderson; Rock v Henderson (No 2) (‘Rock’),^[7] the NSW Court of Appeal reviewed the authorities, including the decision in Palmer, on the question of the consequences of delay in delivering reasons, in the context of both the common law and applicable court rules. In relation to the common law and at least in civil cases, the Court expressed ‘some difficulty’ with the proposition that the duty is to deliver reasons at or immediately after judgment is pronounced, given that now ‘it is not uncommon for the court to announce its decision and state that it will provide its reasons later’.^[8] The Court expressed the common law rule in terms of ‘an obligation to give reasons as soon as reasonably practicable after judgment is delivered’.^[9] It was added:

Whether a court has failed to comply with that obligation will depend on all relevant circumstances, including the nature of the issue to be decided, the length of the delay and the reasons for any delay.

13. [13]
    As is noted above, s 122(3) of the QCAT Act makes provision for the giving of reasons within 45 days after a request for reasons is made. The question is what are the consequences of a breach of that provision.

14. [14]
    In Rock, it was noted that in Palmer and other authorities it was accepted that the failure to give reasons at the time of judgment or at a time that was otherwise permitted was not jurisdictional error, but rather an error of law.^[10] On that basis, it was stated:^[11]

the remedy should be confined to what is necessary to correct the error. That approach is consistent with the conclusion that the error is not a jurisdictional one. The parties should only be put to the cost and inconvenience of a retrial if that is the only way of rectifying the consequences of the error. 

15. [15]
    In that case, it was noted that the delay was lengthy and, given that the appeal period ran from the date of judgment, initially it was not possible for the appellants to formulate grounds of appeal. However, that problem was overcome by the filing of an amended notice of appeal once the reasons became available. It was also stated that there was no reason to think that the delay affected the content of the reasons or that the orders might have been different had they been delivered at the same time as the reasons. Having further stated that there was no suggestion of any prejudice to the parties as a consequence of the delay, the Court concluded that no further orders were required to address the error.
16. [16]
    It remains that the consequence of a breach of a statutory provision rests on the proper interpretation of the legislation in question.^[12] There does not appear to be anything in the relevant provisions of the QCAT Act to indicate that it was intended that a failure to comply with s 122(3) would invalidate the related decision. It was acknowledged by the appellant that the strict approach advocated would mean that invalidity would arise where, for any reason, there was a delay of even one day, regardless of the reason for the delay and the impact of a rehearing on the parties.^[13] It is also noted that the President can extend time and there is nothing to indicate that any extension cannot be retrospective.^[14] 
17. [17]
    Further, s 121(4) of the QCAT Act provides that the Tribunal must give either oral or written reasons for its final decision in a proceeding. No time-frame is prescribed. It is to be imagined that it was not intended that the validity of a decision would depend on whether or not a request for reasons was made. Otherwise, invalidity might arise where there was even a short delay in responding to a request, but not so in the case of a longer delay where no request for reasons was received. Also, the objects at s 3 of the QCAT Act, including economy, fairness and informality, are not consistent with a rigid approach to determining the consequences of any delay in providing reasons for a decision. Those consequences might vary, depending on all the circumstances of a given case. 
18. [18]
    As to the consequence of non-compliance with s 122(3) of the QCAT Act in the present case, the approach adopted in Rock is instructive. As in that case the delay in providing reasons was lengthy. However, in the present case, unlike in Rock, there was no impact on formulating the grounds of appeal. That is because by s 143(4)(b) of the QCAT Act an appeal must be filed 28 days after the ‘relevant day’. The latter term is defined at s 143(5)(c) to mean ‘the day the person is given written reasons for the decision being appealed against’. Other than the fact of the error, the appellant has not indicated any prejudice that is said to have arisen. As in Rock, there is no reason why the parties should be put to the cost and inconvenience of a rehearing and no further orders are warranted to correct the error.

19. [19]
    Ground 1 of the appeal is rejected.

Ground 2

20. [20]
    Ground 2 of the appeal is that the Tribunal at first instance erred in failing to give adequate reasons for its decision that KJN had capacity to make complex financial decisions. A failure to provide adequate reasons involves a question of law.^[15] 
21. [21]
    The reasons in question covered some 76 pages. However, it is submitted that they mainly involved a recitation of the evidence and submissions and that only one and a half pages, covering five paragraphs, were dedicated to analysis. In particular, it is submitted that there was no reference to or discussion of: any inconsistency in the evidence of witnesses; the reliability, strengths or weakness of the evidence of any witness; or whether the evidence of one expert was to be preferred over another and if so why.
22. [22]
    The issue of adequacy of reasons was considered by the Court of Appeal in Sunshine Coast Hospital and Health Service v Webb (‘Sunshine’).^[16] Morrison JA, with whom Fraser and Mullins JA agreed, referred to what was said by McMurdo JA in R v Kay; Ex parte Attorney-General (Qld) [2016] QCA 269, in that case in the context of the necessity to give reasons on an application to a judge for recusal:¹⁸

The difficulty in framing the question here is understandable: the point must be one of general application yet, as is well established, what constitutes a sufficient expression of reasons is dependent upon the facts and circumstances of the individual case. In Cypressvale Pty Ltd v Retail Shop Lease Tribunal, McPherson and Davies JJA said that “Whether or not reasons given for a decision can be characterised as adequate or otherwise involves a variety of different considerations” and that “What is adequate depends on the circumstances of the case.” They cited a statement by Hutley JA in Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd that “The extent to which a court must go in giving reasons is incapable of precise definition.” The judgments in Cypressvale extensively discussed the authorities on which courts have attempted to explain what is sufficient in this respect. But ultimately there is no test by which the adequacy of reasons can be assessed, except to say that they should be adequate to serve the purposes for which reasons for judgment are required, as one or more of those purposes apply to the particular case. As French CJ and Kiefel J said in Wainohu, the content and detail of the required reasons will vary not only according to the nature of the jurisdiction but the particular matter the subject of the decision.”

23. [23]
    In Sunshine, Morrison JA added (citations omitted):^[17]

More recently, in R v Conn; R v Conn; Ex parte Attorney-General (Qld), this Court adopted what was said by Edelman J in GAX v The Queen: 

The obligation to provide adequate reasons does not require a court of appeal to write reasons which disclose every aspect of the thought process which leads to the court’s conclusion independently of the manner in which the case was presented. Submissions provide context to the reasons given by a court.

24. [24]
    In relation to the adequacy of reasons given by a tribunal, in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs the Full Court of the Federal Court stated:^[18] 

It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact … and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised “with an eye keenly attuned to error”. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law.

25. [25]
    In the present case, the Tribunal at first instance was concerned with two issues: first, whether KJN had capacity as at the date of the hearing and capacity to make the EPA on 12 January 2021 and, second, whether the EPA of 12 January 2021 was validly executed. 
26. [26]
    The second of those issues is discussed, below, in relation  to ground 3 of the appeal.
27. [27]
    In relation to the first issue, it is evident that there are a number of passages in the reasons, dealing with the question of capacity, that at first glance appear to be first person analysis. That is because of use of the personal pronoun ‘I’. However, those passages are in fact taken directly from the evidence or submissions. 
28. [28]
    The appellant refers to the decisions in Porter v The Queen^[19] and Atanaskovic Hartnell Services Pty Ltd v Kelly^[20] in relation to the principles referrable to the copying of submissions into judgments. As noted in Porter at [32]:

Such a practice raises the spectre that the judge has not independently considered the evidence or reached their own independent conclusions of fact or law.

29. [29]
    On the other hand, in Porter, at [35], reference is made to the decision of the Full Court of the Supreme Court of South Australia in Amaca Pty Ltd v Wefel (2020) 138 SASR 295, where it was stated:

… we are not prepared to find that where there is extensive copying without attribution, without more, the reasons are thereby inadequate and the resulting decision necessarily vitiated. Much depends on what has been copied and whether, nevertheless, the decisionmaker has performed the task of engaging with the case of each party and making decisions on what divides the parties, whether they be matters going to evidence, or matters referrable to legal principles and the proper application of those to the evidence before the court.

30. [30]
    In Porter, at [36], there is also reference to the decision of the NSW Court of Appeal in Li v Attorney General for New South Wales [2019] NSWCA 95, where Brereton JA stated:

It is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues.  

31. [31]
    In the present case, following the extensive reference to the medical evidence^[21] and the even more extensive reference to the submissions of the parties,^[22] much of which is taken directly from the evidence or submissions, the ‘Discussion’ covers 16 paragraphs and approximately six pages. Also, the Tribunal Member referred to the relevant provisions of the Guardian and Administration Act 2000 (Qld) (‘GAA Act’) and the Powers of Attorney Act 1998 (Qld) (‘POA Act’), as well as case law in relation to a determination of the issue of capacity.^[23]  
32. [32]
    However, the appellant submits that there was no reference to or discussion of: any inconsistency in the evidence of witnesses; the reliability, strengths or weakness of the evidence of any witness; or whether the evidence of one expert was to be preferred over another and if so why. 
33. [33]
    It is submitted that after setting out the evidence and submissions, the Tribunal Member ‘merely announced his conclusions’ that: KJN’s evidence in the witness box did not go to capacity and was merely an ‘isolated memory lapse’ (at [181]); and with appropriate compensatory strategies KJN had capacity (at [182], [184]).
34. [34]
    That submission ignores that the lengthy detailing of the evidence and submissions made in relation to those issues set the foundation for the subsequent discussion, which did include references to the strengths and weaknesses of particular evidence: see, for example, at [177] and [180]. Distinctions were also drawn between particular items of evidence and there are summaries and some early comment on the evidence provided: see, in particular, at [68]-[75]. 
35. [35]
    Later, under the heading ‘Discussion’ (at [170]-[185]), the evidence was further summarised and comment was made in relation to particular medical evidence, relevant to the question of capacity. At [170] it is noted that all of the medical witnesses agreed that KJN had minor cognitive impairment and, at [172], there is reference to a medical report that indicated that while he had a good understanding of his businesses and was no longer in a state of delirium, ‘he needed some independent decision-making support’. There is then reference, at [173], to the level of capacity required of someone to manage complex as distinct from simple financial affairs, as well as to the presumption of capacity: at [176]. 

36. [36]
    It was concluded that KJN’s financial matters are complex and that he would require a high level of capacity to undertake them: see at [175]. It was also noted that none of the medical experts considered that KJN had impaired capacity for simple financial matters: at [175].
37. [37]
    The reasons, at [176], then set out the evidence of Dr DH, who was of the opinion that KJN had impaired capacity for complex financial matters. It is then noted that Dr DH accepted that KJN was anxious and that could have affected his test results. Other issues were raised in relation to Dr DH’s evidence; in particular, KJN did not have functioning hearing aids, he had difficulty understanding the doctor’s accent, Dr DH did not understand the sort of decisions that KJN needed to make, and the time with DH was limited to two hours: at [177]. It was further noted that Dr DH ‘only scanread’ affidavit material relating to the business interests of KJN. It is then stated, at [177]:

The matter which Dr DH assessed KJN on specifically was in regard to his ability to deal with medication for which KJN was not able to show he had capacity, and Dr DH extrapolated from that, having regard to his limited knowledge of KJN’s complex financial matters, that he had impaired capacity in that regard.

38. [38]
    There is then discussion of the evidence of Prof M and Dr Z, who were of the view that KJN did have appropriate capacity. That evidence included that KJN was able to perform given mathematical tasks and that he was asked a series of questions about his business, how it operates and the decisions he was required to make: at [178]. His answers to those questions were checked with his accountant, who was of the view that KJN was able to operate his business competently. The Tribunal Member subsequently stated, with reference to the evidence of Prof M and Dr Z, at [180]:

They made the effort to discuss KJN’s business practices with him and verify his answers with his accountant as opposed to basing their decision on KJN’s inability to deal with an issue about an unrelated matter such a dose reduction.

39. [39]
    The Tribunal Member further states, at [180], that Prof M and Dr Z tailored their approach having regard to his difficulties, giving him plenty of time and using more extensive testing such as ‘the TMT test’ to show that, given time, KJN could complete the task. It was added: ‘so that his performance on the MOCA was not truly indicative of his capacity … he performed better on the memory component of the ACE-R than the MOCA’.
40. [40]
    The appellant also submits that the failure of the Tribunal at first instance to expressly state that it preferred the evidence of Prof M and Dr Z and Dr H over that of Dr DH indicates that it did not engage with the evidence.^[24] However, the reference to the evidence and submissions as outlined above, coupled with the observations made and 

conclusions drawn, clearly indicate a preference for the evidence of Prof M and Dr Z. That should also be seen in the context of the presumption of capacity.

41. [41]
    In relation to the suggested inconsistencies in the evidence, it is not made clear what those inconsistencies are, though in the appellant’s submissions there is reference to KJN’s evidence and to matters said to be suggestive of a lack of capacity, including matters such as not being able to identify the beneficiaries of trusts, understanding the duties owed by company directors, and recalling when his wife died.
42. [42]
    On the other hand, KJN’s performance as a witness was discussed by the Tribunal Member, at [181]:

KJN’s performance as a witness under cross-examination was also raised as an issue by KJS. I note that with his verbal fluency difficulties, which were acknowledged by all medical experts, not going to capacity, there would be some issues with meandering answers from KJN. The areas raised by KJS related to KJN being unable to name the beneficiaries of the trusts nor acknowledge that as a director he would have duties to the companies. In response on behalf of KJN it was submitted that it would not be unusual to not be able to name the extensive list of beneficiaries of a trust and that he only indicated his honest answer, that he had not considered his duties as a director. KJN runs businesses through various structures all of which he controls. I am not surprised at his responses to those questions and do not consider them germane to the issues before the Tribunal. KJN also had a memory lapse in regard to an affidavit he executed in respect of a challenge his son made to his late wife KR’s will, and stated that he had not challenged her will. He was not a party to the challenge, and he had honestly forgotten the affidavit. I do not consider an isolated memory lapse goes to capacity.

43. [43]
    See also at [184], where, with regard to a question asked of KJN in relation to directorships, the Tribunal Member states: 

I was impressed that he had thought through that his attorneys would need to be appointed in those roles to control the companies as they could do this as his attorneys.

44. [44]
    Accordingly, it is evident that the Tribunal Member did weigh and discuss the medical evidence, addressed the concerns raised by the appellant at the Tribunal Hearing and ‘gave independent consideration to the relevant issues’: see Porter at [36]. The principles in relation to capacity are well established. The Tribunal Member in the present case had the benefit of the written submissions of counsel, as well as the medical evidence. 
45. [45]
    The second ground of appeal is rejected.

Ground 3

46. [46]
    Ground 3 of the appeal is that the Tribunal at first instance erred in failing to set aside the EPA on the ground that it was not duly executed. A failure to take relevant considerations into account involves a question of law.
47. [47]
    The issue in relation to due execution is whether the printed EPA of 12 January 2021 was in fact witnessed by Ms C. At the hearing she gave evidence that she recalled having witnessed a handwritten and not a printed document.
48. [48]
    An initial difficulty with this ground of appeal is that in the reasons for the decision it is stated that it was agreed by counsel that if the ultimate finding of the Tribunal was that KJN had capacity, then all of the applications should be dismissed.^[25] That is borne out by the transcript of the proceedings.^[26] On that basis, the application as to the validity of the EPA was dismissed. The Tribunal Member noted, at [185], that given the finding of capacity, in any event KJN could make a new power of attorney.

49. [49]
    In any event, the issue of due execution of the EPA was discussed by the Tribunal Member, at [28] of the reasons:

The witness to the EPA, Ms C, gave evidence at the hearing. While she did not provide an affidavit, her notes from the EPA signing interview and an email were filed by KJN. Ms C had a good recollection of KJN’s attendance to have his EPA witnessed. However, there was a difficulty in that when presented with the typewritten EPA document she could not identify it as the one she witnessed. She was shown the handwritten version and she said that this was the one she had seen on the day. She did however confirm that the signature and stamp of the witness on the copy of the typed EPA she was shown were hers.^[27]

50. [50]
    It is also evident from the transcript of the proceedings that both a handwritten document and a printed document were shown to the witness and that her signature appeared on the typed version and not on the handwritten one.^[28] Despite her recollection as to which version she recalled signing, she proceeded to identify the signature and stamp on the typed document as hers. She also stated that KJN signed the document in her presence.^[29] 
51. [51]
    On that basis, it was open to the Tribunal Member to find that the signature on the printed version of the EPA was that of Ms C and that the EPA was duly executed.
52. [52]
    Ground 3 of the appeal is rejected.

Ground 4

53. [53]
    Ground 4 of the appeal is that the Tribunal erred in concluding that KJN had capacity. It is not submitted that there was no evidence to support that conclusion. Rather, the submission on this ground goes to the question of weight that should have been assigned to particular evidence and, accordingly, raises a question of fact or mixed law and fact. 
54. [54]
    By s 142(3)(b) of the QCAT Act, leave is required for an appeal on a question of fact or of mixed law and fact. Generally, leave will be granted only where there is a reasonably arguable case of error in the primary decision, where there is a reasonable prospect the appellant will obtain substantive relief, where substantial injustice was caused by the error, or where there is a question of general importance for which a decision of the appeal tribunal would be to the public advantage. ^[30]
55. [55]
    In essence, the submissions go to why the evidence of Dr DH should be preferred over that of Prof M and Dr Z. In weighing the oral and written evidence, the Tribunal Member had the benefit of seeing and hearing the witnesses. KJN also gave oral evidence, which could be weighed and assessed.

56. [56]
    Both the medical evidence and the evidence of KJN is discussed above in relation to ground 2 of the appeal. For the reasons given under that ground, there is no reasonably arguable case of error and there is no question of general importance for which a decision of the Appeal Tribunal would be to the public advantage. 
57. [57]
    Leave to appeal in relation to ground 4 of the appeal is refused. The appeal is otherwise dismissed.