Rickleman v Public Trustee
[2005] QSC 336
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- Unreported Judgment
- Rickleman v Public Trustee[2005] QSC 336
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Rickleman v Public Trustee[2005] QSC 336
Rickleman v Public Trustee[2005] QSC 336
SUPREME COURT OF QUEENSLAND
CITATION: | Rickleman v Public Trustee & Ors [2005] QSC 336 |
PARTIES: | ELIZABETH JANE RICKLEMAN v PUBLIC TRUSTEE OF QUEENSLAND and PAULA SCULLY, ADULT GUARDIAN and GEOFFREY JAMES BIRD |
FILE NO: | BS11141 of 2004 |
DIVISION: | Trial Division |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Supreme Court, Brisbane |
DELIVERED ON: | 18 November 2005 |
DELIVERED AT: | Supreme Court, Brisbane |
HEARING DATE: | 31 August 2005 |
JUDGE: | Douglas J |
ORDER: | Appeal dismissed |
CATCHWORDS: | ADMINISTRATIVE LAW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where appellant is an adult to whom a guardianship order applies – where appellant’s guardian is the second respondent – where the administration of the appellant’s financial affairs is entrusted to the first respondent – where the appellant purported to appoint the third respondent her attorney pursuant to an enduring power of attorney – where appellant applied to the Guardianship and Administration Tribunal asserting that she did not have impaired capacity and seeking the termination of the appointments of the first and second respondents – where appellant is appealing the decision of the Tribunal – where appellant alleged that the Tribunal did not give adequate notice that it would consider the issue of the appellant’s capacity – whether the procedure adopted by the Tribunal was fair ADMINISTRATIVE LAW – GROUNDS OF REVIEW – PROCEDURAL FAIRNESS – where third respondent sought to appear as attorney for the appellant in front of the Tribunal – where the Tribunal declined to join third respondent – where Tribunal made a confidentiality order that prevented the third respondent attending the hearing – where written submissions of the third respondent were considered by the Tribunal – whether the procedure adopted by the Tribunal was fair ADMINISTRATIVE LAW – GROUNDS OF REVIEW – ERROR OF LAW – where undue influence was cited by the Tribunal as a reason for not allowing the third respondent to appear – where the appellant argued that the Tribunal had misinterpreted the term – whether the Tribunal misinterpreted the term “undue influence” ADMINISTRATIVE LAW – GROUNDS OF REVIEW – ERROR OF LAW – where appellant contends that the Tribunal erred in believing that in order to prevent an attorney appearing it had to appoint a guardian – whether the Tribunal erred in law by not allowing the third respondent to appear as attorney for the applicant ADMINISTRATIVE LAW – GROUNDS OF REVIEW – ERROR OF LAW – where appellant argued that the decision of the Tribunal was so unreasonable that no reasonable Tribunal acting within jurisdiction and according to law would have come to such a conclusion – whether the decision of the Tribunal was so unreasonable Guardianship and Administration Act 2000 (Qld), s 12, s 31, s 31(2), s 80, s 84(2), s 109(2), s 109(2)(a), s 118(1), s 119, s 146, s 164, s 199 Powers of Attorney Act 1998 (Qld), s 41, s 42, s 44(8), s 113(2) Lohe v Bird [2004] QSC 023, cited Minister for Immigration v Ushetu (1999) 197 CLR 611, cited |
COUNSEL: | The applicant appeared on her own behalf R Fryberg for the first respondent S Hamlyn-Harris for the second respondent The third respondent appeared on his own behalf |
SOLICITORS: | The applicant appeared on her own behalf Official Solicitor for the Public Trustee for the first respondent Office of the Adult Guardian for the second respondent The third respondent appeared on his own behalf |
- DOUGLAS J: The appellant, Ms Rickleman, is an adult to whom a guardianship order applies. Her guardian is the second respondent, the adult guardian, appointed pursuant to s 199 of the Guardianship and Administration Act 2000. The administration of her financial matters is entrusted to the first respondent, the Public Trustee of Queensland. The appellant has also purported to appoint the third respondent, Geoffrey James Bird, as her attorney pursuant to an enduring power of attorney signed by her on 28 September 2004 but apparently “accepted” by Mr Bird four days earlier on 24 September 2004.
Background facts
- On 27 September 2004 Ms Rickleman signed an application to the Guardianship and Administration Tribunal asserting that she did not have impaired capacity and seeking the cancellation of the appointments of the Adult Guardian and the Public Trustee. At that stage she said that she intended to make an enduring power of attorney for financial matters in favour of a lady called Moira MacLean.
- Her application for the review of the appointments of the Adult Guardian and the Public Trustee was heard by the tribunal on 9 December 2004. It had invited the appellant to the hearing by its letter of 23 November 2004 which indicated the active parties who were required to attend. They were the appellant, the Adult Guardian and the Public Trustee. They did not include Mr Bird.
- By its reasons dated 18 January 2005 the tribunal changed the guardianship order made by it previously to appoint the Adult Guardian as her guardian for a period of five years instead of the previous two years for the following personal matters only:-
“(a)legal matters not relating to the adult’s financial or property matters;
(b)to make decisions about the issuing or use of a passport, and overseas travel.”
- It also noted that the appellant had impaired capacity for all personal matters and continued the appointment of the Public Trustee as her administrator for all financial matters.
- It had received as part of the documentation available at the hearing a copy of an Advance Health Directive dated 24 September 2004 which included the enduring power of attorney to which I have already referred. The tribunal decided therefore to initiate its own application in relation to “a declaration of capacity”, namely whether Ms Rickleman had the capacity to execute the Advance Health Directive and the enduring power of attorney. It found that she did not have capacity to execute either document. The Tribunal also found that the purported enduring power of attorney did not comply with the requirements of the Act in that Mr Bird signed an acceptance of it before its creation, leading to the conclusion that the document as it stood had no valid acceptance by an attorney or, in other words, there was no attorney because none had accepted the document after its execution.
- It was able to reach this decision because of its concurrent jurisdiction with the Supreme Court in respect of enduring documents and attorneys under enduring documents pursuant to s 84(2) of the Guardianship and Administration Act, coupled with the power to declare a document invalid if it did not comply with the requirements of the Powers of Attorney Act 1998 provided by s 113(2) of that Act. Section 44(8) of the Powers of Attorney Act provides that an enduring document is effective in relation to an attorney only if the attorney has accepted the appointment by signing the enduring document. The document accepted by Mr Bird was not, at the time he signed the acceptance, an enduring power of attorney as it was not then signed by the donor of that power.
- The Advance Health Directive for the appellant dated 24 September 2004 was also declared invalid under s 113(2) of the Powers of Attorney Act.
- Mr Bird, claiming to be the appellant’s health and personal attorney because of the enduring power of attorney and Advance Health Directive applied to be joined as a party before the tribunal. His application was refused and a direction was made that he not be present at the hearing pursuant to a confidentiality order under s 109(2)(a) of the Guardianship and Administration Act. This was done on the grounds that Mr Bird had been declared a vexatious litigant in this Court, was likely to disrupt the hearing, exert undue influence on the appellant, influence how she answered questions from the tribunal and introduce irrelevant material.
- The tribunal, in conducting its hearing in relation to the appellant’s capacity exercised a power given to it by s 146 of the Guardianship and Administration Act. After examining the evidence it relied on, both documentary and oral, including written submissions from Mr Bird, the tribunal made the following findings of fact:-
“(a)Ms Rickleman has been the subject of two previous hearings of the Guardianship and Administration Tribunal in which guardianship and administration appointments were made on the basis that she had impaired capacity for decision making and that there was a need to appoint both a guardian and an administrator.
(b)Mr Bird continues to be strongly involved in Ms Rickleman’s life.
(c)there is history of Mr Bird strongly influencing Ms Rickleman.
(d)Ms Rickleman is unable to comprehend complex documents.
(e)the Advance Health Directive presented to Dr Ebert had been completed prior to arrival at his surgery with the exception of the doctor’s certificate.
(f)the Enduring Power of Attorney that was drawn up under the Advance Health Directive was witnessed by Mr Cameron Hughes a solicitor. This document was pre prepared and no appointment was made with Mr Hughes for its execution as Mr Bird and Ms Rickleman attended “off the street”. Mr Hughes did not fully test the adult’s understanding of the document.
(g)Mr Bird continues to hold property that belongs to Ms Rickleman and has not provided the Public Trustee with evidence of Ms Rickleman’s indebtedness to him in relation to him holding the furniture and effects.
(h)Two weeks ago Ms Rickleman signed a document for Mr Bird that she did not understand.
(i)Ms Rickleman executed an Enduring Power of Attorney on 28 September and an Advance Health Directive on 24 September 2004. The Enduring Power of Attorney acceptance was signed by Mr Bird four (4) days prior to its execution.
(j)the adult has not had a psychiatric appointment for four (4) years, despite having a long standing psychiatric illness.
(k)The Public Trustee of Queensland and the Adult Guardian had acted competently in decision making for the adult.”
- It concluded that the appellant was not making decisions freely and voluntarily and, as well as finding that she did not have the capacity to execute either the Advance Health Directive or the enduring power of attorney, also found that there was a continuing need for the appointment of the Public Trustee because of a dispute with Mr Bird in respect of her property and because of Mr Bird’s propensity to bring legal action against the Public Trustee. Similarly the tribunal took the view that there was a continuing need for a guardianship appointment and that the Adult Guardian continued to be competent.
- The appeal to this Court is brought pursuant to s 80O and s 164 of the Guardianship and Administration Act. It is confined to questions of law unless the Court’s leave is sought for an appeal other than on a question of law. That leave was not sought and the grounds of appeal pursued in the notice of appeal were:
“(a) The tribunal made an error of law, in that a breach of the rules of natural justice occurred, through the tribunal neglecting to hear from my attorney before making its decision.
(b)The tribunal made an error of law, in that the tribunal, in looking at whether my Advance Health Directive had been brought about by undue influence, thought the term ‘undue influence’ meant a lack of capacity, when it meant conduct on the part of others that would lead to me agreeing to something that was not in my best interests.
(c)The tribunal made an error of law in that it thought, if it wished to prevent an attorney from acting for a principal, it had to appoint a guardian in place of the attorney, when it could have instead restrained the attorney from acting, or appointed a substitute attorney.
(d)The tribunal made an error of law in that the decision is so unreasonable that no reasonable persons could possibly have made it.”
- An application for leave to amend was made in advance of the hearing before me and abandoned. The respondents did not object, however, to a further ground of appeal being argued, namely that the appellant was not given proper notice of the fact that the tribunal would consider the issue of the appellant’s capacity.
- It is convenient to deal with that issue first. I shall then consider the other grounds of appeal set out above.
Notice that the tribunal would consider the issue of capacity
- The hearing was instituted by the appellant’s own application, which contained the assertion that she did not have impaired capacity and sought to set aside the appointments of the Adult Guardian and the Public Trustee. Those appointments had been made on 11 March 2003 by the tribunal because of Ms Rickleman’s long history of psychiatric disorder.
- She was notified of the hearing by the tribunal’s letter dated 23 November 2004. That letter seems to me to have been sufficient notice of the hearing as required by s 118(1) of the Guardianship and Administration Act.
- In the circumstances it does not seem to me to have been necessary for that notice to have spelt out what was in issue in the hearing. That was set out in Ms Rickleman’s own application. It is also significant that when the tribunal conducts a review of an appointment of a guardian or administrator for an adult under s 31 of the Guardianship and Administration Act it must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made; see s 31(2). As Mr Hamlyn-Harris for the Public Trustee submitted, that required the tribunal to consider the requirements of s 12 of the Guardianship and Administration Act, which sets out the circumstances in which a tribunal may appoint a guardian or an administrator if it is satisfied, amongst other things, that the adult has impaired capacity for the matter the subject of the appointment.
- He also drew my attention to ss 41 and 42 of the Powers of Attorney Act which set out the circumstances in which enduring powers of attorney and Advance Health Directives may be made. Those requirements are expressed in terms cognate with the requirement of capacity, namely that the maker of the document understands its nature and effect.
- In those circumstances it seems to me that the procedure adopted by the tribunal in this respect was fair. It notified Ms Rickleman of the hearing, which, because of the nature of the application made by her, raised the issue of her capacity as one that the tribunal had to consider. It was always a live issue whether raised by the tribunal itself or because of the nature of the application by Ms Rickleman.
Failure of the tribunal to hear from Mr Bird
- The tribunal, as I have said, declined to make an order joining Mr Bird as an active party and made a confidentiality order before the hearing that he not be present at the hearing for reasons I have outlined.
- Its power to give directions about the persons who may or may not be present is contained in s 109(2) of the Guardianship and Administration Act, which applies when the tribunal is satisfied it is desirable to do so “because of the confidential nature of particular information or matter or for another reason”. That power seems to me to be sufficient to allow the tribunal to make the order it did even if Mr Bird did not need the leave of the Supreme Court, because of his status as a vexatious litigant, to participate in the proceedings before the tribunal. The other matters referred to in para [10] of the tribunal’s reasons for its concern about Mr Bird’s presence are relevant to its decision to exclude him and are similar to the issues that concerned McMurdo J in Lohe v Bird [2004] QSC 023 when his Honour declared Mr Bird a vexatious litigant.
- Mr Bird’s purported appointment as Ms Rickleman’s attorney under the enduring power of attorney was not valid for the reasons I have expressed earlier so he had no right to be considered as an active party for the proceeding under s 119 of the Guardianship and Administration Act.
- It is also significant that Mr Bird put submissions before the tribunal, which considered them; see paras [21](h) and [40] of the tribunal’s decision. In the circumstances it is my view there has been no breach of the rules of procedural fairness arising from the tribunal’s decision, in the exercise of its statutory powers, that Mr Bird was not to be present at the hearing.
Did the tribunal misinterpret the term “undue influence”?
- This ground of appeal appears to challenge the tribunal’s finding that the appellant lacked the necessary capacity to execute the Advance Health Directive and enduring power of attorney for, amongst other things, the alleged exercise of undue influence by Mr Bird. The references to the words “undue influence” in the reasons of the tribunal at paras [10], [31], [39], [55] and [60] make it clear that the tribunal understood and used the phrase properly, in the sense of unconscientious use by one person of power possessed by him over another in order to induce the other to enter into a transaction. The finding of lack of capacity by the tribunal was not based solely on the undue influence exercised by Mr Bird in any event and is a factual finding not able to be challenged in this appeal.
Need for the appointment of a guardian
- This ground of appeal asserts that the tribunal erred in believing that in order to prevent an attorney acting it had to appoint a guardian in place of the attorney. As Mr Fryberg for the Adult Guardian submitted, it is misconceived because the tribunal found that the enduring power of attorney and Advance Health Directive were invalid, a decision that has not been challenged. As he further submitted, there being no valid appointment of an attorney, there was no attorney to restrain and, I might add, no occasion to appoint a substitute attorney when it was open to continue the appointment of the Adult Guardian for the reasons advanced at paras [65] and [66] of the tribunal’s decision.
Wednesbury unreasonableness
- This ground of appeal or error of law is not available on the facts in this case. The tribunal’s decision was not so unreasonable that “no reasonable Tribunal acting within jurisdiction and according to law, would have come to such a conclusion”; Minister for Immigration v Ushetu (1999) 197 CLR 611, 626 [39].
Order
- The appeal is dismissed. I shall hear the parties further as to costs.