Slinko v Guardianship And Administration Tribunal
[2006] QSC 39
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- Unreported Judgment
- Slinko v Guardianship And Administration Tribunal[2006] QSC 39
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Slinko v Guardianship And Administration Tribunal[2006] QSC 39
Reported at [2006] 2 Qd R 279
Slinko v Guardianship And Administration Tribunal[2006] QSC 39
Reported at [2006] 2 Qd R 279
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO/S: | |
Trial Division | |
PROCEEDING: | Application for an extension of time within which to seek leave to appeal |
ORIGINATING COURT: | |
DELIVERED ON: | 9 March 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 6 March 2006 |
JUDGE: | de Jersey CJ |
ORDER: | Applications filed on 24 January 2006 and 20 February 2006 are refused, and the notice of appeal filed on 2 December 2005 is struck out. No order as to costs. |
CATCHWORDS: | ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS – IN GENERAL – proceeding for damages for negligence in regard of personal injuries – applicant’s solicitors raise query as to her capacity to instruct them – GAAT declares a lack of capacity – purported appeal on grounds not solely legal – application for extension of time within which to seek requisite leave – disposition of costs where application fails Guardianship and Administration Act 2000 (Qld), s 164, s 165 |
COUNSEL: | The applicant appeared on her own behalf No appearance for the first respondent L J Randell (sol) for the second respondent |
SOLICITORS: | The applicant appeared on her own behalf No appearance for the first respondent K M Splatt & Associates for the second respondent |
[1] de JERSEY CJ: On 18 May 2005, the first respondent, the Guardianship and Administration Tribunal, declared that the applicant does not have capacity to give instructions to her solicitors in relation to the conduct of a claim for damages for personal injuries arising out of a motor vehicle accident which occurred on 3 May 2000, and a claim for damages for personal injuries sustained because of medical treatment on 23 January 2002 and subsequent treatment at the Brisbane Dental Hospital. A purported appeal against that declaration, and related applications, are the subject of the present proceeding. The Tribunal gave reasons for that decision on 24 June 2005.
[2] On 5 September 2005, the Tribunal appointed the Public Trustee of Queensland as administrator for the applicant for certain “financial matters”: all legal matters in relation to the two damages claims, and all financial matters in relation to the management of any compensation payable in consequence of them. The Tribunal gave reasons for that determination on 31 October 2005.
[3] The declaration as to the applicant’s capacity was made on an application instituted by the second respondent, her solicitors, on the basis of their concern about the applicant’s capacity to give instructions. The applicant had suffered brain damage as a result of the head injuries sustained in the motor vehicle accident in the year 2000.
[4] As indicated, the decision against which the applicant has purported to appeal was given on 18 May 2005, and the reasons for that decision were given on 24 June 2005. Any appeal was to be filed in the Registry of the Supreme Court by 22 July 2005 (s 164A(a) Guardianship and Administration Act 2000 (Qld)).
Grounds of appeal
[5] The applicant filed a notice of appeal on 2 December 2005. The grounds set out in that notice are (a) that the Tribunal was biased towards the second respondent K M Splatt and Associates; (b) that the Tribunal disregarded “verifiable evidence” supporting the applicant’s position; (c) that delay on the part of the Tribunal had been detrimental to the progressing of her legal claims; and (d) that the President of the Tribunal had acknowledged, at the hearing on 5 September 2005, that she was “unable to refer to verifiable evidence and that the decision was based on what [the applicant’s] solicitor had said”.
[6] Ground (a) has a legal complexion. Grounds (b) and (d) are factual. Ground (c) is not tenable, although at the hearing, the applicant accepted her contention was her condition had been exaggerated to distract attention from the real problem, which was dilatoriness and inadequate planning by the second respondent, but there is no evidence that is what occurred.
[7] As to (a) a perusal of the Tribunal’s reasons discloses no ground for thinking there was actual or ostensible bias. The Tribunal appears to have carried out its task dispassionately. While its decision favourable to the second respondent is disquieting to the applicant, she must demonstrate more than that, obviously enough, to found even a query whether a reasonable, detached observer could apprehend the Tribunal lacked independence and objectivity. She has not done so.
[8] Because the grounds of appeal are not confined to a question of law, leave is required (s 164(2)). The applicant has filed an application for an extension of time within which to seek leave to appeal, and seeks leave.
Leave to appeal on questions of fact
[9] I offer some observations on the court’s approach to an application for leave where, as here, the challenge is solely or substantially factual.
[10] The requirement under s 164(2) for a grant of leave means the legislature did not intend there by re-hearings in the Supreme Court, on the facts, for the asking.
[11] To warrant a grant a leave to appeal in relation to factual findings of the Tribunal, an applicant must in my view demonstrate a seriously arguable case of error in a finding central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand.
[12] It goes without saying that it would be plainly insufficient for an applicant simply to contend that a differently constituted Tribunal could have taken a different view. The suggested error must rest in the adoption of a factual position beyond the realms of reasonableness, or one which is clearly mistaken.
[13] Ordinarily for a grant of leave, the seriously arguable obtuseness or wrong-headedness of the factual finding will be plainly and readily apparent: it should not be necessary to embark on a comprehensive re-examination of the evidence to identify the error. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility.
[14] Accordingly, an applicant for leave to appeal on the facts should with precision identify the suggested error. As necessary, the court will assess the significance of the finding to the overall conclusion, and if that is substantial, refer to supporting (and any compellingly contrary) evidence.
[15] It should usually be possible to reach a view whether error is seriously arguable in a relatively broad way, without the need for an extensive journey into the proceedings before the Tribunal.
[16] On the reasonable assumption that the Tribunal carefully and conscientiously goes about its task, it follows that a grant of leave to appeal on the facts should be a rarity.
Extension of time to apply for leave
[17] The applicant’s appeal was filed four months 10 days out of time. In her affidavit filed 24 January 2006, the applicant attributed this to “recurring bouts of shingles which [have] contributed to a sense of disempowerment”. The second respondent points to a lack of supporting medical evidence. The applicant says she treated the condition homeopathically. Regardless of the sufficiency of this explanation for the delay, it is convenient to pass to the proposed factual challenges to the Tribunal’s decision.
Bases of challenge to determination
[18] The applicant’s affidavit filed 24 January 2006 discloses these particular complaints:
(a) that the Tribunal “disregarded” the opinion of Dr Lucille Douglas, expressed in her report of 21 March 2003, and accepted an opinion expressed by Ms Debbie Anderson two years earlier;
(b) that the Tribunal relied on Dr Mulholland’s view expressed in his report of 22 February 2005, even though it was “fatuous, based on a five minute 17 second telephone conversation”;
(c) that the Tribunal should have accepted evidence that the second respondent was retained to pursue a medical negligence claim on the applicant’s behalf.
The affidavit contains a substantial amount of other material, some of it argumentative in character.
[19] As to (a), the Tribunal’s reasons disclose its acceptance of the view of Ms Anderson, a clinical neuro-psychologist, a course the Tribunal was entitled to adopt. The psychologist Dr Douglas’s opinion, it may be noted, was that the applicant displays “ongoing subtle cognitive dysfunction”, which actually tends to support the Tribunal’s conclusion, and resembles Ms Anderson’s assessment of “subtle cognitive dysfunction”. In her report, Dr Douglas actually expresses concurrence with Ms Anderson (p 11). There is no basis for thinking that the Tribunal ignored or disregarded Dr Douglas’s views simply because the Tribunal has not referred to them expressly in its reasons. The Tribunal was confronted with a mass of material, and it was reasonable that reference in the reasons be confined to that bearing directly on the Tribunal’s conclusion, as confirmed in para 12 of its reasons.
[20] As to (b), the applicant’s criticism ignores the circumstance that Dr Mulholland had previously examined the applicant (over a period of more than three hours) and had provided previous reports in relation to her condition. He came to the matter in February 2005 from a position of prior familiarity with the applicant’s condition.
[21] As to (c), there was compelling evidence that the second respondent was not retained in respect of that claim until a client agreement was signed on 2 February 2005. The applicant refers to the second respondent’s obtaining specialist reports on the relationship between the dental problems and the accident and the treatment, but that was apparently to determine whether there was a worthwhile claim for which the second respondent could responsibly accept a retainer.
[22] In her written material, the applicant contends she was not given a reasonable opportunity to be heard, by the Tribunal, and that it paid insufficient regard to the statutory criteria in determining the question of capacity. Neither of these complaints has substance. Paragraphs 29 to 34 of the reasons suggest the applicant was given a comprehensive opportunity to challenge the second respondent’s evidence and develop her own position.
[23] The applicant has not demonstrated that leave to appeal should be granted.
[24] The applications filed by the applicant on 24 January 2006 and 20 February 2006 are refused, and the notice of appeal filed on 2 December 2005 is struck out.
Costs
[25] The first respondent, the Guardianship and Administration Tribunal, played no part at this hearing and filed no affidavit material. The second respondent says that “regrettably and unfortunately” it must seek an order for costs against the applicant, in the event that the application fails.
[26] Section 165(1) provides that each party is to bear his or her or its own costs of an appeal. Sub-section (2) provides, however, that the court may order one party to pay costs to another “if the court considers – (a) the appeal was frivolous or vexatious;…”.
[27] In support of its application for costs, the second respondent made the following submissions:
“24.The entirety of the material provided to the Guardianship and Administration Tribunal accurately outlines the history of both claims.
- The motor vehicle case ought to have been a straight forward matter but as a result of the applicant’s condition and dealing with her constant complaints and concerns the file is now enormous. Probably around a third of the file is actually party/party costs, the remainder is solicitor own client costs which will be enormous and largely unrecoverable given the likely quantum of the claim.
- There has been a long history of complaints from the Applicant with the Firm’s management of the file and as a result the file was provided freely to the Queensland Law Society and examined at length with the result the Law Society was satisfied the claim had been handled diligently. The file has also been reviewed by independent solicitors who have also confirmed all of the Applicants concerns had been addressed.
- The Applicant’s concern that all factors of the claim will not be considered is unfounded. The Firm has acquired multiple medical reports and left no stone unturned in covering all aspects of her claim.
- Settlement negotiations are continuing with the Defendant in relation to the Motor Vehicle Accident. As the Applicant lacks legal capacity and pursuant to the orders of the Guardianship and Administration Tribunal the firm is currently receiving instructions from the Public Trustee in relation to any offers of settlement made or to be made. Counsel has provided an advice on quantum and liability and hopefully a resolution to the motor vehicle claim can be reached shortly. As a further protection the Court is to sanction any settlement of the claims. The Applicant has been advised of this on several occasions.
- The current arrangements fully protect the Applicant’s interests and all parties involved acting in Applicant’s best interests.
- Due to extensive solicitor own client costs it is now extremely onerous for the firm to continue to act and in any event solicitor own client costs will have to be very significantly reduced.
- The Applicant has failed to provide any clear reasons in fact or law or any further medical or other evidence as to why the decisions of the Guardianship and Administration Tribunal should be overturned and the Appeal should be dismissed accordingly.
- This proceeding would appear to be another example of the Applicant’s inability to allow her matters to progress.
- It is the view of the Second Respondent that the decision of the GAAT be upheld so that prompt resolution of the Applicant’s legal claims can take place and that the GAAT orders remaining in place is only to the benefit of the applicant.
- Regrettably and unfortunately we must seek costs of and incidental to this Appeal from the Applicant.”
[28] Having been given a hearing by the Tribunal, which then delivered comprehensive and helpfully explanatory reasons for its decision, the applicant rejected that decision, and after considerable delay, sought to mount a challenge which plainly could not warrant a grant of leave. Here the proposed grounds of appeal come close to warranting the description “frivolous or vexatious”, meaning paltry, not warranting serious attention, manifestly futile. But I am not prepared to say they undoubtedly fall into that category, and I note that the second respondent’s relevant costs should not in any event be substantial.
Orders
[29] The applications filed by the applicant on 24 January 2006 and 20 February 2006 are refused, and the notice of appeal filed on 2 December 2005 is struck out.
[30] No order as to costs.