FL [2023] QCATA 1

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: FL [2023] QCATA 1 PARTIES: In applications about matters concerning APPLICATION NO/S: APL362-21 ORIGINATING APPLICATION NO/S: GAA4749-21; GAA4750-21; GAA9276-21; GAA9289-21; GAA9290-21; GAA13052-21 MATTER TYPE: Appeals DELIVERED ON: 11 January 2023 HEARING DATE: 27 October 2022 HEARD AT: Brisbane DECISION OF: A/Senior Member Browne, Presiding Member Kanowski ORDERS: The application for leave to appeal is refused. The application for leave to rely upon fresh evidence is refused. CATCHWORDS: APPEAL – APPLICATION FOR LEAVE TO APPEAL – HEALTH LAW – GUARDIANSHIP MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – where the Tribunal reviewed the appointment of a guardian and administrator – where the Tribunal made findings about the adult’s capacity to make decisions about his personal and financial matters – where the adult’s partner made an application seeking appointment as a guardian and administrator – where the Tribunal accepted information that the adult was vulnerable – whether error in the Tribunal’s decision to continue the appointment of a guardian and administrator – whether error in the Tribunal’s finding that the adult has impaired capacity – whether error in the Tribunal’s decision to appoint substituted decision makers – whether leave to appeal should be granted APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – GENERALLY – where appellant seeks leave to rely upon additional evidence – whether fresh evidence or new evidence – whether party can lead additional evidence at appeal that could have been led at initial hearing -- 1 of 12 -- 2 Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11, s 11B, s 12, s 31, s 146 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b), s 147(2) Briginshaw v Briginshaw (1938) 60 CLR 336 Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, [35] CDJ v VAJ (1998) 197 CLR 172 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Pickering v McArthur [2005] QCA 294, [3] (Kean JA) QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 APPEARANCES & REPRESENTATION: Adult (FL): Self-represented Applicant (RM): Represented by Healy, M of Healy Law Public Guardian (current guardian): Represented by Kellie, K Public Trustee (current administrator): Represented by Thirumoorthi, N REASONS FOR DECISION [1] RM applies for leave to appeal a published decision of the Tribunal exercising its powers under the Guardianship and Administration Act 2000 (Qld) (the GA Act). Following an oral hearing, the Tribunal below made orders declaring an enduring power of attorney (EPOA) made by FL to be invalid, appointing the Public Guardian to make decisions about some of FL’s personal matters, and appointing the Public Trustee of Queensland (PTQ) to make decisions about FL’s financial matters.1 [2] In attendance at the oral hearing before the Tribunal below was, amongst others, FL who was assisted by an interpreter (French), FL’s partner, RM and FL’s sister, CC. [3] The Tribunal below made findings about FL’s capacity to make decisions about his personal and financial matters, as it was required to do for the purposes of the GA Act. It is clear from the Tribunal’s reasons and accepted as much by RM in applying for leave to appeal, that the Tribunal below relied on written information in the form of reports and a certificate prepared by FL’s health professionals and other information given orally by relevant persons in the oral hearing, to make findings about FL’s capacity.2 1 Decision dated 11 November 2021 and reasons published in RB [2021] QCAT 396. 2 ‘Capacity’ is defined under Schedule 4 of the GA Act. -- 2 of 12 -- 3 [4] In support of the application for leave to appeal or appeal, RM argues that FL has capacity to make all, or at least most of the decisions in relation to the matters in which the appointments have been made and as such the Tribunal’s orders made below ought to be revoked.3 [5] In the alternative, RM says that if it is determined by the Appeal Tribunal that an appointment of a guardian and/or administrator is necessary, then the appropriate person for that appointment is RM, as the spouse of FL.4 [6] It is important to highlight at this point that RM does not cavil with the Tribunal’s decision below to declare the EPOA invalid. RM identifies a number of errors that she says can be found in the Tribunal’s findings, process and its ultimate decision to appoint the Public Guardian and the PTQ.5 The grounds of appeal are identified by RM as follows: The Tribunal erred in its determination that [FL] does not have capacity for a ‘broader’ scope of matters. No current medical opinion, unsound reasons such as [FL] not communicating with the member. [FL] has a hearing impairment, did not have a functioning hearing aid and looked to his defacto Partner [RM] for assistance in determining what the member was asking. The Tribunal erred in appointing substituted decision makers for [FL] in respect of matters in which [FL] has capacity to make his own decisions, including: where he lives, with whom he lives, with whom he may have contact, and the provisions of services for him. If [FL] lacked capacity for a particular matter, then the substitute decision maker ought to have been his Defacto partner [RM] who was best positioned to be responsive to [FL’s] needs and a more appropriate Guardian and Administrator. The Tribunal erred in its determination that [FL] was vulnerable, experiences degrading treatment by the Applicant [RM] and that the Applicant was conflicted.6 [7] RM relies on her written submissions filed in support of the application for leave to appeal or appeal and oral submissions made by her legal representative, Mr Healy, in the oral hearing before this Appeal Tribunal. There are many contentions raised by RM that we consider can be conveniently dealt with under three discrete grounds of appeal: Ground 1: the Tribunal erred in finding that FL continues to have impaired capacity for his personal and financial matters. Ground 2: the Tribunal erred in its decision to appoint substituted decision makers for FL. Ground 3: the Tribunal ought to have appointed RM as FL’s substituted decision-maker. [8] We accept, as submitted by Mr Healy in the oral hearing before this Appeal Tribunal, that each of the grounds of appeal and supporting contentions raise errors of mixed 3 Application for leave to appeal or appeal filed 13 December 2021 and submissions in support of application filed 15 March 2022. 4 Ibid. 5 Ibid and see submission in reply filed 10 May 2022 and submission in response filed 18 October 2022. 6 Application for leave to appeal or appeal filed 13 December 2021. -- 3 of 12 -- 4 fact and law for which leave to appeal is required.7 The grounds of appeal raise questions about whether it was open to the Tribunal below to make relevant findings based on the evidence before it in order to be satisfied that the relevant provisions of the GA Act and Human Rights Act 2019 (Qld) have been met.8 [9] The GA Act requires that a person or other entity who performs a function or exercises a power under the GA Act apply the general principles.9 Such principles include, amongst other things, the presumption that the adult has capacity for a matter, recognises that the adult has the same human rights and fundamental freedoms, and recognises that the adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life must be recognised and taken into account. Relevantly, an adult must be given the support necessary to enable the adult to communicate the adult’s decisions.10 [10] There are many important provisions contained within the GA Act that we have not separately identified or discussed in addressing the present matter before us and the grounds of appeal that must, however, be considered in a proceeding before the Tribunal. It is important to highlight some of the provisions contained in the GA Act that are relevant to some of the contentions raised in the present matter before us. It is also important to draw attention to s 5 of the GA Act and the requirement that, amongst other things, the capacity of an adult to make decisions may differ according to the types of decisions to be made and the support available from members of the adult’s existing support network. The right of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent. Section 6 of the GA Act provides that the Act seeks to strike a balance between the right of an adult with impaired capacity to the greatest possible degree or autonomy in decision-making and the adult’s right to adequate and appropriate support for decision-making. [11] The GA Act mandates that to hear and decide a matter in a proceeding, the Tribunal must ensure, as far as it considers it practicable, it has all of the relevant information and material before it.11 [12] A critical issue identified by RM in support of the application for leave to appeal is whether the Tribunal below properly discharged its statutory obligations to ensure that it had before it all relevant and current medical evidence and whether the Tribunal below explored reasonable ways of facilitating communication with FL who RM says has difficulty hearing, as discussed in the hearing below. [13] There is also an application for leave to rely upon fresh evidence that was not before the Tribunal below.12 The fresh evidence includes correspondence exchanged between FL’s treating doctor and RM’s legal representative, correspondence exchanged between FL’s treating health professionals and a statutory declaration 7 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 142(3)(b). 8 See Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748, [35]. 9 GA Act, s 11B. 10 Ibid, s 11B(8)(3). 11 Ibid, s 130(1). 12 Application for leave to rely upon fresh evidence filed on 19 May 2022. -- 4 of 12 -- 5 prepared by RM.13 The discretion for the Appeal Tribunal to admit additional evidence in a rehearing is contained in s 147(2) of the QCAT Act. The question of whether to grant leave to rely on evidence that was not before the decision-maker at first instance will involve the exercise of a broad discretion having regard to established principles.14 The usual principles applied in such matters include questions about whether the new evidence could not have been obtained with reasonable diligence at the time of the hearing below. Further, whether had the evidence been given, it would have had an important influence on the outcome although it need not be decisive, and whether the evidence is apparently credible, although not necessarily incontrovertible.15 [14] The orders sought by RM in seeking leave to appeal and in allowing the appeal are that the orders made by the Tribunal on 11 November 2021 concerning the appointments of the Public Guardian and the PTQ be set aside. Further, RM seeks an order by the Appeal Tribunal that a current medical opinion be obtained as to the level of FL’s capacity to make decisions the subject of the orders and, to the extent that FL lacks capacity for his personal and financial matters, that RM be appointed as FL’s guardian and administrator.16 Application for leave to appeal [15] For reasons explained below, we are not satisfied that there is a reasonably arguable case of error in the Tribunal’s decision at first instance. Whether there is a reasonably arguable case of error in the primary decision is one of a number of relevant considerations in determining whether leave to appeal should be granted.17 Although RM’s contentions and grounds of appeal raise important questions about the application of the GA Act and whether certain mandated provisions were applied by the Tribunal in the proceeding below, we are not satisfied that leave is necessary to correct a substantial injustice to FL caused by any alleged error.18 [16] Even if we are wrong as to our consideration of the grounds of appeal and whether RM has demonstrated an error in the proceeding below and the final orders made, RM will have an opportunity to make any further application together with supporting material to the Tribunal because there will shortly be a review of the appointment of a guardian.19 In accordance with usual practice, the review will be conducted by a differently constituted Tribunal. Relevantly, the Tribunal below appointed the Public Guardian as a guardian for FL to make certain decisions about his personal matters to be reviewed in one year. Any new medical evidence and/or any new applications including, for example, an application to review the appointment of an administrator may also be made and considered by the Tribunal in the review hearing. This means that FL and any active party will have an opportunity to present the active party’s case 13 See application for interim order (seeking leave to rely upon fresh evidence) filed 19 May 2022 and attachment to application and see PTQ’s submissions (leave to rely on fresh evidence) filed 24 May 2022, [6] and [7]. 14 Ellis & Anor v Queensland Building Services Authority [2010] QCATA 93. 15 Clarke v Japan Machines (Australia) Pty Ltd [1984] 1 Qd R 404, 408. 16 Application for leave to appeal or appeal filed 13 December 2021. 17 See QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 18 See Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 and Pickering v McArthur [2005] QCA 294, [3] (Kean JA). 19 See s 31 of the GA Act. -- 5 of 12 -- 6 and access before the hearing a document before the Tribunal.20 Further to that, the Tribunal in exercising functions under the GA Act must, amongst other things, 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 family member of the adult’s support network.21 Any application together with supporting material and any further information relating to FL’s capacity to make decisions may be considered by the Tribunal in the review hearing. Ground 1 – is there an error in the Tribunal’s findings about capacity? [17] In addressing Ground 1, RM says the error lies in the Tribunal’s outcome and in the Tribunal’s process in making the determination that FL continues to have impaired capacity for personal, health, lifestyle, accommodation and financial matters.22 [18] RM refers the Appeal Tribunal to s 146 of the GA Act that permits the Tribunal to make a declaration about the capacity of an adult. Section 146(3) of the GA Act requires the Tribunal, in deciding whether an individual is capable of communicating decisions in some way, to investigate the use of all reasonable ways of facilitating communication, including, for example, symbol boards or signing. We are also referred to s 130(1) of the GA Act that, amongst other things, requires the Tribunal to ensure as far as practicable, it has all the relevant information and material before it. [19] In the oral hearing before the Appeal Tribunal, Mr Healy appearing for RM, referred us to paragraphs [37] and [38] of the Tribunal’s reasons and submitted that the Tribunal below was informed in the hearing that FL could communicate effectively. Further, the Public Guardian submitted to the Tribunal below that FL could say with whom he wished to have contact. [20] Mr Healy submitted that the Tribunal below was ‘on notice’ that FL could communicate effectively, and the Tribunal below could have done more to facilitate FL’s communication of his views and wishes. Mr Healy submitted that failure to do so is a failure to comply with the s 146(3) of the GA Act obligation to investigate facilitative communication. [21] To properly consider Ground 1, it is necessary to have regard to the Tribunal’s reasons below to determine what evidence was considered in finding that FL continues to have impaired capacity for his personal and financial matters. [22] Importantly, in the proceeding below, the Tribunal below was reviewing existing appointments of the Public Guardian and the PTQ and had before it applications for the appointment of a guardian and administrator. There was an application filed by FL’s sister, CC, seeking orders that the Public Guardian and the PTQ remain appointed; and an application filed by FL’s spouse, RM, proposing that she be appointed, if necessary, as FL’s guardian and administrator. [23] The GA Act contains specific provisions that must be considered by the Tribunal when reviewing existing appointments of a guardian and/or administrator. Section 31 provides that, amongst other things, the Tribunal may conduct a review of the appointment of a guardian or administrator for an adult in the way it considers appropriate. At the end of the review, the Tribunal must revoke its order making the 20 GA Act, s 103. 21 Ibid, s 81. 22 Reasons, [21] and see submissions in support of application filed 15 March 2022, p 6. -- 6 of 12 -- 7 appointment unless satisfied that it would make an appointment if a new application for an appointment were to be made. However, the Tribunal may make an order removing an appointee, other than the Public Guardian, only if the Tribunal considers the appointee is no longer competent or another person is more appropriate for appointment.23 [24] Section 31 requires the Tribunal to consider the requirements set out under s 12 that must be satisfied before an order appointing a guardian and/or administrator can be made. Relevantly, s 12 requires the Tribunal to, amongst other things, be satisfied that the adult has impaired capacity for the matter. [25] In paragraph [14] of the Tribunal’s reasons, the Member below incorrectly stated that pursuant to s 11(2) of the GA Act the Tribunal is not required to presume the adult has capacity. Despite this error, the Tribunal did discharge its statutory requirement as provided under s 31 and s 12 to consider whether the presumption of capacity is rebutted in reviewing the existing appointments of a guardian and administrator. [26] As can be seen in paragraphs [14] to [21], inclusive, the Tribunal did consider the evidence before it relevant to FL’s capacity and ultimately found that FL has impaired capacity for personal, health, lifestyle, accommodation and financial matters.24 It is also clear from the Tribunal’s reasons that it did consider medical evidence from health professionals prepared in or about 2015 and a more recent medical certificate prepared by FL’s general practitioner about FL’s capacity to make decisions about his personal and financial matters. [27] In paragraphs [15] to [19], inclusive, the Tribunal below refers to the ‘capacity evidence’ including a health professional report dated 12 February 2015 and notes that FL is reported to have a pre-existing mild intellectual disability and, amongst other things, was unable to make decisions freely and voluntarily. The Tribunal refers to an occupational therapy assessment dated 24 March 2015 and notes in paragraph [17] that RB is reported to not be able to make decisions freely and voluntarily. The Tribunal also refers to a report prepared by a specialist geriatrician dated 24 March 2015 and notes that FL is reported to have a diagnosed intellectual impairment and vascular dementia with significant language dysfunction and poor comprehension. In paragraph [18] the Tribunal notes that the specialist geriatrician reported that FL’s disability was likely permanent. [28] In paragraph [19] the Tribunal refers to a medical certificate prepared by FL’s current general practitioner that was filed by RM and says that it indicates FL’s condition has not deteriorated. It is clear that the Tribunal accepts and relies on the medical evidence prepared in or about 2015. In paragraph [20] the Tribunal says that there is no medical evidence to support any significant recovery from the stroke’s impacts and that it is apparent FL continues to have significant language deficits affecting his ability to understand information and to communicate his decisions. [29] The Tribunal below goes on to find that the medical evidence indicates that FL, who had a pre-existing intellectual disability, has suffered a stroke which has significantly impaired his communication and impacts his understanding of the nature and consequences of decisions about his personal and financial matters, and his ability to understand communications and express his views and wishes clearly. In paragraph 23 See s 31(4) and (5) of the GA Act that sets out examples of when an appointee is no longer competent. 24 Reasons, [21]. -- 7 of 12 -- 8 [21] the Tribunal below ultimately finds that FL continues to have impaired capacity for personal, health, lifestyle, accommodation and financial matters. [30] We see no error in the Tribunal’s process and the weighing of the evidence before it to determine that FL continues to have impaired capacity. It is clear from the Tribunal’s reasons that it took into account the evidence before it that included reports prepared in 2015 and a more recent certificate prepared by FL’s current general practitioner. The Tribunal identifies and accepts the opinions expressed by FL’s treating health professionals in the 2015 reports. It was in our view open for the Tribunal to accept the certificate dated 22 July 2021 prepared by FL’s treating general practitioner that certifies that FL’s condition has not deteriorated. It was in our view also open for the Tribunal below to find in paragraph [20] in accepting the 2021 certificate that there is ‘no evidence to support any significant recovery from the stroke’s impacts’. [31] RM submits that the Tribunal should have directed FL to undergo an assessment by a doctor or psychologist.25 However, in our view there was sufficient evidence already before the Tribunal to enable it to make properly-informed findings. [32] RM also submits that the Tribunal should have referred to the statutory definition of capacity, and the Queensland Capacity Assessment Guidelines.26 However, in our view it is apparent from the discussion of the capacity evidence that the Tribunal was well aware of the relevant criteria. There is no obligation upon the Tribunal to refer to the guidelines. The lack of such reference does not mean that the Tribunal failed to adequately consider the question of capacity. RM also contends that a family member or friend, such as a de facto spouse, can, under the guidelines, carry out a capacity assessment.27 If that is correct, it is nonetheless the case that the Tribunal had regard to all relevant evidence including RM’s views about FL’s decision-making capacity.28 [33] RM contends that the Tribunal made incorrect assumptions about FL’s capacity influenced by the way he conducted himself, his impairment, and how he communicates.29 However, it is apparent from the Tribunal’s reasons that, while it took into account FL’s conduct, impairment and communication style, it also had regard to all of the relevant evidence including the observations of health professionals, and of associates of FL such as RM and CC. We do not accept that the Tribunal made incorrect assumptions based on limited factors. [34] The contentions raised by RM about the Tribunal’s alleged failure to explore other methods of communication with FL and the seating of FL in the hearing below are without merit. It is clear from the transcript of the hearing below that the Tribunal made enquiries through the use of an interpreter with FL at various stages during the hearing. The transcript shows that FL responded to the questions asked including indicating that he would like to appoint RM to be his administrator and guardian.30 25 Submissions in support of application filed 15 March 2022, [14]. 26 Ibid. 27 Ibid. 28 See Reasons, [20]. 29 Submissions in support of application filed 15 March 2022, [14]. 30 Transcript, 1-7. -- 8 of 12 -- 9 The Tribunal also had regard to what FL had told others at various times, for example a delegate of the Public Guardian.31 [35] The Tribunal’s reasons note that FL has limited English as well as limited French.32 The Tribunal notes FL’s ‘significant communication impairments’ and draws an inference that the Public Guardian in preparing its report has heavily relied on RM who is the subject of allegations.33 The Tribunal explains its reasoning in paragraph [42] as to why the information conveyed by the Public Guardian is unreliable. The Tribunal refers to FL’s communication impairments, ‘an intellectual disability’ and FL’s limited English or French and says that it places limited value on the report. [36] On a fair reading of the Tribunal’s reasons as a whole, the Tribunal held concerns about FL referring to previous documents on the Tribunal’s file prepared in 2015 and references contained therein to the FL being ‘very vulnerable’.34 The Tribunal’s reasons contain many references to FL’s vulnerability in the context of concerns from ‘several people outside and within FL’s family’.35 [37] It is clear from the Tribunal’s reasons that an independent guardian was necessary. In paragraph [49] the Tribunal refers to concerns about RM who acts as an informal decision maker for FL in all personal decisions other than contact and goes on to say in paragraph [50] that an independent guardian needs to make decisions to ensure that FL’s interests and basic human rights are adequately protected. [38] We see no error in the Tribunal’s findings relevant to the issue of capacity and whether the presumption of capacity has been rebutted. Ground 1 is without merit. Ground 2: is there an error in the Tribunal’s decision to appoint substituted decision makers for FL? [39] In the oral hearing before this Appeal Tribunal, Mr Healy appearing for RM, narrowed the contentions to an error by the Tribunal below in determining that there needed to be an appointment in terms of a guardian. Mr Healy said that there was evidence before the Tribunal below that prior to the hearing there was no need for a decision to be made. Mr Healy refers us to the evidence of the Public Guardian that said it was not required to make decisions for FL during the term of appointment (being reviewed) referring to FL’s accommodation being stable and that FL could decide when he does not want to have contact with people. Further, Mr Healy said that in respect of the appointment of an administrator there were other things that should have been put in place by the Tribunal below. Mr Healy referred to s 5 of the GA Act and the importance of a person’s right to make their own decisions. [40] As discussed above, the Tribunal below had concerns about FL being vulnerable and placed limited weight on the evidential value of the Public Guardian’s report. The Tribunal was not bound to accept the views of any party, including the Public Guardian. As reflected in the Tribunal’s reasons there was evidence of FL’s vulnerability contained in a report from the specialist geriatrician dated 23 March 31 Reasons, [41]. 32 Reasons, [40]. 33 Ibid. 34 Ibid, [45]. 35 Ibid, [45], [47], [48], [52], [54]. -- 9 of 12 -- 10 2015.36 The Tribunal refers to ‘extensive concerns’ about FL’s current living arrangements raised by CC in paragraphs [25] to [28], inclusive. The Tribunal refers to statements from a neighbour of RM about the treatment ‘meted out to [FL] by [RM]’ in the context of RM not being ‘kind’ to FL.37 The Tribunal also refers to a phone call to the registry of the Tribunal on 21 June 2021 that is documented on the file about concerns for FL’s ‘well-being’.38 Similar issues in the context of concerns about FL are highlighted in paragraphs [31], [32] and [34]. [41] The Tribunal below notes in paragraph [48] that RM denies the allegations and refers to RM’s evidence of her ‘good care’ to FL. In our view, it was open for the Tribunal to make relevant findings about FL in the context of the concerns identified, that the Tribunal accepted were concerns, about FL’s vulnerability and on that basis as explained in [48] there is a need for decisions about FL’s personal matters. [42] In relation to the appointment of the PTQ as an administrator, Mr Healy, in the oral hearing before us, submitted that a lot of weight was given to evidence that was hearsay, and insufficient weight was given to cogent and reliable evidence given at the hearing including FL’s expression of his wishes. Mr Healy highlighted the warning given by the High Court in Briginshaw v Briginshaw39 about reliance upon vague and inconclusive evidence when deciding matters of gravity. [43] In our view, the Tribunal below explains its reasoning for appointing the PTQ as an administrator. The Tribunal below finds in [55] that there is a need for decisions to protect FL’s assets and to manage his day to day affairs and, as required under s 12 of the GA Act, that without an appointment of an administrator FL’s interests will not be adequately protected. [44] The Tribunal identifies concerns about FL’s furniture, and about another male person living in FL’s home without his consent and without contribution to costs of the household (at [56]). The tribunal below considers in paragraph [58], s 31 of the GA Act and in paragraphs [59] to [68], inclusive, the concerns raised by RM with respect to FL’s finances presently managed by the PTQ. [45] In our view it was open for the Tribunal below to find that RM is not more appropriate than the PTQ as administrator for FL. The Tribunal explains in its written reasons the concerns held about RM, referring to her as having ignored the existence of the Tribunal’s appointment of the PTQ in participating in her ‘purported appointment as enduring power of attorney’.40 [46] RM submits that any concerns about the protection of FL’s main assets could have been addressed in a less restrictive and less expensive way such as by means of a registered deed executed by FL and others.41 However, we note firstly that the cost involved in having a professional administrator was taken into account by the Tribunal.42 Secondly, the proposal for a deed was not advanced to the Tribunal at first 36 Reasons, [45]. 37 Ibid, [29]. 38 Ibid, [30]. 39 (1938) 60 CLR 336. 40 Reasons, [70]. 41 Submissions in support of application filed 15 March 2022, [74-75]. 42 Reasons, [68]. -- 10 of 12 -- 11 instance. Had it been, it is highly unlikely that it would have been considered feasible, given the findings about FL’s decision-making capacity. [47] In relation to the contention raised by RM that the Tribunal below failed to take into account FL’s views about who he would like to be his administrator, the transcript of the proceeding below shows that the Tribunal had concerns about FL’s views being the views of RM (and not FL’s own views). The relevant extract from the transcript is set out below: Interpreter: I want to appoint [RM], to be my administrator and guardianship. Member: Have you been given that to say? FL: Yeah. Yeah.43 [48] There is no error in our view in the Tribunal’s findings and ultimate decision to appoint substituted decision makers for FL. Ground 2 is without merit. Ground 3: is there an error in the failure to appoint RM as FL’s substituted decision-maker? [49] As we have said above in respect of Grounds 1 and 2, the Tribunal below identified concerns about RM in the context of her being a suitable person for appointment as FL’s guardian and administrator. The Tribunal gave detailed and cogent reasons for its concerns. The Tribunal had regard to FL’s expressed wish that RM be his guardian and administrator, but concluded, for various reasons, that she should not be appointed. In our view, that conclusion was clearly open on the evidence. Ground 3 is without merit. Application for leave to rely upon fresh evidence and disposition of the application for leave to appeal [50] If we granted leave to appeal, we would be required to conduct a rehearing with or without the admission of additional evidence.44 [51] The proposed fresh evidence includes a report prepared by a specialist neurologist. The evidence could, in our view, have easily been obtained prior to the hearing below. There are a number of considerations contained within relevant case law that may be taken into account when exercising the discretion to allow leave to rely on fresh evidence. [52] In the present matter, RM refers us to the High Court authority in the case of CDJ v VAJ.45 The PTQ, in responding to the grounds of appeal, refer us to other cases that may be considered the usual authorities that the Appeal Tribunal has considered in other matters involving an application for leave to rely upon fresh evidence. [53] The decision of CDJ v VAJ considered whether to grant leave in a different though comparable statutory context. Notwithstanding, the High Court in CDJ v VAJ touched on a number of principles that are enshrined in the common law and relevant to the exercise of discretion. Relevantly, the exercise of discretion can not be confined to any general rule and must be considered in the context of the relevant matter. 43 Transcript, T1-7 to T1-8. 44 QCAT Act, s 147(2). 45 (1998) 197 CLR 172. -- 11 of 12 -- 12 [54] Here, as we have previously said, the fresh evidence could easily have been obtained prior to the hearing below. We also observe that RM is no stranger to the Tribunal’s proceedings and indeed raises no issue in the application for leave to appeal about notice of the hearing. RM had ample opportunity to obtain and file any relevant evidence prior to the hearing. Further, the issue of FL’s capacity was clearly a live issue in the proceeding below and RM did not apply for an adjournment nor raise an issue about further evidence that should be obtained and put before the Tribunal. [55] The Tribunal below was entitled to consider the evidence before it and make relevant findings. The Tribunal below was entitled to make observations about the evidence and findings about the information and oral evidence given at the hearing. Another Tribunal may have come to a different view about the evidence but that reason alone is insufficient to disturb the findings of the Tribunal at first instance. The Tribunal below did in fact have and use an interpreter to facilitate communication by FL in the hearing. As reflected in the transcript, FL did make his views known to the Tribunal below. The Tribunal below had concerns about whether FL’s views were his own. It was open to the Tribunal below to make relevant findings based on the evidence and information received in the hearing. [56] For completeness, we have considered the document handed to the Appeal Tribunal in the oral hearing by RM. The document marked exhibit 1 for identification purposes is signed by FL and appears to be a statement written by RM that he would like his full pension paid into his savings account and for RM to be his administrator and guardian. [57] We refuse leave to rely on the material identified as fresh evidence including the document handed to the Appeal Tribunal in the oral hearing. As we have discussed above, RM has failed to identify any error in the Tribunal’s decision below. Further, the Tribunal will be conducting a review of the appointment of a guardian shortly. RM and more importantly, FL will have an opportunity to obtain any relevant evidence including current medical evidence prior to the review hearing. The material will be considered by a differently constituted Tribunal exercising the powers under the GA Act and having regard to the relevant provisions of the Human Rights Act 2019 (Qld). Conclusion [58] The appropriate orders are that the application for leave to appeal is refused and the application for leave to rely upon fresh evidence is refused. We order accordingly. [59] Finally, we note that at the hearing before the Appeal Tribunal, Mr Healy indicated that RM intended to seek a costs order. No costs application has been made, but we note that costs can be awarded even after a proceeding has ended.46 An application for costs can be considered if a party decides to file one. In the circumstances, we have not made any directions about the filing of any costs applications or for submissions on costs. 46 QCAT Act, s 106. -- 12 of 12 --