EMC v MMH & Ors [2022] QCATA 139

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: EMC v MMH & Ors [2022] QCATA 139 PARTIES: EMC (applicant/appellant) v MMH MPB MPA ECJ PUBLIC GUARDIAN THE PUBLIC TRUSTEE OF QUEENSLAND (respondent) APPLICATION NO/S: APL141-22 ORIGINATING APPLICATION NO/S: MATTER TYPE: DELIVERED ON: HEARING DATE: HEARD AT: DECISION OF: ORDERS: CATCHWORDS: APPEARANCES & REPRESENTATION: G45705 Appeals 30 August 2022 On the Papers Brisbane Acting Senior Member Fitzpatrick The application to stay a decision is dismissed. APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND -STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where former attorney for personal and health matters and for financial matters replaced by the Public Guardian and the Public Trustee of Queensland – former attorney seeking stay of decision Human Rights Act 2019 (Qld), s5 Queensland Civil and Administration Act 2009 (Qld), s58 Hessey-Tenny v Jones [2018] QCATA 131 Simonova v Department of Housing and Public Works [2018] QCA 60 This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) -- 1 of 4 -- 2 REASONS FOR DECISION [1] The parties have been de-identified in this decision. [2] The applicant EMC has filed an application for leave to appeal or appeal and an application to stay a decision with respect to a decision made by the Tribunal on 5 April 2022. The Appeal Tribunal’s decision deals with the application to stay a decision. The Appeal Tribunal makes its decision under s58 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [3] Pursuant to the decision dated 5 April 2022, the Public Guardian was appointed guardian for the adult ECJ for health care decisions. The appointment is reviewable and is to be reviewed in five years. [4] The Tribunal appointed the Public Trustee as administrator for ECJ for all financial matters. The appointment remains current until further order of the Tribunal. The Tribunal required a financial management plan and a statement of advice from a financial planner to be provided to the Tribunal within 6 months of the date of the Order. [5] The decision also revoked the following Enduring Powers of Attorney for ECJ: (a) an Enduring Power of Attorney dated 13 February 2015 appointing MPB, MMH and MPA as attorneys for financial, personal and health matters; and (b) an Enduring Power of Attorney dated 20 November 2019 appointing EMC as attorney for financial, personal and health matters. [6] The decision was made following a hearing with respect to three applications filed by ECJ’s daughter, MMH. The applications sought appointment of the Public Guardian, the Public Trustee and sought orders about the 20 November 2019 Enduring Power of Attorney. [7] The adult, ECJ is 87 years of age and resides in an aged care facility. [8] The Tribunal below found that, as at the date of the decision, ECJ lacked capacity for significant or complex personal, health and financial matters. [9] The Tribunal found that the Enduring Power of Attorney made on 13 February 2015 was valid but was extinguished by the 20 November 2019 Enduring Power of Attorney. Although a question existed as to whether ECJ had capacity to make that latter Enduring Power of Attorney the Member found that it was not necessary to make any finding in that regard because of other findings in the matter. [10] The Tribunal considered a good deal of written and oral material, including written and oral submissions from EMC. The key concerns for the Tribunal were said to be the quick sales in early January 2019 of ECJ’s shares and duplex units. Further, significant repairs, maintenance and renovations were undertaken at EMC’s residence in which EMC lives rent free, without any substantiation of those costs having been met by EMC. [11] The Member noted that EMC did not provide the Tribunal with any bank account statements, evidence of investment or other records to establish his compliance with his responsibilities under the Powers of Attorney Act 1998 (Qld). The Member considered that significant investigations into the management by EMC of a complex and significant financial estate over the past two years is required. -- 2 of 4 -- 3 [12] The Tribunal did not consider it to be in the best interests of ECJ or other parties for the matter to be delayed when the matter had been on foot for many months. Accordingly, the Member did not adjourn the matter to enable detailed financial records to be provided to the Tribunal. [13] The Tribunal also noted the high level of conflict between ECJ’s adult children who were unable to engage in civil communication. Against that background, the Tribunal considered that the children would be unable to consult with each other to enable meaningful input into decisions required for ECJ. Accordingly, independent and objective decision makers were found to be required because no member of the family was suitable as a decision maker. The Member found that both of ECJ’s children were inappropriate as attorney and that both enduring powers of attorney should be revoked. It was found that the Public Guardian and Public Trustee were the most appropriate appointees in view of the family conflict. Given the need for an investigation into ECJ’s finances it was said that it was not appropriate for the actions of one child to be investigated by a sibling. Consideration [14] In cases where leave to appeal is required, as in this proceeding, a stay will not be granted unless exceptional circumstances are shown.1 I do not consider that the applicant ECJ has demonstrated exceptional circumstances. [15] Apart from this consideration, the conventional principles relating to the granting of stays pending an appeal require the following matters to be taken into account: (a) whether there is a good arguable case, assessed on a preliminary basis only; and (b) the balance of convenience. In this regard relevant factors include any disadvantage to the applicant if the stay is not granted weighed against disadvantage to the other parties; whether refusal of a stay would render the appeal nugatory; and the public interest. [16] The applicant’s grounds of appeal are not characterised by reference to errors of law or fact by the Member below. However, in summary it is asserted that there was a failure to determine the wishes of the adult ECJ, that the decision as to capacity was made without reference to medical evidence, there was a lack of procedural fairness in that the applicant was not given an opportunity to answer allegations made against him or to produce financial information; and the Tribunal failed to apply the principles in s15 of the Guardianship and Administration Act 2000 (Qld). [17] I note that ECJ was given notice of the hearing but expressed a wish not to participate in the Tribunal proceeding. In relation to capacity - medical evidence was relied upon together with evidence from both MMH and EMC as to their mother’s ability to understand and make informed decisions of any consequence. [18] In relation to procedural fairness, it should be noted that the Tribunal process is inquisitorial, not adversarial. That said, the applicant was aware that his role as attorney was challenged by the application filed in the Tribunal seeking orders for his removal. The applicant was granted leave for legal representation and was directed to file any statements on which he relied in the matter. 1 Simonova v Department of Housing and Public Works [2018] QCA 60, p5; Hessey-Tenny & Anor v Jones [2018] QCATA 131, [24]. -- 3 of 4 -- 4 [19] As to the last ground of appeal, no particulars are given on which any assessment could be made. [20] In all, on a preliminary assessment and without making any findings, I consider that the applicant’s case is arguable but could not say that it is a good arguable case. [21] As to the balance of convenience, no submissions are made as to any detriment to EMC if a stay of the decision is not granted. [22] The Guardianship and Administration Act 2000 (Qld) is protective and beneficial legislation. The best interests of EJC should be borne squarely in mind when considering the balance of convenience. If a stay were granted and administration of EJC’s affairs passed back to EMC, not only would there be further disruption to the management of EJC’s affairs, but also any investigations and corrective steps taken by the Public Trustee of Queensland would be impacted. That is a factor which counts against a stay of the decision. [23] The Member considered that an investigation into the conduct of EJC’s financial affairs should be conducted and that was one reason why the Public Trustee of Queensland was appointed. I consider that the public interest in proper conduct by an attorney in the administration of a principal’s affairs, is best served by refusing to stay the decision, so that the Public Trustee of Queensland can continue its work. [24] Finally, if a stay is not granted and any appeal is successful, the appeal will not be rendered nugatory by the refusal of a stay of the decision. [25] The balance of convenience favours the refusal of the application to stay the decision. Human Rights [26] I consider that this decision is the exercise of a judicial power, and in exercising that power EMC has been accorded a fair hearing compatible with his human right to a fair hearing.2 Order [27] The application to stay a decision filed on 10 June 2022 is dismissed. 2 Human Rights Act 2019 (Qld), s5(2)(a). -- 4 of 4 --