BMA [2016] QCAT 514

CITATION: BMA [2016] QCAT 514 PARTIES: BMA APPLICATION NUMBER: GAA9374-16 GAA9377-16 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 29 November 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. Leave is not granted for SNS to be represented by SM or SJ at the hearing of applications GAA9374-16 and GAA9377- 16. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PARTIES AND REPRESENTATION – OTHER MATTERS – where application about an adult who granted an Enduring Power of Attorney – where capacity of adult in issue – where attorney sought leave to be represented at the hearing of the application – where attorney sought leave to be represented by persons other than a lawyer – where proposed representatives were to speak on behalf of the attorney about her evidence – where English was not the first language of the attorney – where an interpreter would be present at the hearing to eliminate or reduce the language difficulties of the attorney - whether the persons identified by the attorney were appropriate to be her representatives Guardianship and Administration Act 2000 (Qld) ss 123 and 124(1) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 43(4)(b) -- 1 of 4 -- 2 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REASONS FOR DECISION [1] BMA is 89 years of age. On 24 June 2016, she made an Enduring Power of Attorney granting her daughter, SNS, the power to make decisions for personal, health and financial matters. By making this Enduring Power of Attorney, BMA revoked an earlier Enduring Power of Attorney by which she had granted decision-making powers to her son, BOA on 9 April 2011. [2] BOA applied to QCAT for a declaration about the capacity of BMA to make the Enduring Power of Attorney on 24 June 2016. SNS is an active party in those proceedings and she has instructed lawyers to act for her. Her lawyers sent to the Tribunal an application by SNS seeking leave to be represented in the QCAT proceedings. In that application, she seeks leave to be represented by her husband and her son. [3] Active parties have a right to participate in hearings of proceedings made under the Guardianship and Administration Act 2000 (Qld) (GAA)1 but they do not have an as of right entitlement to be represented at a QCAT hearing. Under s 124(1) of GAA, an active party may be represented by a lawyer or agent with the Tribunal’s leave. The granting of leave is discretionary. [4] The GAA is silent on the factors that the Tribunal can take into account when exercising that discretion. The QCAT Act does provides assistance to the exercise of discretion, particularly when the potential representatives are not lawyers but will be agents in terms of s 124(1) of GAA. The focus of the Tribunal’s consideration must be whether the exercise of discretion in favour of granting leave is in the interests of justice in the circumstances of each case. [5] Under s 43(4)(b) of the QCAT Act, a party cannot be represented in a proceeding by a person who is not an Australian legal practitioner or government legal officer, such as an agent, unless the Tribunal is satisfied the person is an appropriate person to represent the party. Neither the husband nor son of SNS is an Australian legal practitioner or government legal officer. The issue is whether they should represent SNS as her agents at the hearing. [6] SNS had submitted that SJ has been her husband for 28 years. She submitted that SJ is fully aware of the issues raised in the application made by BOA, of the background of the matter and of the response of SNS to the application. SNS submitted that English is her second language and she is not confident in her ability to speak in public at any hearing of the matter. SNS submitted that it was appropriate for her husband SJ to speak and 1 Guardianship and Administration Act 2000 (Qld), s 123. -- 2 of 4 -- 3 communicate at any hearing on her behalf as he is more fluent in English and has a thorough understanding of the matter and of her views. [7] SNS also submitted that she is very distressed about this matter and she finds that she gets quite emotional when speaking about it. SNS submitted that when she gets emotional, she is not able to clearly communicate in order to express herself in a hearing situation. [8] In a second application for leave to be represented, SNS submitted that her son, SM, is fully aware of the issues raised in the application, of the background of the matter and of her response to the application. She further submitted that it was appropriate that her son speak and communicate at any hearing on her behalf as English is his first language and he has a thorough understanding of the matter and her views. SNS submitted that she seeks leave to be represented by both SJ and SM because her husband has hearing difficulties and may require SM to assist him in representing SNS at the hearing. [9] Due to the issue that SNS has raised about potential language difficulties she may experience at the hearing, the Tribunal will arrange for an interpreter to attend the hearing to provide assistance to SNS at no cost to her. This is a standard support made available to parties and witnesses at QCAT when they disclose they may be at a disadvantage due to language difficulties. The Tribunal is satisfied that any potential disadvantage to SNS due to English being her second language will be adequately overcome by the support from an interpreter. [10] SNS also relied on her need for emotional support as a ground for seeking leave for family members to represent her at the hearing. In making her submissions, SNS appears to misunderstand the nature of a hearing in the guardianship jurisdiction at QCAT. The hearing is conducted on an inquisitorial basis and not on an adversarial basis where applicants and respondents have to argue their cases before the Tribunal. There are no respondents in guardianship matters as the focus is primarily on the adult about whom the application is about. [11] Unlike civil claims at QCAT, active parties in guardianship hearings are not expected to lead oral evidence from witnesses, cross-examine other witnesses or to make submissions about their position in an application. The Tribunal member will identify at the start of the hearing what issues have to be determined and will then ask questions of the active parties, and possibly of other family members, in order to reach a decision on the application. [12] Even when active parties are represented at a hearing, they must participate by giving information and by answering questions put to them by the member and in this manner they assist in the determination of the issues. SNS sought to have her husband and her son speak for her at the hearing. This is not the purpose of representation. SNS will be expected to actively participate at the hearing and this will include speaking directly -- 3 of 4 -- 4 to the Tribunal about what she knows about the issues in the application about BMA. [13] If, as submitted, the husband and son of SNS have relevant information to put to the Tribunal, they will be permitted to speak as witnesses. A person should not be, at the same time, a witness and a representative of another person at a hearing. The roles and obligations are quite different. If a representative gives evidence as a witness and is discredited as a witness, then their effectiveness as a representative will be undermined to the detriment of the person they represent. [14] The Tribunal concluded that it is not appropriate in this case for persons who are fully aware of information that will assist the Tribunal’s determination to be appointed to a representative role for SNS. It is more appropriate for those persons to be available as witnesses to give evidence at the hearing to assist the Tribunal’s deliberations. In view of the inquisitorial nature of the hearing, a representative in any event would not speak for, or in place of, the attorney who would be expected to give evidence directly to the Tribunal in her own words. The basis relied on by SNS for seeking leave in this case is not substantiated. [15] The Tribunal was not satisfied under s 43(4) of the QCAT Act that SJ and SM were appropriate persons to represent SNS in the proceedings. The Tribunal was not satisfied that leave for SNS to be represented by SJ and SM should be given under s 124(1) of GAA. This decision does not prevent SNS, if she chooses, to make a further application to seek leave to be represented by an Australian legal practitioner at the hearing of the guardianship applications. -- 4 of 4 --