CGB [2015] QCAT 535

CITATION: CGB [2015] QCAT 535 PARTIES: CGB APPLICATION NUMBER: GAA10698-15 / GAA10699-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Endicott DELIVERED ON: 8 December 2015 DELIVERED AT: Brisbane ORDERS MADE: Leave is not granted to SBK to be legally represented at the hearing of applications GAA10698-15 and GAA10699-15 CATCHWORDS: GUARDIANSHIP – where adult has been determined to have impaired decision-making capacity for personal and financial matters – where a guardian and administrators appointed for the adult – where an application made seeking directions to be given to the guardian about health care and contact decisions LEGAL REPRESENTATION – where administrator sought leave to be legally represented at the hearing of the application for directions – where administrator incorrectly set out in his application for leave that the applicant was seeking to remove him as an administrator - whether it had been established that it was required in the interests of justice that the administrator be granted leave to be represented at the hearing of the application for directions against the guardian Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43 -- 1 of 3 -- 2 APPEARANCES and REPRESENTATION (if any): 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] The Tribunal has determined that CGB has impaired decision-making capacity for personal and financial matters. The Public Guardian was appointed on 23 April 2015 as the guardian of CGB to make decisions about certain personal matters, including health care and with whom CGB has contact. [2] On 14 October 2015, ACC filed an application with QCAT seeking the Tribunal to make directions to the Public Guardian about the health care received by CGB and about her contact with CGB. ACC stated in her application that she had been restricted by the Public Guardian from seeing CGB regularly and she wanted that changed. [3] Directions were made by the Tribunal requiring submissions to be filed by the Public Guardian responding to the application by ACC and the appointed representative for CGB, Peter Sheehy, was directed to file a response setting out the views, wishes and interests of CGB about the application by ACC. Submissions have been filed in accordance with the directions made by the Tribunal. [4] SBK is one of the administrators appointed by the Tribunal for CGB. He has filed an affidavit about the application by ACC. In the affidavit, SBK sets out the conduct of ACC which is described as interfering with the business decisions that SBK has been making as the administrator for CGB. SBK sets out his support for the decision of the Public Guardian about restricting contact by ACC to CGB. SBK sought an outcome whereby ACC would be prevented from in any way interfering with the business activities of CGB about which SBK has been making decisions as administrator. SBK has not made an application seeking any directions against ACC and as she is not a decision-maker for CGB, it is difficult so see how any such directions can be made by QCAT under the Guardianship and Administration Act 2000. [5] SBK sought leave to be legally represented at the hearing of the application by ACC for directions about health care of CGB and about her contact with CGB. The issues involved in that application directly relate to the decisions made by the guardian and not about decisions made by the administrator, SBK. The evidence of SBK appears to be focussed on the business dealings conducted for CGB and has limited immediate relevance to the issues about health care and contact that are to be determined at the hearing. [6] SBK incorrectly stayed in his application for leave that ACC was seeking in her application to remove him as administrator. ACC is seeking directions about health care and contact. The actions taken by SBK as administrator -- 2 of 3 -- 3 will not be an issue at the hearing. His appointment as an administrator is not being reviewed at the hearing scheduled for 16 December 2015. [7] Active parties do not have an as of right entitlement to be represented at a QCAT hearing. Under section 43 of the QCAT Act, parties are required to represent themselves unless the interests of justice require otherwise. When determining an application for leave to be represented, the tribunal may consider the factors set out in subsection (3) of section 43 but can take other relevant factors into account in exercising discretion under section 43. The focus of the tribunal’s consideration must be to decide whether it is in the interests of justice that a party is represented. [8] The application by SBK for leave to be represented did not set out information as to why it would be in the interests of justice for SBK to be legally represented at the hearing of an application to determine whether the Public Guardian should be directed to make different health care and contact decisions about CGB. Rather, his application was based on an incorrect premise that ACC was seeking to have him removed as administrator and the application by SBK contained the inference, again incorrect, that ACC was seeking to take on that role for herself. [9] Having not been satisfied by the information provided by SBK that there were grounds to depart from the usual position required by the QCAT Act that parties should represent themselves, the application for leave to be represented was refused. The evidence filed by SBK will be considered at the hearing if found to have relevance to the actual issues being determined. [10] In addition, the Tribunal was not satisfied that CGB should be put at the risk of having to pay, by way of reimbursement, for SBK to be legally represented at the hearing of an application when SBK clearly has misinterpreted the outcomes being sought. Granting leave on that basis would not be in the interests of justice. -- 3 of 3 --