BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27

CITATION: BK v The Public Guardian, Public Trustee of Queensland & JS [2015] QCATA 27 PARTIES: BK (Appellant) v The Public Guardian Public Trustee of Queensland JS (Respondents) APPLICATION NUMBER: APL138-14 MATTER TYPE: Appeal HEARING DATE: 6 February 2015 HEARD AT: Brisbane DECISION OF: Justice Thomas, President Member Browne DELIVERED ON: 12 February 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The appeal on Ground 1A is allowed. 2. The application for leave to appeal or appeal on Grounds 1, 2 and 3 is dismissed. 3. The decision of the Tribunal on 25 February 2014 is set aside. 4. The application for the appointment of a guardian and administrator is to be returned to the tribunal for reconsideration according to law and the findings disclosed in these reasons for judgment. CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – PROCEDURAL FAIRNESS – where attorney appointed under enduring power of attorney exercising powers – where application received for the appointment of a guardian and administrator – where investigation conducted by the adult guardian – where hearing adjourned to enable the attorney to prepare and file submissions – where attorney’s powers -- 1 of 9 -- 2 suspended – where the tribunal obtained documents before the hearing – where documents received not given to the parties – where parties not given an opportunity to consider documents received – where enduring power of attorney revoked and guardian and administrator appointed – whether failure to afford procedural fairness Guardianship and Administration Act 2000 (Qld), s 103, s 119, s 130 Queensland Civil and Administration Act 2009 (Qld), s 28, s 29, s 146, s 147, s 148 Powers of Attorney Act 1998 (Qld), s 76 Public Guardian Act 2014 (Qld), s 34, s 35 Re AT [2010] QCATA 14; cited Australian Meat Holdings Pty Ltd v Douglas & Ors [2005] QCA 437; cited BBE [2014] QCAT 080 Chambers v Jobling (1986) 7 NSWLR 1; cited Dearman v Dearman (1908) 7 CLR 549; cited Kanda v Government of Malaya [1962] AC 322; cited Kioa v West (1985) 159 CLR 550; cited Pickering v McArthur [2005] QCA 294; cited Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; cited Wendley v Orchard [2013] QCATA 149; cited REPRESENTATIVES: APPLICANT: BK represented by Mr D Murphy QC of senior counsel with Dr M W Sayers of junior counsel instructed by Feeney Family Law RESPONDENT: Kevin Martin, Public Guardian represented by Dr K Spry of counsel instructed by Mr T La Spina, Senior Legal Officer, Office of the Public Guardian Ian Campbell, Public Trustee representing the Public Trustee of Queensland JS in person REASONS FOR DECISION [1] BBE is 98 years old. She can no longer make her own decisions and requires care and assistance in all of her activities of daily living. On 21 June 2012 BBE moved into an aged care facility (TreeTops) so that she could receive ongoing care. -- 2 of 9 -- 3 [2] BK is BBE’s daughter. She was also her mother’s attorney appointed under an enduring power of attorney dated 3 July 2006 for financial, health and personal matters.1 [3] The Powers of Attorney Act 1998 (POA Act) governs the powers of an attorney appointed under an enduring power of attorney. In particular, the POA Act requires an attorney to comply with the ‘General Principles’ set out under Schedule 1.2 [4] In late 2012 BK made some decisions for her mother as her attorney. One of the decisions made by BK was to engage the services of Home Care Select to provide private nursing care to BBE on a 24-hour basis. [5] JS is also BBE’s daughter. She made an application to the Tribunal on 22 October 2013 seeking appointment under the Guardianship and Administration Act 2000 (the GAA Act) as her mother’s guardian and administrator so that she could make decisions about her mother’s personal and financial matters. [6] BK did not agree with JS’ application. [7] In March 2013 the adult guardian3 received a referral containing allegations about decisions made by BK as her mother’s attorney. The allegations related to concerns about contact restrictions (with BBE) and care arrangements; and concerns about the management of BBE’s finances. The adult guardian conducted an investigation and prepared a report dated 12 December 2013. The adult guardian made findings that the attorney had breached certain provisions of the POA Act.4 [8] JS’ application made under the GAA Act did not proceed to hearing as listed on 16 December 2013. The Tribunal adjourned the hearing on 16 December 2013 and made directions for the filing of submissions by BK in response to the adult guardian’s investigation report. The Transcript shows the learned Member correctly identified that additional material had been received which all parties had not seen and in affording procedural fairness to the parties, an opportunity should therefore be given to the parties to ‘peruse the material’.5 The learned Member said: …I am aware that there has been a – an investigation undertaken by the adult guardian following a number of allegations. I received the report over the weekend. There, in my office this morning, there was a bundle of documents that I have not had a chance to see. The tribunal’s always concerned about procedural fairness, and the parties having the opportunity to peruse the material that’s been provided…. 1 The enduring power of attorney dated 3 July 2006 appointed B and another named attorney (since passed away) successively in the order named for financial and personal/health matters. 2 POA Act s 76. 3 As it was then known. See the Public Guardian Act 2014 that renamed the adult guardian as the ‘public guardian’. 4 Investigation report dated 13 December 2013. 5 Transcript of hearing on 16 December 2013, p 1-3, LL 1 – 5. -- 3 of 9 -- 4 [9] On 17 December 2013 the adult guardian suspended BK’s powers as her mother’s attorney and the adult guardian and the Public Trustee of Queensland (PTQ) was given powers to make decisions for BBE.6 [10] On 13 January 2014 the registry received documents that had been requested after the adjournment on 16 December 2013. The documents were progress notes made by carers from the aged care facility (TreeTops) where BBE resides.7 [11] The parties8 were not notified of the receipt of the TreeTops documents. [12] On 23 January 2014 JS’ application proceeded to a hearing. The learned Member made orders to revoke the enduring power of attorney and to appoint the adult guardian and the PTQ as BBE’s guardian and administrator respectively.9 [13] BK has filed an amended application for leave to appeal or appeal the Tribunal’s decision.10 There are 4 grounds of appeal. [14] In the first ground of appeal BK says the learned member erred by failing to act fairly and/or in denying her procedural fairness as required under s 28 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act).11 BK says the Tribunal relied on or otherwise had access to documents from TreeTops that were not served on her prior to the hearing. BK also says she was not given a reasonable opportunity to consider and respond to the documents that were not specifically identified or otherwise referred to in the hearing as documents that were before the learned Member. [15] There are three other grounds of appeal that may be considered under a broader category as they relate to the Tribunal’s reasons and the findings made by the learned Member. The appeal tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.12 However an appellate tribunal may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.13 [16] Firstly, BK says the learned Member made findings when such finding were made without any or any sufficient evidence. In particular the learned Member made findings about the ‘data collection’ information from Home 6 Notice of Suspension dated 17 December 2013 pursuant to s 195 and s 196 of the Guardianship and Administration Act 2000 that is now superseded by the Public Guardian Act 2014, see s 34 and s 35. 7 For the period from 12 December 2013 to 13 January 2014 inclusive. 8 The active parties for the purposes of s 119 of the GAA Act are BK, JS, the public guardian and the PTQ. 9 BBE [2014] QCAT 080. 10 Filed on 6 June 2014. 11 Amended application for leave to appeal or appeal filed 6 June 2014, Part C, ground 1A. 12 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125 – 126. 13 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 4 of 9 -- 5 Care Select that was found by the learned Member to be ‘so intrusive as to constitute a breach’ of the General Principles.14 There is a further ground that relates to the finding made by the learned Member about the attorney’s ‘failure to act with reasonable diligence’ to protect BBE’s financial interests contrary to the provisions of the POA Act.15 Finally, BK says the learned Member erred in not taking into account ‘the clear and unquestioned’ evidence given that she would not re-engage the services of Home Care Select.16 [17] Some of the grounds raise errors of law and some are mixed fact and law for which leave is required. Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.17 [18] There was a further issue raised at the oral hearing by Mr Murphy QC representing BK about who the ‘proper’ respondents are in the appeal. Although this is not directly relevant to the grounds of appeal argued by BK in her amended application,18 we are satisfied that the public guardian, the PTQ and JS are ‘an eligible person’ under s 163 of the GAA Act and as such are respectively ‘taken to be a party to the proceeding’ under the QCAT Act and therefore have the opportunity to make submissions.19 Ground 1A: Was there a denial of procedural fairness? [19] This ground of appeal raises a question of law as to whether there has been a breach of natural justice. In particular, did the learned Member afford BK a reasonable opportunity to present her case including an opportunity to consider the documents from TreeTops? The TreeTops documents were requested by the QCAT registry after the adjournment on 16 December 2013 and were received (on 13 January 2014) before the final hearing on 23 January 2014. [20] BK did not know the registry had requested the documents from TreeTops. This would have arisen because the Tribunal has the power to obtain documents. Section 28(3)(c) of the QCAT Act provides that the Tribunal has the power to ‘inform itself in any way it considers appropriate’. There is also an obligation on the Tribunal under the GAA Act to ‘ensure, as far as it considers it practicable, it has all the relevant information and material’.20 14 Amended application for leave to appeal or appeal filed 6 June 2014, Part C, ground 1. 15 Ibid ground 3. 16 Ibid ground 2. 17 Pickering v McArthur [2005] QCA 294 at [3]. 18 Amended application for leave to appeal or appeal filed 6 June 2014. 19 The public guardian, PTQ and JS are ‘active parties’ for the purposes of s 119 of the GAA Act. 20 GAA Act s 130. -- 5 of 9 -- 6 [21] There is an obligation under the GAA Act to give each active party ‘a reasonable opportunity to present’ their case.21 A party to a proceeding has a right to inspect documents ‘filed in the registry’ under s 230 of the QCAT Act and for the purposes of the GAA Act an ‘active party’ has a right to access documents.22 It is a matter for the parties to avail themselves of the opportunity to inspect the Tribunal’s file and an order to permit them to do so is not required. [22] There is no obligation on the public guardian or the PTQ to provide documents that have been obtained by the Tribunal to an ‘active party’ such as BK.23 As observed by the PTQ representative at the hearing the registry will request documents, as it did in this case, because of the nature of the jurisdiction that involves people who no longer have the capacity to make decisions. The PTQ regularly inspects documents on the Tribunal’s file prior to hearing. [23] In Re AT24 the appeal tribunal found that a denial of procedural fairness is an error of law.25 The President Justice Wilson (as he then was) said: As Lord Denning observed [in Kanda v Government of Malaya [1962] AC 322 at 337], if a right to be heard is worth anything, it must carry with it the right to know the case that has to be met…26 [24] The High Court found in Kioa v West27 that there is a common law duty to ‘act fairly’ and to afford procedural fairness in the ‘making of administrative decisions which affect rights, interests and legitimate expectation’.28 Mason J said: The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention…What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject matter, and the rules under which the decision-maker is acting…29 [25] The Court of Appeal in Australian Meat Holdings Pty Ltd v Douglas & Ors30 in considering Kioa’s case found that procedural fairness ‘conveys’ an obligation to adopt fair procedures which are ‘appropriate and adapted to the circumstances’.31 McPherson JA observed: 21 GAA Act s 103. 22 Ibid s 103. Section 119 of the GAA Act defines ‘active party’. 23 Section 119 of the GAA Act defines who is an ‘active party’. 24 [2010] QCATA 14. 25 Ibid, see Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82. 26 Ibid. 27 (1985) 159 CLR 550. 28 Ibid at p 585, per Mason J. 29 Ibid. 30 [2005] QCA 437. 31 Ibid [19]. -- 6 of 9 -- 7 …The expression “procedural fairness” conveys “the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case”…Mason J [said in Kioa]: “The statutory power must be exercised fairly, that is, in accordance with the procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual, and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations”.32 [26] The guardianship jurisdiction is by its very nature protective and the Tribunal is dealing with people who are in many instances vulnerable. The Tribunal must act quickly, as it is required to do under the QCAT Act. Section 28(3)(d) of the QCAT Act provides that the Tribunal must act with ‘as little formality and technicality and with as much speed as the requirements of this Act, enabling Act or the rules and a proper consideration of the matters before the tribunal permit’.33 [27] The requirement to act quickly and with little formality or technicality does not override the Tribunal’s obligation generally and under s 28 of the QCAT Act to ‘observe the rules of natural justice’.34 The Tribunal must give an ‘active party’ a reasonable opportunity to consider material relevant to the proceeding so that the party can respond to the material. [28] In this case BK did not inspect the Tribunal’s file prior to the hearing. She did not know the TreeTops documents had been requested and were therefore available for her inspection. The right to inspect documents under s 103 of the GAA Act does not otherwise remedy a failure by the Tribunal to afford a party a reasonable opportunity to present their case. The Tribunal’s obligations to afford procedural fairness to a party will remain until its final decision is made. [29] As to documents obtained by the QCAT Registry, the obligation may be discharged by, for example, making a direction that documents obtained by the registry are to be provided to a party or by informing a party of the fact that the QCAT Registry has obtained documents which can be inspected pursuant to s 103. Alternatively, the Tribunal may, in meeting its objectives to act quickly, refer the parties to those relevant documents at the commencement of the hearing and provide an adequate opportunity for the parties to consider these documents. [30] In this case the Tribunal received documents relevant to BBE’s daily care.35 The documents were relevant to the proceedings in particular, the issue of care being provided to BBE by the private carer Home Care Select. 32 Ibid. 33 QCAT Act s 28(3)(d). 34 Ibid s 28(3)(a). 35 The TreeTops documents were not obtained and supplied to the Tribunal by the adult guardian, as contended by BK. -- 7 of 9 -- 8 [31] It is clear from reading the transcript of the hearing on 16 December 2013 that there were conflicting views held by the parties about the involvement of the private carer Home Care Select engaged by the BK in her capacity as BBE’s attorney.36 The adult guardian terminated the services of Home Care Select after suspending the attorney’s power for personal and health matters on 17 December 2013. [32] BK says the TreeTops documents are important because they contain information that is ‘relevant to the issues in the proceeding’.37 BK refers to entries made in the progress notes on 26 December 2013 that reference ‘a fall’; on 28 December 2013 that reference ‘hipsaver supports’; and, on 28 December 2013 that reference ‘who had removed’ or ‘help remove’ the ‘hipsaver supports’.38 BK says the entry on 26 December 2013 reports that BBE fell and was ‘found in the corridor’,39 and that this means BBE was found by staff at TreeTops ‘some days’ after the Home Care Select services were terminated by the adult guardian.40 [33] We accept BK’s submission that the TreeTops documents are relevant to several issues in the proceeding including the issue of the reasonableness of the Home Care Select services, the well-being of BBE as at the date of the hearing and the appropriateness of the level of care being provided to BBE during the period that the adult guardian was exercising power under the GAA Act.41 [34] BK also says that the learned Member failed in his reasons to identify a list of all of the documents which had been provided to the Tribunal. In particular the reasons and transcript ‘fail to identify any exercise whereby the parties identified all of the documents which they had provided to the Tribunal’.42 [35] At the oral hearing, Mr Murphy QC did not dispute that it would be unreasonable to expect a decision maker to identify either at the commencement of the hearing or in written reasons every document that has been filed in a proceeding. Mr Murphy QC asserted that it is not clear from reading the transcript or the reasons for decision whether the learned Member considered the TreeTops documents. Mr Murphy QC submitted that the learned Member should have given BK an opportunity to consider the TreeTops documents and afforded her an opportunity to respond. [36] We agree that it is not clear from reading the transcript on 23 January 2014 and the reasons made on 25 February 2014 whether the learned Member had read and considered the TreeTops documents. In the 36 Transcript of hearing on 16 December 2013, p 1-4, LL 30 – 40, p 1-5, LL 8 – 15. 37 Submissions of BK filed 6 June 2014, [7]. 38 Amended application for leave to appeal or appeal, Annexure ‘A’, p 1. 39 Ibid. 40 Submissions of BK filed 6 June 2014, [7]. 41 Ibid. 42 Ibid. -- 8 of 9 -- 9 transcript the learned Member makes references to ‘documents’ in relation to the ‘facility’.43 [37] In the written reasons the learned Member says he has ‘examined’ documents provided by ‘stakeholders’. He also refers to the ‘discrepancy’ between the ‘views’ of the facility staff and other evidence given by BBE’s medical practitioner.44 It is not clear from the learned Member’s reasons whether he is referring to the TreeTops documents received on 13 January 2014. In relation to all of the documents in the proceeding the learned Member said in his reasons he had ‘examined every document’.45 The learned Member said: The Tribunal has examined every document provided by all stakeholders. The volume of these materials precludes detailed commentary on each submission and only details pertinent to the decisions will be reported here.46 [38] There is no statutory obligation on the learned Member to list or identify all of the documents filed in the proceedings. The learned Member’s obligation is to set out the ‘essential ground or grounds upon which the decision rests’.47 This obligation does not include listing every document considered. [39] In this case the learned Member did not give BK a reasonable opportunity to present her case in circumstances where the registry requested and obtained documents prior to the hearing and those documents were not given to BK. At the hearing BK was denied the opportunity to consider the documents and to make submissions about any issues arising that were relevant to the issue of care being provided to BBE. This is a breach of natural justice and denies BK procedural fairness. What are the appropriate orders? [40] We have found there was an error of law. The learned Member did not give BK a reasonable opportunity to consider relevant documents received by the Tribunal prior to the hearing or before it made a final decision. [41] The appeal is allowed. The matter should be remitted to the learned Member for reconsideration. In this reconsideration the parties will be given an opportunity to submit fresh evidence and make fresh submissions. [42] Because of the ruling we have made based on Ground 1A it is not necessary to address the other grounds of appeal as those involve factual issues arising in the decision set aside by this decision and which may be the subject of fresh evidence at the reconsideration. 43 Transcript of hearing on 23 January 2014, p 2-34, LL 26 – 30. 44 Reasons for decision, [24]. 45 Ibid [13]. 46 Ibid. 47 Soulemezis v Dudley (Holdings) Pty Ltd [1987] NSWLR 247 at 280. -- 9 of 9 --