Bennett v Bennett [2014] QCATA 312

CITATION: Bennett v Bennett [2014] QCATA 312 PARTIES: Mary Bennett (Applicant/Appellant) v Walter Henry Bennett (Respondent) APPLICATION NUMBER: APL196-13 MATTER TYPE: Appeals HEARING DATE: 1 July 2014 HEARD AT: Brisbane DECISION OF: Justice Thomas, President Member Gardiner DELIVERED ON: 28 November 2014 DELIVERED AT: Brisbane ORDER MADE: Leave to appeal is refused. CATCHWORDS: APPEALS – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – POWER OF ATTORNEY – APPLICATION FOR LEGAL EXPENSES – where applicant applied to Public Guardian for repayment of legal expenses incurred in the course of an application to be made guardian and administrator for her mother – where tribunal found that legal expenses were not incurred as a result of the applicant acting in her role of attorney – where applicant not awarded repayment of legal expenses – where applicant appeals against questions of mixed fact and law – whether leave to appeal should be granted Guardianship and Administration Act 2000 (Qld) s 174 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142 BE [2013] QCAT 185 Chambers v Jobling (1986) 7 NSWLR 1 Dearman v Dearman (1908) 7 CLR 549 -- 1 of 5 -- 2 Fox v Percy (2003) 214 CLR 118 Pickering v McArthur [2005] QCA 294 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mary Bennett with Judith Murphy RESPONDENT: G Delaney of O’Neills Law REASONS FOR DECISION Background [1] In 2003, Mrs Eileen Bennett appointed two of her six children, Mary and Walter Bennett, as her attorneys for financial, personal and health matters. Because of conflict that arose between the parties, the Public Trustee of Queensland was appointed by this tribunal as the administrator for Mrs Bennett on 6 August 2010. This appointment overrode the provisions of the enduring power of attorney. [2] On 4 December 2012, the Public Trustee filed an application seeking directions from the tribunal concerning, amongst other things, repayment to Mary Bennett of legal expenses of $17,184.40 incurred by her while she had been acting as one of Mrs Bennett’s attorneys. This application was heard before the Tribunal on 5 March 2013, and a decision delivered on 15 April 2013, which directed the Public Trustee to reject Mary Bennett’s claim for legal fees. [3] Mary Bennett has filed an application for leave to appeal or appeal in relation to that decision. In her grounds of appeal, she says that the tribunal erred in law in its reasoning at paragraphs [34]-[35], and has indicated that she does not require leave to appeal. For reasons that will follow, the tribunal is of the opinion that the grounds of appeal raise questions of mixed law and fact. Section 142 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) states that a party may appeal to the appeal tribunal against a decision of the tribunal, however an appeal on a question of mixed fact and law may only be made if the party has obtained the appeal tribunal’s leave to appeal.1 Grounds of appeal [4] Mary Bennett’s application in this appeal submits that the tribunal’s reasons are incorrect because: a) Mary, as attorney for Mrs Bennett, sought legal advice and representation to protect Mrs Bennett’s interests, health and wellbeing and 1 QCAT Act s 142(3)(b). -- 2 of 5 -- 3 b) the issue of costs was not raised or considered at that hearing. [5] Mary Bennett also filed submissions in this appeal which can be summarised as follows: a) That she did not consult the lawyers in her own interest but rather to protect Mrs Bennett from actions that were to be taken which were detrimental to Mrs Bennett’s health, welfare and best interests. b) That the legal fees paid to the lawyers were for legal advice and assistance relating to the circumstances surrounding the admission and subsequent removal of Mrs Bennett from her hostel. c) That on 12 June 2010, she had become aware that Walter Bennett and her sister Bridget Delany intended to remove Mrs Bennett from the hostel. d) That she had a clear and unequivocal responsibility to protect Mrs Bennett’s health, welfare and state of mind. e) Her intention was not to overtake the power of attorney but to ensure she was discharging her authority appropriately for Mrs Bennett’s benefit. The tribunal’s decision [6] It assists this appeal to set out both paragraphs [34] and [35] of the tribunal’s decision of 15 April 2013: [34] However the claim for reimbursement of legal fees of $17,184.40 incurred by Mary Bennett is quite different from the first mentioned claim. Mary Bennett instructed lawyers to act on her behalf in June 2010 to bring proceedings in this tribunal. Mary Bennett and Walter Bennett had been acting as the attorneys for Mrs Bennett at that time. They did not agree as attorneys on where Mrs Bennett should be accommodated. Directions were sought by Mary Bennett from the tribunal to prevent the implementation of a decision being made by one of the attorneys. She also applied on 30 June 2010 to be appointed as the guardian and administrator of Mrs Bennett. [35] No orders for costs were made by the tribunal in August 2010 when the applications were determined. The tribunal cannot find that the applications by Mary Bennett were brought as an incidence of her role as attorney. The proceedings in fact sought to overtake the authority of the attorneys as decision makers for Mrs Bennett. The legal costs incurred by Mary Bennett cannot be found to have been incurred as agent for her principal. The legal costs incurred by Mary Bennett are her own responsibility and cannot be paid from the funds of her principal. The tribunal directs that the claim by Mary Bennett for reimbursement of $17,184.40 from the funds of Mrs Bennett is refused.2 [7] In summary the tribunal held: 2 BE [2013] QCAT 185. -- 3 of 5 -- 4 a) That the applications brought by Mary Bennett were not brought as an incidence of her then role as attorney for Mrs Bennett; b) The proceedings in fact sought to over take the authority of the then attorneys for Mrs Bennett; c) That Mary Bennett’s legal costs were not found to have been incurred by her as an agent for Mrs Bennett; and d) The legal costs incurred by Mary Bennett were her own responsibility and could not be paid from the funds of Mrs Bennett. Discussion [8] Mary Bennett’s appeal grounds are not limited to questions of law, but also raise a question of fact. She disputes the tribunal’s finding, that she engaged lawyers in her own interest, rather than to protect her mother from actions which were detrimental to her health, welfare and interests. Leave to appeal is therefore 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.3 [9] We are not satisfied that leave should be granted. The application made by Mary Bennett in June 2010 was for directions to prevent the implementation of the accommodation decision of Walter Bennett, and also to be appointed as the guardian and administrator for her mother. At the hearing in March 2013, the tribunal acknowledged that an attorney can expect to be reimbursed for expenses incurred in acting under that role from the estate of the principal,4 but found that the legal expenses were not in that category. [10] The tribunal said: “There’s cases akin to this where an administrator, for instance, appointed by the tribunal, has been attacked about the way it’s gone about and done things, had to come to the tribunal, justify their position and, at the end of the day, the costs of the administrator were payable out of the estate of the adult.”5 [11] In her submissions to the tribunal at that hearing, Mary Bennett indicated she was not a paid carer and her expenses in relation to her mother were justified. As to some of the expenses claimed this submission was accepted by the tribunal in its reasons dated 15 April 2013, and The Public Trustee was directed to pay Ms Bennett the claimed amount. [12] When questioned at the hearing about the legal fees and the proposition outlined above, Ms Murphy, (another of Mary Bennett’s sisters) speaking for Mary Bennett, submitted that she had initially applied for directions (her first application) but that when she became aware that accommodation 3 Pickering v McArthur [2005] QCA 294 at [3]. 4 Transcript page 30, line 40. 5 Transcript page 31, line 6. -- 4 of 5 -- 5 decisions were being made, she decided she needed to apply for guardianship.6 [13] Mary Bennett’s submissions to the appeal tribunal are in line with the submissions outlined in the transcript. The evidence and submissions were before the tribunal in deciding the matter in the way reflected in its reasons of 15 April 2013. The tribunal accepted that Ms Bennett instructed lawyers to act in June 2010 to bring proceedings in the tribunal to change the substitute decision making for her mother. They found that she personally retained legal representatives to act on her behalf. [14] It is not infrequent in guardianship matters that a state of high conflict exists within the family surrounding the adult the subject of the proceedings. Such a state existed in this matter. [15] Under the Guardianship and Administration Act7 it would of course have been possible to approach the Public Guardian to mediate and conciliate between the attorneys if the Public Guardian considered this appropriate to resolve the issue that had arisen between them. As Mrs Bennett’s recorded wishes in the original enduring power of attorney were for the attorneys to work together, endeavouring to resolve the issue through mediation involving the Public Guardian would have accorded with the general principles of the Guardianship and Administration Act 2000 (Qld) in relation to substituted decision-making for Mrs Bennett. [16] However, to deal with the impasse and to prevent her siblings from taking action, Mary Bennett decided that she would bring applications in the tribunal. After an oral hearing, the tribunal found that the application brought by Mary Bennett was a result of her disagreement with the decisions that had been made by her other siblings, and that Mary Bennett was acting on her own behalf and, not as an incidence of her role as an attorney. This was a finding made on the evidence before it. On that basis, the tribunal declined reimbursement. Conclusion [17] When dealing with questions of fact on appeal, the appeal tribunal will not usually disturb findings if it considers the conclusions of the decision maker/s below were able to be made on the evidence before them,8 however may interfere if the conclusion is ‘contrary to compelling inferences’ in the case.9 The findings made by the tribunal were open on the evidence. Moreover, the application of legal principles, as applied to the underlying factual matrix (as found) was correct, and we can find no error in the tribunal’s decision. There is no risk of substantial injustice. Leave to appeal is refused. 6 Transcript page 45, line 20. 7 Section 174(c). 8 Dearman v Dearman (1908) 7 CLR 549 at 561; Fox v Percy (2003) 214 CLR 118 at 125- 126. 9 Chambers v Jobling (1986) 7 NSWLR 1 at 10. -- 5 of 5 --