FN, Re [2012] QCATA 42

CITATION: Re FN [2012] QCATA 42 PARTIES: FN APPLICATION NUMBER: APL263-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Susan Gardiner, Member DELIVERED ON: 2 March 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for leave to appeal or appeal is refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – GUARDIANSHIP – where FN has a permanent disability – where QCAT appoints the Adult Guardian as guardian for some matters and The Public Trustee of Queensland as administrator for some matters – where an appeal is lodged against these appointments but which discloses no grounds – where the appeal is refused Queensland Civil and Administrative Tribunal Act 2009, ss 28, 142 REASONS FOR DECISION Senior Member Richard Oliver [1] I have had the benefit of reading the reasons of Ms Gardiner in draft. I agree with her reasons and her conclusions, and the order she proposes. Member Susan Gardiner [2] FN has an intellectual disability and diagnoses of autism and obsessive compulsive disorder. On 4 July 2011, this Tribunal appointed the Adult Guardian as guardian for FN for decisions about some personal matters (accommodation and the provision of services), reviewable in two years; -- 1 of 4 -- 2 and The Public Trustee of Queensland as administrator for all financial matters, the administration order remaining current until further order of the Tribunal. [3] The hearing on 2 November 2011 was attended by FN’s parents and a range of professional representatives of services or organisations who support or have supported FN in his hometown in Northern Queensland. FN did not attend as his father IM, the applicant in this appeal, advised that FN was residing interstate at the time of the hearing. [4] Under the QCAT Act, an appeal can only be brought directly if it is on a question of law. Otherwise, leave to appeal must be sought1. [5] The question whether or not leave should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?2 Is there a reasonable prospect that the applicant will obtain substantive relief?3 Is leave necessary to correct a substantial injustice to the applicant caused by some error?4 Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?5 [6] IM’s appeal specifies the following grounds for his application: i. That FN was a resident in New South Wales at the time of the decision and at the time of the filing of the appeal application remained residing in NSW; ii. The Tribunal was told by another party that IM had a criminal conviction which the Tribunal said it would investigate. IM denies any criminal conviction and says he did not have a chance to respond to any material before the Tribunal on this subject; iii. The Tribunal did not ask to question FN; iv. Documents presented to the Tribunal included reports that were not legally authorised to be made including material that was not authorised to be accessed; v. The decision puts FN in a position of hardship inside and outside Queensland. [7] Each of these grounds will now be addressed. That FN was a resident in New South Wales at the time of the decision and at the time of the filing of the appeal application remained residing in NSW 1 Section 142 Queensland Civil and Administrative Tribunal Act 2009. 2 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 3 Cachia v Grech [2009] NSWCA 232 at [13]. 4 QUYD Pty Ltd v Marvass Pty Ltd (supra). 5 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580. -- 2 of 4 -- 3 [8] IM does not dispute the finding of the Tribunal that the presumption of capacity is rebutted for FN in relation to decisions about personal matters (including decisions about FN’s domicile) financial matters and about the use of restrictive practices. [9] The jurisdiction of the Tribunal is based on FN’s domicile. Having discussed “domicile” in relation to FN, the original Tribunal concluded that on the evidence before it, FN had not initiated a decision to change his domicile of origin (being Queensland) nor of his own volition, had FN made the choice to change residence. In any event, as the Tribunal rightly points out, the acquisition and abandonment of domicile of choice requires the exercise of will and FN was found to have impaired capacity in that regard. [10] At the time of the hearing, the original Tribunal found FN was domiciled in Queensland, despite being out of the State. This finding of fact was open on the evidence before the original Tribunal and we see no reason to disturb that finding. This Appeal Tribunal is satisfied that the original Tribunal had jurisdiction to hear the application and make orders accordingly, despite FN’s absence from the hearing and the State. [11] IM’s appeal on this ground must therefore fail. Any Criminal conviction of IM [12] This ground of appeal is of little assistance to IM. The published reasons of the original Tribunal make it clear in the concluding paragraphs that after the hearing and the Tribunal decision was reached (but before the reasons were delivered), the Tribunal was informed that IM did have a criminal record. This fact was clearly not considered relevant to the Tribunal’s decision and had no bearing on the Tribunal’s deliberations. Because it was not relied upon, IM’s appeal on this ground must also fail. The Tribunal did not ask to question FN [13] The Tribunal did not question FN because he did not attend the hearing. The reasons record that IM, by his own evidence, was responsible for the removal of FN from Queensland. [14] Section 28 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the procedure for a hearing is at the discretion of the Tribunal (subject to the provisions of the Act). The Tribunal must observe the rules of natural justice; is not bound by the rules of evidence; may inform itself in any way it considers appropriate and must act with as little informality and technicality and speed as a proper considerations of matters permit. The Tribunal must also ensure that as far as practicable, all relevant material is disclosed to the Tribunal to enable it to decide the proceedings. [15] Despite FN’s non-attendance at the hearing, there was ample evidence before the original Tribunal to make the findings it did. IM makes no submission to support why FN’s non-attendance at the hearing is a ground -- 3 of 4 -- 4 for an appeal and the reasons of the original Tribunal disclose none. Accordingly, IM’s appeal on this ground must fail. Documents and material not legally authorised to be made or accessed [16] While IM lists this ground in support of his appeal application, IM does not indicate which documents he identifies under this ground. The reasons suggest that the document that IM had objection to was the Disability Services Assessment Report and Recommendations prepared by the Disability Services Evolve Behaviour Support Service (the Evolve report). [17] This Appeal Tribunal has considered the evidence before the original Tribunal and its ruling in relation to this document. It is clear from the reasons that IM was given ample opportunity to voice his objections to this report. The reasons of the original Tribunal address this report, it contents and the reasons why it was allowed into evidence in substantial detail. This Appeal Tribunal has not been able to identify any error in the reasons published by the original Tribunal concerning this document and neither has IM in his application or submissions, other than to indiscriminately assert that documents presented to the Tribunal included reports were not legally authorised to be made and including material that was not authorised to be accessed. IM’s appeal on this ground must fail for lack of any substantial or successful argument. Hardship [18] Finally, IM also alleges that the decision puts FN in a position of hardship inside and outside Queensland. IM makes this bald statement without any particulars of the alleged hardship. This allegation is not borne out by IM’s own submissions dated 21 October 2011 (four months from the order complained of) which state “As things stand at the moment, an interim order may not be necessary as all the parties involved are happy for FN to be for in his family home where FN is happy, singing and is having a quality of life that has improved dramatically; to put it mildly.” This Appeal Tribunal is satisfied this ground of appeal is unsubstantiated. [19] IM has not demonstrated any grounds for leave or to appeal. There is no question of importance about which a further argument and a decision of the Appeal Tribunal would be of public advantage. [20] While the Appeal Tribunal accepts that IM is motivated by nothing but the best interests of his son, his application for leave to appeal is refused. -- 4 of 4 --