BS [2011] QCAT 170

CITATION: BS [2011] QCAT 170 PARTIES: Mr BS APPLICATION NUMBER: GAA7264-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 28 March 2011 HEARD AT: Brisbane DECISION OF: Ron Joachim, Presiding Member Graham Quinlivan, Member DELIVERED ON: 21 April 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] The applicant BS and The Public Trustee of Queensland are to provide written submissions regarding compensation to BS in respect of his personal property which was located at his property. These submissions are to be served on the Tribunal at 259 Queen Street, Brisbane and each other within twenty-eight (28) days of the date of this hearing. The Public Trustee’s address for service is Office of the Official Solicitor, GPO Box 1449, Brisbane Qld 4001. [2] Within seven (7) days of receipt of these submissions, the parties may submit a final submission to the Tribunal commenting on the other parties submission. CATCHWORDS: Order for compensation against Public Trustee of Queensland – where leave granted for a public servant to withdraw application – where verbal application allowed – where procedural requirement waived – where Tribunal refused adjournment for further oral evidence – -- 1 of 7 -- 2 where Tribunal comments on value of reasons Guardianship and Administration Act 2000, ss 59, 115 Queensland Civil and Administrative Tribunal Act 2009, ss 28, 61 APPEARANCES and REPRESENTATION (if any): Mr BS The Public Trustee of Queensland represented by the Official Solicitor Ms P Feeney represented Queensland Health and Mr Ben Turner REASONS FOR DECISION [1] Mr BS was born on 11 June 1965. In December 2005 he suffered an acquired brain injury as a result of a motor cycle accident. [2] On 17 July 2006 the former Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as BS’s administrator. [3] BS receives support from Mr Ben Turner from the Acquired Brain Injury Outreach Service of Queensland Health. He has been working with BS in his capacity of Rehabilitation Coordinator since March 2009. [4] Mr Turner has written various letters to the Tribunal reflecting family concerns about how the Public Trustee was managing BS’s financial affairs. The Public Trustee has responded to some of these. [5] Mr Turner submitted an application to the Tribunal on 10 September 2010 seeking compensation for BS. His reasons for seeking an order for compensation was outlined in his application as follows: BS and his family are seeking for the Tribunal to make a decision with respect to appropriate compensation from the Public Trustee of Queensland for BS. BS and his family are of the belief that the actions and inactions of the Public Trustee of Queensland, during the time in which they have been BS’s appointed administrator, have resulted in significant financial loss and hardship for BS. The concerns of BS and his family are clearly documented in a letter to the tribunal by Ben Turner dated 15th July 2010. To enable all parties to move forward, BS and his family are seeking for the Tribunal to make a compensation decision in relation to the unresolved matters between BS and the Public Trustee of Queensland. [6] This application was heard in Ipswich on 28 March 2011. This matter has not been finalised as final submissions from the parties are yet to be received. Following the receipt of these submissions the Tribunal will -- 2 of 7 -- 3 make its decision on the application for a compensation order and will provide written reasons for its decision. [7] The Public Trustee has requested written reasons for what he characterises as 10 decisions made by the Tribunal at the hearing. The majority of these are procedural and were explained to the parties at the hearing. [8] It is appropriate to note at this time that the Public Trustee did not oppose any of these decisions. [9] The 10 decisions referred to in the Public Trustee’s request for written reasons are bolded below and the Tribunal’s reasoning follows: 1. Granting leave to Ben Turner and his employer Queensland Health, to withdraw his Application; 2. Substituting Mr BS as the Applicant; 3. In doing so, the Tribunal said it was relying on section 115 of the Guardianship and Administration Act 2000; 4. A decision to rely on section 61 of the Queensland Civil and Administrative Act 2009 in respect to the procedural requirements of the Application; [10] The Official Solicitor through Mrs Jennifer Waldron sought leave to represent The Public Trustee of Queensland and Ms Patricia Feeney of counsel sought leave to represent the applicant, Ben Turner and Queensland Health. The Tribunal considered it would be in the interests of justice for this to occur and leave was granted. [11] Ms Feeney advised the Tribunal that Queensland Health for whom Ben Turner worked, was advised late in the previous week by the Official Solicitor, about the application. [12] She submitted this application constituted a serious conflict of interest and it was inappropriate for one area of government to be bringing an application of this type against another area of government. [13] She was seeking leave for Mr Turner to withdraw his application. [14] The Public Trustee of Queensland did not object to her proposal that BS’s brother, BS become the applicant. Mr BS was agreeable to this. [15] The Tribunal granted leave to Mr Turner to withdraw his application verbally and accepted a verbal application from Mr BS seeking an order for compensation. In this regard the Tribunal invoked section 115 of the Guardianship and Administration Act 2000 and section 61 of the Queensland Civil and Administrative Tribunal Act 2009. -- 3 of 7 -- 4 [16] Section 115 of the Guardianship and Administration Act 2000 provides: Scope of applications (1) An application may be made, as provided under the QCAT Act, to the tribunal for a declaration, order, direction, recommendation or advice in relation to an adult about something in, or related to, this Act or the Powers of Attorney Act 1998. (2) The application may be made by— (a) the adult concerned; or (b) unless this Act or the Powers of Attorney Act 1998 states otherwise—another interested person. [17] The Tribunal considers BS, as the adult’s brother is an interested person who can make an application for an order. [18] All parties including the Public Trustee wanted the application agitated. The Tribunal obliged by accepting a verbal application on the day. Indeed this course of action was urged upon the Tribunal by Ms Feeney and not objected to by the Public Trustee. [19] Section 61 of the QCAT Act 2009 allows the Tribunal to waive compliance with another procedural requirement under this Act, an enabling Act or the rules. [20] The parties were agreeable to the application for compensation to be heard. An applicant usually needs to file material with the Tribunal. To allow the matter to proceed in accordance with the wishes of the parties including the Public Trustee, this procedural requirement was waived. [21] Section 61(3) provides that this cannot be done if it would cause detriment or prejudice to a party. No such detriment or prejudice existed in this case. [22] Section 61(4) allows the Tribunal to exercise this power on its own initiative. 5. Allowing Mr BS to adopt and rely upon all of the materials provided by Mr Turner in his original applicant; [23] The Tribunal made no such decision or finding as suggested by the Public Trustee. The Tribunal asked BS if there was anything in Mr Turner’s statements that he wished to challenge. He replied, “no, these are the views of the family.” [24] However all that was withdrawn was the application by Mr Turner, not the supporting documents. -- 4 of 7 -- 5 6. A decision to proceed to hear the Application as if it had been made under section 59 of the Guardianship and Administration Act 2000. (Mr Turner’s application was made pursuant to section 138) [25] The Public Trustee suggests the application was made by Mr Turner under section 138. To some extent this is irrelevant as his application was withdrawn and BS’s verbal application was for a compensation order which clearly falls under section 59. In any case, the Tribunal will outline why it considers Mr Turner’s application is an application under section 59. [26] He completed a QCAT form entitled “Application for Miscellaneous Matters”. There is no box on the front of this form to tick for a compensation order. [27] Mr Turner ticked the box headed advice, directions or recommendation. It so happens that this is the hearing under section 138 of the GAA Act. On any reading of Mr Turner’s application it is abundantly obvious what he is seeking. Section 8 of the Miscellaneous form asks “Why are you seeking this order”. Mr Turner commences with the words: “BS and his family are seeking for the Tribunal to make a decision with respect to appropriate compensation from the Public Trustee of Queensland for BS.” [28] Parties were advised at the hearing that the Tribunal was more concerned about the substance of an application rather than the forms used. [29] It should be further noted that the notice of hearing sent to the parties on 1 February 2011 listed the matter to be heard as an application for compensation order. 7. None of these above-mentioned sections were relied upon by Counsel for Queensland Health and Mr Turner. The Tribunal made a decision to invoke those sections on its own initiative; [30] Counsel proposed the Tribunal apply section 42 of the QCAT Act to join Mr BS as a party and use section 61 to waive procedural requirements. The Tribunal did not consider section 42 appropriate for this matter and proposed to all parties to proceed using section 115 of the GAA Act and section 61 of the QCAT Act. Ms Feeney had indeed proposed section 61. All parties including The Public Trustee of Queensland agreed with the Tribunal’s approach. [31] It is not necessary to further deal with Mr Turner’s applying under section 138. 8. A decision not to grant the Public Trustee’s request for an adjournment to allow him to adduce further evidence and make further submissions in respect to the Application; -- 5 of 7 -- 6 9. A decision that no further Hearing will be convened to determine the Application; and 10. A decision that the Application will now be determined ‘on the papers’. [32] One of the objects of the QCAT Act is to: ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice. [33] The conduct of hearings is governed by section 28 of the QCAT Act. Section 28(3) outlines matters the Tribunal must take into account. These are reproduced below. (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [34] Towards the end of the hearing on 28 March, the Tribunal invited the parties to make final oral submissions. Mr Carne submitted the matter should be adjourned for further oral evidence to be produced in respect of the Public Trustee’s management and in particular more evidence about what chattels were in the property, and how these were handled, what were removed and their value, more evidence about the property settlement and the avenues of compensation available to BS if his former partner should not have taken items, steps taken by the Public Trustee to protect assets, the Public Trustee’s duty and what options were available to the Public Trustee once he was put on notice that his personal property was at risk. Most of these matters had been canvassed during the hearing. [35] The Tribunal being mindful of the objects of the Act and section 28 considered:  The volume of relevant material before the Tribunal;  The length of time that has elapsed since the family first started raising concerns about the Public Trustee;  The length of time parties have had to prepare for this hearing;  The time spent at the hearing receiving evidence and submissions. -- 6 of 7 -- 7 It determined that there should not be a further oral hearing and that any further material should be put before the Tribunal by written submissions, with each party having the further opportunity for final comment on each other’s submissions. The parties agreed with this approach. [36] Whilst the Tribunal acknowledges the Public Trustee’s right to these reasons, the Tribunal does not consider these reasons advance any issue in these proceedings for either party. None of the questions raised by the Public Trustee go to the substance of the matter. The Tribunal does not consider there to be any public interest in these reasons nor do they promote the interests of justice. -- 7 of 7 --