BG v The Public Trustee of Queensland [2011] QCATA 190

CITATION: BG v The Public Trustee of Queensland [2011] QCATA 190 PARTIES: BG (Applicant/appellant) v The Public Trustee of Queensland (Respondent) APPLICATION NUMBER: APL052-11 MATTER TYPE: Appeal HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Justice Alan Wilson, President Clare Endicott, Senior Member DELIVERED ON: 20 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal refused. CATCHWORDS: APPEAL – LEAVE TO APPEAL – GUARDIANSHIP AND ADMINISTRATION – where AL was appointed as the administrator for her mother, BG – where AL was subsequently appointed as administrator by the Victorian Civil and Administrative Tribunal and applied to this Tribunal to recognise the Victorian order and to review the appointment of The Public Trustee of Queensland – where this Tribunal recognised the Victorian order and The Public Trustee was appointed as administrator for managing the property in Queensland and for managing the proceeds of sale from that property – where the applicant now seeks leave to appeal that decision – where findings of fact challenged – where appointee found to be competent – where no substantial injustice or question of general importance – whether leave to appeal should be granted -- 1 of 4 -- 2 Guardianship and Administration Act 2000, s 169 Queensland Civil and Administrative Tribunal Act 2009, s 142 APPEARANCES and REPRESENTATION (if any): The application for leave to appeal was heard on the papers in accordance with s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] AL was appointed by the Tribunal as the administrator for her mother, BG, for all financial matters for three months under an interim appointment made on 1 March 2010. The Tribunal noted that an Enduring Power of Attorney given by BG to another daughter, PS, for financial decisions had been overtaken by the appointment of the administrator and could not be acted upon. [2] A hearing of the application by AL to be appointed administrator for BG occurred on 16 April 2010. The application was opposed by PS who lodged an application seeking the appointment of The Public Trustee of Queensland. [3] The Tribunal appointed The Public Trustee of Queensland as administrator for all financial matters for BG, and revoked the Enduring Power of Attorney to PS. The appointment was for an indefinite term. [4] On 25 May 2010 AL removed BG from Queensland and placed her in a nursing home in Victoria. According to the evidence of PS, this was done without prior consultation with her. She lives in Western Australia and had, she says, told AL that she had arranged to come to Queensland to visit BG on 28 May 2010. Nor did AL consult with BG’s administrator, The Public Trustee; in fact, she did not inform the administrator until after the change in residence had taken place. [5] AL was subsequently appointed by the Victorian Civil and Administrative Tribunal as administrator for BG on 20 September 2010. AL then applied to this Tribunal to recognise the Victorian order and to review the appointment of The Public Trustee of Queensland made on 16 April. [6] On 8 November 2010 this Tribunal recognised the Victorian order under s 169 of the Guardianship and Administration Act 2000. The effect of recognition is that the Victorian order is treated as if it were an order made by this Tribunal. [7] A review was also undertaken of the appointment of The Public Trustee of Queensland and the order made on 16 April 2010 was changed so that The Public Trustee was appointed as administrator for BG only for managing her property in Queensland and for managing the proceeds of sale from that property (instead of being administrator for all financial matters). -- 2 of 4 -- 3 [8] BG, by her administrator AL, seeks to appeal the decision of this Tribunal to appoint The Public Trustee of Queensland as her administrator in that limited capacity. [9] The application for leave to appeal contains an allegation that there has been a failure by The Public Trustee of Queensland to fulfil its responsibilities as administrator, and an assertion that the appointment of that administrator was not appropriate. [10] Those allegations and assertions challenge the conclusions as to competence and appropriateness reached by the Tribunal that were based on findings of fact that The Public Trustee of Queensland had taken appropriate steps with regard to BG’s property, and had exhibited competence in its role as administrator. [11] Under s 142(3)(b) of the QCAT Act, a party may appeal a decision of the Tribunal on a question of fact, or on a question of mixed law and fact, but only with the leave of the Appeal Tribunal. This appeal is one that seeks to overturn the findings of fact just mentioned and needs, then, the leave of the Appeal Tribunal before the appeal can proceed. [12] Leave to appeal will ordinarily only be granted where there is some question of general importance on which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or there is a reasonably arguable case of error in the primary decision and a reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some error? [13] This Tribunal was apparently satisfied, on the evidence produced before and during the hearing, that The Public Trustee of Queensland in the period from 16 April 2010 to 8 November 2010 had acted competently and appropriately when it informed the Registrar of Titles that an administration order had been made; arranged a valuation of the real property owned by BG; listed the property for sale with an agent who is marketing the property; paid BG’s expenses, nursing home fees and private health insurance; been active in identifying and securing BG’s assets; and, managed her income and expenditure until September 2010 when her pension was re-directed following the Victorian appointment. [14] The submissions made in support of the application for leave to appeal contain assertions that the actions of The Public Trustee of Queensland during the period from 16 April 2010 to 8 November 2010 were inadequate, as insufficient funds were made available by the administrator to meet the financial needs of BG. The deficit position in BG’s financial circumstances during that period appears, from the evidence, to be related to the change in her accommodation with an increase in care and accommodation fees from $900 per fortnight to $1,200 per fortnight. [15] That change in circumstances arose, it appears, because of the acts of AL as administrator. Certainly, there is not evidence to suggest that the decision to change BG’s accommodation and to incur increased care fees beyond her means was made by The Public Trustee of Queensland, or -- 3 of 4 -- 4 made with any input by way of advice from it, acting as an administrator. The criticism of it is unjustified, and baseless. [16] Further, the applicant has not established that there is any other reasonable basis to dispute the findings made by the Tribunal that The Public Trustee of Queensland acted competently in the discharge of duties as administrator for BG prior to 8 November 2010. Nothing in the transcript of the Tribunal proceedings or the transcribed oral reasons reveals any apparent error in the Tribunal’s decision, or the process by which it was reached. [17] No important or novel questions are inherent in the matters raised in the application for leave to appeal. Leave to appeal is refused. -- 4 of 4 --