BS & BN v Adult Guardian and The Public Trustee of Queensland [2011] QCATA 186

CITATION: BS & BN v Adult Guardian and The Public Trustee of Queensland [20111] QCATA 186 PARTIES: BS & BN v Adult Guardian and The Public Trustee of Queensland APPLICATION NUMBER: APL009-11 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, senior member and J Allen, member DELIVERED ON: 11 July 2011 DELIVERED AT: Brisbane ORDERS MADE: Application for leave to appeal and appeal is refused CATCHWORDS: GUARDIANSHIP AND ADMINISTRATION – APPEAL – allegations that parties did not receive a fair hearing – allegations not substantiated – no grounds for leave to appeal established Queensland Civil and Administrative Tribunal Act 2009 section 142(3)(b) APPEARANCES and REPRESENTATION (if any): APPLICANT: BS and BN RESPONDENT: Adult Guardian appeared by Kirsty Phillips and The Public Trustee of Queensland appeared by Scott Collins -- 1 of 5 -- REASONS FOR DECISION [1] EE is 95 years old and lives in a nursing home at Sandgate. Her daughter, GL, lives in the same nursing home. EE has five other daughters. Over the past two years there has been significant conflict and dispute between four of EE’s daughters and several of her granddaughters over decisions about her care and accommodation and management of her finances. This conflict has led EE’s family to the tribunal. [2] Since March 2009, there have been four hearings about the appointment of decision makers for EE. On 27 March 2009 the former Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as administrator for EE for an indefinite period of time. On 7 September 2009 that appointment was reviewed and changed so that BN and BS were appointed as administrators for EE for two years. [3] On 7 June 2010 the Queensland Civil and Administrative Tribunal appointed BN and BS as guardians for EE for accommodation, health care and service provision decisions for two years. [4] One of EE’s granddaughters, SK, applied to review the appointments of the guardians and administrators and a hearing was held on 8 September 2010. The tribunal changed the appointments made on 7 September 2009 and 7 June 2010 and appointed the Adult Guardian as guardian and The Public Trustee of Queensland as administrator for EE. [5] BN and BS seek to appeal those appointments on the grounds that they were not accorded a fair hearing by the tribunal and that they had been wrongfully removed as decision makers by the tribunal based on untrue evidence. An error of law occurs when parties are not given a fair hearing. The second ground of appeal raised by BN and BS involves a mixed question of fact and law. Under section 142(3)(b) of the Queensland Civil and Administrative Tribunal Act 2009, a party may appeal a decision of the tribunal on a question of mixed law and fact with the leave of the appeal tribunal. For this reason, leave of the appeal tribunal is required for the second ground of the appeal to proceed. [6] The question whether or not leave to appeal should be granted is usually addressed according to established principles: is there a reasonably arguable case of error in the primary decision,1 is there a reasonable prospect that the applicant will obtain substantive relief,2 is leave necessary to correct a substantial injustice to the applicant caused by some error,3 is there a question of general importance on which further argument, and a decision of the appeal tribunal, would be to the public advantage?4 If a case for leave is not made out based on one or more of these principles, the law expects the primary decision to stand recognising 1 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 2 Cachia v Grech [2009] NSWCA 232 at 2. 3 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. 4 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 5 -- that it is not the role of an appeal tribunal to set aside a validly made decision merely because another tribunal might have come to a different conclusion. [7] BN and BS raised as issues in their application that they believe they have been the subject of a substantial injustice caused by the failure of the tribunal to provide them with a fair hearing and by the tribunal making an error by reaching the conclusion that independent decision makers were required to be appointed. Has there been a substantial injustice, was a reasonably arguable error made and is it likely that the decision would be overturned due to error? [8] BN and BS assert that they had not been given equal time to comment on the issues raised at the hearing compared to the time provided to SJ, SK, WB and WM and that they were not given the right of reply to the accusations made against them. BN and BS also assert that SJ, SK, WB and WM were not questioned about the allegations and accusations they had made. [9] These assertions are misconceived and are rejected. Under the Queensland Civil and Administrative Tribunal Act 2009 the tribunal may inform itself in any way it considers appropriate and its procedure is at the discretion of the tribunal.5 Hearings in guardianship matters are conducted using an inquisitorial approach while at the same time keeping to the requirement that the tribunal must observe the rules of natural justice,6 must act fairly and must act according to the substantial merits of the case.7 [10] It appears quite clear to the appeal tribunal that the members hearing the applications on 8 September 2010 gave all participants adequate time to present their views and to explain their actions. The issues that were of interest to the members and on which they had to reach conclusions were identified during the hearing: whether EE had capacity to make her own decisions, if not, should decision makers be appointed and who would be appropriate for appointment. [11] Attention was necessarily given by the members during the hearing to the actions of the guardians and administrators, particularly to how they had gone about the process of making decisions as substitute decision makers for EE. The significant conflict between the appointed decision makers and other members of their family was plainly obvious at the hearing and was not denied by the participants at the hearing. Regularly during the hearing nearly all the participants spoke over and interrupted each other, angrily denied accounts made about a variety of incidents and ignored the repeated direction of the presiding member to refrain from addressing each other directly but rather to make their comments via her. [12] It was the ongoing presence of substantial family conflict that the tribunal found had impacted on the process of decision making and which they were obviously concerned would threaten the cogency of the decisions 5 Queensland Civil and Administrative Tribunal Act 2009, ss 28(1) and 28(3)(c). 6 Queensland Civil and Administrative Tribunal Act 2009, s 28(3)(a). 7 Queensland Civil and Administrative Tribunal Act 2009, s 28(2). -- 3 of 5 -- made after 8 September 2010. The central issue was whether that conflict would prevent decision making from being made in accordance with the law and the General Principles. [13] For that reason, it was not necessary for the tribunal members to exhaustively question the participants about every accusation raised at the hearing. It was readily apparent there was ongoing conflict of such a nature and degree that family members inevitably became angry when speaking to each other and were incapable of maintaining a civilised conversation in private or in public. In that context, BN and BS were afforded a fair hearing and were given an adequate opportunity to present their comments and responses on the issues that the members considered were relevant in the case. [14] BN and BS also assert that one of the hearing members of the tribunal was particularly hostile at the hearing in his attitude to them. They described the member as having an unfair and discriminatory tone and manner towards them during the hearing, as being blatantly abrupt and hostile compared to his tone of speech towards the other participants which was described as calm, supportive and pleasant. [15] BN and BS assert that this member was most dismissive of most things that they had said at the hearing. They made a request that the appeal tribunal not only read the transcript of the hearing but also listen to the audio recording of the hearing in order to hear the tone used during the hearing. [16] We have listened to the audio recording of the hearing. We have not discerned any hostile or discriminatory tone in the voices of either of the members. At times both members used an assertive tone and language in order to control the proceedings when the participants talked over each other and when they became tangential. It was quite proper for the members to direct that a specified person is not interrupted and to stop what the members consider to be irrelevant or repetitive explanations. [17] The purpose of a hearing is to obtain information relevant to the issues to be determined by the tribunal. The tribunal is, subject to statutory requirements mentioned earlier, entitled to control its hearing in such a manner that would best meet this purpose. The assertions by BN and BS that one of the members of the tribunal had acted in a hostile and biased manner is not sustained and is rejected. [18] The parties were accorded a fair hearing by the tribunal on 8 September 2010 and no error of law occurred. The appeal on the first ground of appeal is refused. [19] The issues relevant to the second ground for appeal have been already been considered in paragraphs 10 to 13 of these reasons. The tribunal members had been satisfied that the presence of significant conflict severely impaired the ability of any of the family members to consult with their fellow family members so that all family members could have meaningful input into decisions. Providing information about a decision that already has been made is not the way to seek meaningful input into the decision making process. -- 4 of 5 -- [20] It is the conclusion of the appeal tribunal that no basis has been established on which it could be determined that BN and BS had been subject to a substantial injustice or that a reasonably arguable error had been made by the tribunal when appointing independent decision makers as the guardian and administrator for EE. [21] No important or novel questions are inherent in the matters raised by BN and BS that warrant an appeal hearing. [22] Leave to appeal is refused. -- 5 of 5 --