CWR [2010] QCAT 385

CITATION: CWR [2010] QCAT 385 PARTIES: CWR APPLICATION NUMBER: GAA2894-10 GAA2895-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 2 August 2010 HEARD AT: Brisbane DECISION OF: C Endicott , Senior Member DELIVERED ON: 2 August 2010 DELIVERED AT: Brisbane ORDERS MADE: Applications for a declaration of capacity and review of appointment of administrator are dismissed. CATCHWORDS : DISMISSAL - Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 – early end to proceeding - where non compliance with directions – where abuse of process APPEARANCES and REPRESENTATION (if any): The hearing took place on the papers in the absence of the parties. -- 1 of 3 -- REASONS FOR DECISION 1. On 19 October 2007 the then Guardianship and Administration Tribunal appointed The Public Trustee of Queensland as Administrator for all financial matters for CWR until further order. CWR has an acquired brain injury. 2. On 7 April 2010 CWR applied for a declaration that he had capacity to manage his own financial affairs. A review was initiated at the same time of the appointment of The Public Trustee of Queensland as administrator for CWR. 3. The Queensland Civil and Administrative Tribunal (the Tribunal) which took over the functions of the former Guardianship and Administration Tribunal commenced hearing the applications on 24 May 2010. The Tribunal adjourned the hearing to a date to be fixed and issued directions that CWR be assessed by a neuropsychologist in relation to his capacity to make decisions about simple and complex financial matters. 4. The Tribunal registry sent an email to CWR as a reminder to provide information about this assessment on 29 June 2010 and a letter on 19 July 2010. He was advised that the applications could not proceed until the assessment was undertaken and a report provided. The letter of 19 July 2010 indicated that the Tribunal may dismiss the applications if no response was received from him. 5. The Tribunal is required to deal with matters in a way that is accessible, fair, just, economical, informal and quick. To achieve that object, the Tribunal is required to ensure that proceedings are conducted in a way that is as quick as is consistent with achieving justice. 6. Section 47 of the Queensland Civil and Administrative Tribunal Act 2009 (the Act) provides that the Tribunal may dismiss a proceeding if the Tribunal considers that it is an abuse of process. CWR has failed to comply with the directions made by the Tribunal on 24 May 2010. The directions sought further medical evidence. 7. Section 28 of the Act requires the Tribunal to ensure that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. The Tribunal considered on 24 May 2010 that it did not have all the relevant facts that it needed to decide the applications before it. The threshold test in considering the applications is whether CWR now has capacity to manage his own financial affairs. CWR was directed to obtain specific evidence about his decision making capacity. 8. It is now almost 3 months since the hearing on 24 May 2010 which CWR attended. There is no evidence before the Tribunal that he has complied with the direction or has commenced to comply with the direction. 9. Under these circumstances the Tribunal considers that CWR’s failure to comply with the directions and his failure to provide the evidence required by the Tribunal amounts to an abuse of process. His failure to act is preventing the Tribunal from achieving the object of dealing with the proceeding in a quick and just manner and is preventing the Tribunal from making a determination on his applications. -- 2 of 3 -- 10. His applications should in the circumstances be dismissed under section 47 of the Act. -- 3 of 3 --