Croll v Guardianship and Administration Tribunal & Anor [2006] QSC 134

[2006] QSC 134 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION McMURDO J No S1441 of 2006 TREVOR HENRY CROLL Applicant and GUARDIANSHIP AND ADMINISTRATION First Respondent TRIBUNAL and THE PUBLIC TRUSTEE OF QUEENSLAND ..DATE 10/05/2006 JUDGMENT WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 -- 1 of 12 -- HIS HONOUR: On 16 February 2006, the Guardianship and Administration Tribunal sitting at Brisbane made orders in relation to Mrs Lynette Croll . It ordered that the adult guardian be appointed as her guardian for these personal matters : "(a) Accommodation decisions; (b) With whom Lynette Croll has contact and/or visits; (c) Health care of Lynette Croll; (d) Provision of services for Lynette Croll." It ordered that that guardianship "remain current for two years". It also ordered that the Public Trustee of Queensland be appointed as administrator for Mrs Croll for all the financial matters, that the administrator provide a financial management plan to the Tribunal within six months, and that the administrator provide accounts to the Tribunal when requested. That order was expressed as "current until further order of the Tribunal". Further orders were made to the effect that the administrator was to identify any interest in real property registered in the name of Mrs Croll and report to the Tribunal in due course as to various things done with the real property. The proceeding in this Court is brought by Mr T H Croll, who is Mrs Croll's son. Until these orders were made or perhaps at least until late 2005, he was the holder of a power of attorney granted by his mother in January 2004. By reason of the appointments which had been made that is no longer of any 10052006 D.l T3/KHW (McMurdo J) 2 JUDGMENT -- 2 of 12 -- 10052006 D.l T3/KHW (McMurdo J) effect . He applies to the Court by way of an appeal or alternatively an application for leave to appeal against those orders. He has a right of appeal only in relation to questions of law, otherwise he must obtain leave to appeal. See section 164 of the Guardianship and Administration Act 2000. Ultimately as he has developed his arguments, the grounds of his case involve alleged errors of fact rather than errors of law. He represented himself in these proceedings and, like many persons without legal training, he has shown some difficulty, which is understandable, in distinguishing errors of law from errors of fact. But ultimately he was able to articulate his complaints as to the Tribunal's reasons and, therefore, as to the Tribunal's orders, in a way which clearly enough identified what he said were the errors involved. The Adult Guardian and the Public Trustee each appeared as respondents to this application. As I will discuss, there is no significant contest between the Public Trustee and Mr Croll, and his principal concern relates to the appointment of the Adult Guardian and the stated proposal of the Adult Guardian that Mrs Croll live in Victoria. The Tribunal gave reasons for these orders on 15 March 2006. The reasons set out the history of the application, the 1 10 20 30 40 50 3 JUDGMENT 80 -- 3 of 12 -- 1 parties who were active participants in the hearing before it, a statement of the issues and the relevant legislation, and a summary of the evidence before the Tribunal before the reasons then discussed that evidence, set out findings of fact and expressed conclusions under the head, "Application Of the Law" . In broad terms, the Tribunal was concerned with two questions, one whether there was some impaired capacity for a personal matter and/or a financial matter and, secondly, whether the 2( Tribunal should appoint, as it did, the Adult Guardian and the Public Trustee or some other person such as Mr Croll or one of his sisters who was proposing to act at least as a guardian for personal matters. 30 The first of those matters now does not involve any controversy. There was no suggestion by Mr Croll that there was some error in the Tribunal's conclusions as to the existence and extent of the impairment of his mother's capacity in relevant respects. 40 The complaints which he makes as to the Tribunal's decision involve what I have described as the second issue which is the Tribunal's decision to make the Adult Guardian for personal matters. Ultimately, he seemed to make no complaint that the 50 Tribunal was wrong to appoint the Public Trustee as administrator, although he now complains of some misstatement in the Tribunal's reasons in that respect, which I will discuss. He also has a complaint about one aspect of the 10052006 D.l T3/KHW (McMurdo J) 4 JUDGMENT 60 -- 4 of 12 -- Public Trustee's administration which has occurred since this 1 order. Again, I will discuss that, but ultimately it is of no moment for today's case. 10052006 D.l T3/KHW (McMurdo J) The circumstances in which this matter came before the Tribunal were undoubtedly ones of substantial acrimony amongst the family of Mrs Croll. It is unproductive to attempt to explore the origins of that. It is sufficient to say that as the circumstances presented themselves to the Tribunal, it was undoubtedly the case and remains the case that Mr Croll is sharply at odds with his sisters, and it seems with his own son, in relation to what should be done to look after Mrs Croll and her property. 10 20 The Tribunal described in some detail the evidence given by various family members, including Mr Croll, in that respect. At paragraphs 40 through 43 the Tribunal described the nature and extent of that conflict within the family in terms which need not be repeated here, but which demonstrate that the Tribunal was well aware of the extent of the ill will and was conscious of the potential for that to be to the disadvantage of Mrs Croll, should either side of the argument be appointed as her guardian or administrator. 30 40 At paragraph 43, the Tribunal concluded that the breakdown in 50 family relationships appears to be irreversible and that despite protestation by some family members to the contrary, it is likely that the appointment of a decision-maker from one family faction will result in members from the unsuccessful 5 JUDGMENT 80 -- 5 of 12 -- 1 faction being denied reasonable access to Mrs Croll and the opportunity of reasonable input into decisions made on her behalf . 10052006 D.l T3/KHW (McMurdo J) At paragraph 56 of the reasons, the Tribunal expressed its 10 finding, by reference to section 12 of the Act, that: "There was a need for decisions in relation to the personal and financial matters and that without an appointment Mrs Croll's needs would not be adequately met and her interests would not be adequately protected." The Tribunal then discussed a question of the extent of an appointment, a matter which does not give rise to any issue in today ' s proceedings . Before turning to the question of who should be appointed as guardian and in turn as administrator, an appropriate 30 guardian was described in paragraph 59 of the Tribunal's reasons in these terms : "Neither of the family members who sought appointment as Mrs Croll's guardian was considered appropriate by the Tribunal as they did not meet the requirements set out in section 15(1) of the Act. Neither was considered likely to apply the General Principles (Schedule 1), and in Ms Leonie Dore' s case, the evidence raised concerns about 40 whether she and Mrs Croll are compatible. The Tribunal considered that at this time, it was imperative for Mrs Croll to have an independent decision maker who would be able to look at issues objectively, take into account the views of Mrs Croll's family, support network and other relevant factors, and make decisions after applying the General Principles. 50 The Tribunal's consideration of who should be the administrator was set out in paragraph 60 as follows: "For similar reasons, these applicants were also not considered appropriate for appointment as Mrs Croll's administrator. In Mr Trevor Croll's case, the evidence raised concerns about the extent to which his interests 6 JUDGMENT 60 -- 6 of 12 -- 10052006 D.l T3/KHW (McMurdo J) and those of Mrs Croll were in conflict. This concern 1 stems in part from dealings with Mrs Croll's real and personal property in Trevor's Croll's favour at a time when he was her attorney. There are a number of financial issues which require investigation, and this should be carried out by a professional and independent party. " 10 The Tribunal then concluded that the Adult Guardian and the Public Trustee were appropriate appointees. It is convenient to first discuss the appointment of the Public Trustee. The applicant was critical of the Tribunal's 20 statement within paragraph 60 that the dealings with Mrs Croll' s property in favour of Mr Croll occurred "at a time when he was her attorney" . He told me that these dealings occurred in 2004 and he agreed that at the time they took place, he held the power of attorney which I have already mentioned. His real point is, he says, that the dealings did not involve any exercise of his powers as his mother's attorney. But I do not understand the Tribunal to have said otherwise within paragraph 60. What the Tribunal has said, which is plainly relevant, is that the dealings occurred at a time when he held the authority conferred by that power of attorney. 30 40 The dealings themselves involved, on any view, substantial 50 amounts of cash or dealings in valuable assets. Mr Croll told me that they included a transfer by way of a gift of two farms in Victoria from his mother into the names of Mr Croll and his mother as joint tenants. He also told me that the dealings 7 JUDGMENT 60 -- 7 of 12 -- 1 with other property involved a gift by her to him of cash investments, and, in particular, investments on commercial bank bills of the value of approximately $1.7 million. I do not suggest that there was some impropriety on Mr Croll's 10 part in those dealings, and nor was that suggested by the Tribunal's reasons, but the Tribunal rightly considered that there was some matter to be investigated by reason of those dealings and that that susceptibility to investigation would make it difficult for any person in Mr Croll 's position to 2Q impartially discharge each and every responsibility as a guardian and administrator were he to be appointed. They were the matters which were at least amongst the so-called "financial issues which require investigation" referred to in paragraph 60. 30 Save in that respect Mr Croll was not critical of any reasoning of the Tribunal relevant to the appointment of the Public Trustee as administrator. 40 As I have already mentioned, he was critical of one transaction which has occurred since this appointment and it is necessary to mention it. It seems that there was a claim for about $350 made against Mrs Croll by the operator of a caravan park. In essence, Mr Croll says that this was an 50 unmeritorious claim and that it should have been rejected by the Public Trustee who, instead, paid it. This is no occasion to visit the merits of that claim if that were possible, but it hardly appears that there is any error on the part of the 10052006 D.l T5/TVH (McMurdo J) 8 JUDGMENT 60 -- 8 of 12 -- Public Trustee in deciding to meet that claim, having regard 1 to its relatively small amount, rather than disputing it. Save for that, there is no criticism offered by Mr Croll of the performance of the Public Trustee as his mother's 10 administrator and, more importantly, and as I have already mentioned, there is no substantial criticism of the Tribunal's reasons in appointing the Public Trustee. 10052006 D.l T5/TVH (McMurdo J) I turn then to the appeal or proposed appeal in relation to the appointment of the Adult Guardian. 20 The evidence within Mr Croll's affidavit is strongly critical of the Adult Guardian, as it is of many others, and, in particular, his siblings and his son. Much of that material is of, at best, marginal relevance. I don't mean to suggest that it is unimportant to Mr Croll, but it has tended to distract from what is the relevant consideration here, which is whether there was any error of law, or even of fact, in the Tribunal 's decision to appoint the Adult Guardian rather than someone else as guardian. 30 40 As appears from paragraph 59 (set out above) the Tribunal considered that it was imperative that a person be appointed who was outside the dispute within the Croll family, and, as 50 the Tribunal put it, would be able to look at issues objectively, take into account the views of the family and other relevant factors, and make decisions applying the principles prescribed by the Act. 9 JUDGMENT 60 -- 9 of 12 -- 1 Having regard to the nature and extent of the dispute within the family, about which there can be no real doubt for present purposes, the Tribunal's decision to appoint the Adult Guardian seems to be not only one which was open to it, but, indeed, was one which was the only reasonable course it could 10 have taken. Again, in saying that, I intend no criticism either of Mr Croll or of his sister who, in effect, was the competitor of Mr Croll for appointment, but it was surely important that an objective person be appointed in the particular circumstances of this case which the Tribunal had 2i clearly and correctly identified. And relevant to that decision, that is the appointment of an independent person as guardian, was the need for investigation of the financial issues which I have already mentioned. 10052006 D.l T5/TVH (McMurdo J) The principal complaint, as matters now stand, which is made by Mr Croll against the Adult Guardian is that the Adult Guardian has indicated a view that Mrs Croll should go to live in Victoria. The Tribunal's reasons also discussed an application made to it by the Adult Guardian for directions about where Mrs Croll should live. 30 40 By the time of the hearing which resulted in this decision, the Adult Guardian had been acting for some time under an interim order, and, in that capacity, had indicated her 50 intention to have Mrs Croll live in Victoria. At an earlier hearing at which I refused Mr Croll leave to appeal the orders for interim appointments of the Adult Guardian and Public Trustee, the Adult Guardian undertook not to take steps to 10 JUDGMENT 60 -- 10 of 12 -- 1 move Mrs Croll to Victoria pending the final hearing before the Tribunal. On that final hearing the Adult Guardian, it seems from the Tribunal's reasons, sought a direction about that matter. The Tribunal refused to give a direction for reasons which are set out in paragraphs 62 to 65. It appears 10 there that the Adult Guardian had also asked the Tribunal to refer some question of law to this Court, but the particular question of law was not identified and it does not otherwise appear from the material. 20 The proceeding with which I am concerned does not involve a consideration of the merits of any decision by the Adult Guardian that Mrs Croll should live in Victoria. The proposal of the Adult Guardian, however, is one which is capable of resolution pursuant to the Act before the Tribunal. 30 It would be open to the Adult Guardian or, indeed, in my view to the present applicant, Mr Croll, to apply to the Tribunal for directions in that respect. But the fact that the Adult Guardian was then proposing, that is, at the time of the final 40 hearing before the Tribunal, that Mrs Croll move to Victoria (if that be the fact) is not in itself a reason for impugning the Tribunal's decision. Be that as it may, the acknowledged impairment of capacity of 50 Mrs Croll clearly required an appointment of a guardian and, as I have said, clearly required the appointment of an independent person. So the likelihood, if any, that the Adult Guardian would agitate for a move to Victoria is not in itself 10052006 D.l T5/TVH (McMurdo J) 11 JUDGMENT 60 -- 11 of 12 -- 10052006 D.l T5/TVH (McMurdo J) a basis for criticising the Tribunal's decision. 1 The result is that Mr Croll has not identified any error of law on the part of the Tribunal in this decision. Nor, in my view, has he made out any error of fact or, indeed, any arguable error of fact . 10 Given the findings of fact which are not challenged, and, in particular, the findings as to the high level of acrimony within the family, and given the circumstances under which 2( property was given or transferred to him during 2004 and the need for investigation of those circumstances, I can see no error in this decision and, therefore, no basis for the grant of leave to appeal . 30 In consequence, the application filed on 22 February 2006 is dismissed. HIS HONOUR: There will be no order as to costs. 40 50 12 JUDGMENT 60 -- 12 of 12 --