BH [2012] QCAT 179

CITATION: BH [2012] QCAT 179 PARTIES: BH APPLICATION NUMBER: GAA7279-11 / GAA7280-11 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Mr L Clarkson, Member DELIVERED ON: 23 April 2012 DELIVERED AT: Brisbane ORDERS MADE: Applications dismissed. CATCHWORDS: Jurisdiction to make compensation orders against former administrators Guardianship and Administration Act 2000, ss 32B, 59, 81(1)(d), 138AA APPEARANCES and REPRESENTATION (if any): The applications, in relation to the preliminary question of jurisdiction, were determined on the papers, without an oral hearing, under section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009. REASONS FOR DECISION [1] BH (the applicant) brought action in the Supreme Court of Queensland for compensation for personal injuries. [2] In the result, the Court made orders on 13 May 2005, awarding damages (the settlement sum) to the applicant, and appointing Perpetual Trustees Queensland Limited (Perpetual Trustees) as her administrator in relation to the settlement sum. [3] On 19 September 2006, the then Guardianship and Administration Tribunal (the former Tribunal) removed Perpetual Trustees and instead appointed The Public Trustee of Queensland (the Public Trustee) as the applicant’s administrator. The Public Trustee’s appointment was continued by further order made on 17 September 2008. -- 1 of 5 -- [4] On 31 August 2009, the former Tribunal by order declared that the applicant now has capacity for financial matters, and revoked the Public Trustee’s administration appointment. [5] The applicant has applied to the Queensland Civil and Administrative Tribunal (the Tribunal) which now has jurisdiction in relation to such matters for compensation orders against her former administrators. [6] The Tribunal sought submissions from the parties in relation to its jurisdiction to hear the application. [7] The applicant submits that the Tribunal is empowered to award compensation under s 59 of the Guardianship and Administration Act 2000. This section relevantly provides that an administrator for an adult may be ordered by the Tribunal to compensate the adult for a loss caused by the administrator’s failure to comply with the Act in the exercise of a power. [8] The Public Trustee submits that the Tribunal does not have such jurisdiction. The submissions are outlined as follows: (a) The Tribunal does not have general jurisdiction, but has jurisdiction to deal with matters it is empowered to deal with under the Queensland Civil and Administrative Tribunal Act 2009 or an enabling Act, one of which is the Guardianship and Administration Act 2000 (the Act). (b) Section 81(1)(d) of the Act refers to the functions of the Tribunal, which includes making declarations, orders or recommendations, or giving directions to certain decision-makers, including administrators. (c) The term “administrator” is defined in Schedule 4 of the Act to mean “an administrator appointed under this Act”. (d) Section 32B of the Act empowers the Tribunal to make directions (of a limited nature) to former administrators. That is, administrators whose appointment has been terminated – either by way of automatic revocation under s 26, or by way of an administrator withdrawing with leave under s 27, or by way of revocation by the Tribunal under s 31. (e) Section 32B would not be required in the Act if s 81(1)(d) conferred power on the Tribunal to make directions against a former administrator. For this reason, the Public Trustee submits that s 81(1)(d) also does not confer power on the Tribunal to make a compensation order against a former administrator. (f) The Public Trustee cites the decision of the Tribunal in Re LPJ [2011] QCAT (which dealt with an analogous issue in relation to compensation sought against a former attorney) as authority for its submissions. [9] The fundamental question for the Tribunal is: Does the definition of administrator in Schedule 4 (or other relevant provisions of the Act) include an administrator whose appointment has been revoked? -- 2 of 5 -- [10] Section 9 of the Queensland Civil and Administrative Tribunal Act 2009 provides that the Tribunal has jurisdiction to deal with matters it is empowered to deal with under that Act or an enabling Act. Thus, as the Public Trustee (rightly) submits, the Tribunal does not have general jurisdiction, and its authority to deal with a matter must be found in the legislation. [11] On its face, a plain reading of the wording of the definition of an administrator would suggest that it refers to a current administrator. That is to say – if a person, whose administration appointment is terminated, is asked whether he or she is an administrator, the plain and sensible answer must be in the negative. [12] This accords, in essence, with the finding in Re LPJ in relation to the Tribunal’s power to make a compensation order against a former attorney. In her decision, the Senior Member referred to s 138AA of the Act, which empowers the Tribunal to give directions to a former attorney, and concluded that the existence of that provision serves to reinforce the proposition that the power to give directions or make orders in relation to a former attorney is not contained in s 81 of the Act. [13] The principle is similar in relation to s 32B. This is a specific provision which enlarges the power of the Tribunal to give directions to an administrator under s 81(1)(d). As the Public Trustee submits, this provision would be superfluous if the relevant definitions are interpreted to include former appointees. [14] Thus the effect of s 32B (and s 138AA) is to confer power on the Tribunal to give directions to former appointees in certain limited circumstances. The explanatory provisions do not assist in ascertaining the reason for the insertion of s 32B. But if, as appears to be the case, its insertion was considered necessary in order to empower the Tribunal to give directions to a former appointee, the inescapable conclusion must be that the relevant definitions and the provisions of s 81(1)(d) are not sufficient in themselves to confer such power. [15] Further, apart from the power to give directions, the Tribunal’s power to make orders under s 81(1)(d), must, in the absence of a provision similar to s 32B, give rise to the conclusion that the Tribunal is not empowered to do so in relation to a former administrator. [16] It is logical to conclude that, except where expressly provided otherwise, the reference to an administrator in the Act is to be taken to be a reference to an existing appointed administrator. [17] Section 59(1) expressly provides otherwise. It deals specifically with compensation orders against a guardian or administrator. It also provides for orders to be made if the adult has died. In effect, this provision empowers the Tribunal to make a compensation order in relation to a former administrator. That is because, under s 26(1)(d) the administrator’s appointment has been automatically revoked by the death of the adult. However, apart from this limited scenario, s 59(1) does not refer to other types of former appointees. -- 3 of 5 -- [18] The terms of s 59(1) are quite specific in their application. While in the particular circumstances outlined therein, the Tribunal’s power will extend to a former administrator, that is not so in this case. That is because the applicant is not deceased. [19] At first impression, it seems somewhat illogical to suggest that the Tribunal is empowered to make orders in relation to a current administrator only, and does not have similar power in relation to a former administrator. It may also raise questions whether the interpretation of the term “administrator” in this context is one which will best achieve the purpose of the Act. [20] Section 6 of the Act outlines its purpose. That is: to strike an appropriate balance between the right of an adult with impaired capacity to the greatest possible degree of autonomy in decision-making; and the adult’s right to adequate and proper support for decision-making. [21] One of the ways that purpose is to be achieved is outlined in s 7(b), which relevantly provides for a comprehensive scheme to facilitate the exercise of power by or for an adult who needs or may need another person to exercise power for the adult. [22] One of the underpinning philosophies of the Act concerns the Tribunal’s protective jurisdiction in relation to adults with impaired capacity. It is fundamental to the purpose of the Act, and the Tribunal’s functions outlined in s 81(1) are referable exclusively to adults with impaired capacity. [23] It is consistent therefore to hold that the power to make orders (under s 81(1)(d)(i)) in relation to administrators applies only where the adult in question has impaired capacity. It is consistent also to hold that the power to make a compensation order against an administrator under s 59 applies only in cases where the adult has impaired capacity, or where an adult with impaired capacity has died. [24] But in this case, the applicant is not an adult with impaired capacity. The former Tribunal so found, and accordingly revoked the administration appointment. The applicant is not therefore a person whose circumstances would normally be expected to enliven the protective jurisdiction of the Tribunal. The inclination to a relatively narrow interpretation of the relevant terms is not, in these particular circumstances, considered to be at odds with the purpose of the Act. [25] As indicated, it may be argued that an interpretation which limits the power of the Tribunal to make orders in relation to existing appointees in the absence of express provision otherwise, may give rise to unforeseen and unusual results which were not intended by the legislature. [26] However, the Tribunal’s conclusion is consistent with the plain and ordinary meaning of the relevant words; the conclusion is supported by other provisions of the Act; and in the particular circumstances of this case (namely, the fact of the applicant’s decision-making capacity), its conclusion is not inconsistent with the expressed purpose of the Act and the provisions about the way that purpose is to be achieved. -- 4 of 5 -- [27] The Tribunal finds that the essence of the Public Trustee’s submissions are made out. The Tribunal holds therefore that its power to make compensation orders in relation to administrators is limited to current administrators or to administrators who were appointees at the time of an adult’s death. Accordingly, the Tribunal holds that it does not have jurisdiction to hear and determine the applicant’s claim. -- 5 of 5 --