PDC

[2011] QCAT 179

CITATION: PDC [2011] QCAT 179

PARTIES: PDC

APPLICATION NUMBER:   GAA3094-11

MATTER TYPE: Guardianship and administration matters for adults

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: C Endicott, Senior Member

DELIVERED ON: 3 May 2011

DELIVERED AT: Brisbane

ORDERS MADE:      The tribunal orders that documentation received by the tribunal under cover of a letter dated 29 March 2011 and that letter itself are to be kept confidential and are to be withheld from any active party and any other person until further order of the tribunal.

CATCHWORDS: 

CONFIDENTALITY – where document received by the tribunal containing confidential information – where it is necessary to withhold access to avoid injustice to a person

Guardianship and Administration Act 2000, s 109

APPEARANCES and REPRESENTATION (if any):

The hearing was held on the papers in the absence of the parties in accordance with section 32(2) of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. TE applied to the tribunal for the appointment of a guardian and administrator for PDC. The applications have been dismissed under section 47 of the Queensland Civil and Administrative Tribunal Act 2009 after a hearing conducted in the absence of the parties on 19 April 2011.

2. In the course of case managing the applications before they were dismissed, the tribunal registry staff made enquires about information that was relevant to the appropriateness of one of the persons proposed for appointment as a decision maker for PDC.  In response to those enquiries, a letter was received by the tribunal registry dated 29 March 2011 containing information that was described in the letter as being provided on an in confidence basis.  

3. TE has applied under section 109 of the Guardianship and Administration Act 2000 for a confidentiality order to permit the tribunal to withhold access to the letter and enclosed documents by any active party and other person.

4. The starting point when considering such an application is the relevant legislation. Section 103(2) of the Guardianship and Administration Act 2000 provides that each active party or person with a sufficient interest in the proceeding, must be given, within a reasonable time after a hearing, a reasonable opportunity to access a document before the tribunal that is credible, relevant and significant to an issue in the proceeding. Under section 103(5) of that Act, the tribunal may displace the right to access a document or other information only by a confidentiality order.

5. According to section 109 of that Act, a confidentiality order can be made if the tribunal is satisfied it is necessary to avoid serious harm or injustice to a person. Each active party and any person who would be adversely affected by a proposed confidentiality order have standing to be heard in relation to the making of the order.[1]     

   [1] Section 111 of the Guardianship and Administration Act 2000.

6. On 20 April 2011 the tribunal registry sent a copy of the application for a confidentiality order to the active parties in this proceeding and to other persons who were considered to have a relevant interest in the proceedings.  These persons were invited to make comments on the proposed order.  A response was received from PA who was opposed to the making of a confidentiality order.

7. The documentation over which a confidentiality order is sought was obtained under the inquisitional powers of the tribunal.  Under those powers, certain persons are required to give the tribunal written information about another person that is inherently confidential in nature. 

8. Any documents received by the tribunal are accessible by active parties and any other person or member of the public who is able to inspect the file unless access is restricted under a confidentiality order.  The tribunal is a court of record.[2]  Its records are open and accessible. 

   [2] Section 164 of the Queensland Civil and Administrative Tribunal Act 2009.

9. The documents which are the subject of this application contain information that is not required to be disclosed by a person for most purposes.  The information can be lawfully withheld from access by others for most purposes.  The information is only in the possession of the tribunal because of the ability of the tribunal to call for this type of information under statutory compulsion.  

[10]  The tribunal considers that it would result in injustice if the information of this type in the documents held on the tribunal’s files was required to be disclosed to other persons and even to the public at large.   Public policy considerations support the non disclosure of this type of information except when the information must be examined and relied on by the tribunal and by the parties in the proceeding.        

[11]  The applications for which the information was obtained have been dismissed without an oral hearing.  There is no longer any basis on which the parties would need to examine and rely on this information in the proceeding.  The tribunal is satisfied that it is necessary to avoid injustice by making an order preventing access to the documents in question.  The tribunal concludes that a confidentiality order should be made about the documents to last until further order of the tribunal.