RAG

[2020] QCATA 135

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RAG [2020] QCATA 135

PARTIES:

RAG

(applicant/appellant)

v

THE PUBLIC TRUSTEE OF QUEENSLAND
PUBLIC GUARDIAN
PWG
HDG

(respondent)

APPLICATION NO

APL122-20

ORIGINATING APPLICATION NOS:

GAA3476-19; GAA3478-19; GAA6945-19; GAA1678‑20

MATTER TYPE:

Appeals

DELIVERED ON:

15 September 2020

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard
Member Fitzpatrick

ORDERS:

The application for a stay of the decision dated 25 March 2020 in GAA3476-19; GAA3478-19; GAA6945-19 and GAA1678-20 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS- GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where former attorney for personal and health matters and for financial matters replaced by the Public Guardian and the Public Trustee of Queensland – former attorney seeking stay and orders on appeal to re-instate enduring powers of attorney 

Guardianship and Administration Act 2000 (Qld), s 128

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58, s 145(1) and (2)

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Hessey-Tenny v Jones [2018] QCATA 131

REPRESENTATION:

Applicant:

Self-represented

Respondents:

Public Guardian: J Houghton, Acting Regional Manager, Office of Public Guardian

PAG: Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. On 25 March 2020, the Tribunal made a decision appointing the Public Guardian and The Public Trustee of Queensland as guardian and trustee of HDG respectively.

2. As a result, appointments of RAG pursuant to an Enduring Power of Attorney dated 20 November 2015 for personal and health matters for HDG; and an Enduring Power of Attorney dated 29 October 2009 for financial matters for HDG, were overtaken and can no longer be acted upon.

3. Relevant facts in making the decision are HDG’s relocation to Queensland by RAG against medical advice and the transfer of HDG’s funds to RAG’s account.

4. RAG has applied for leave to appeal the decision. Ultimately, if leave is granted and the appeal is successful, he seeks re-instatement of the Enduring Power of Attorney.

5. By application filed 12 May 2020, RAG seeks a stay of the decision dated 25 March 2020. The reason given is that the application for leave to appeal or appeal has been lodged.

6. RAG was directed to file any submissions in support of his application for a stay of the decision. He has not done so.

7. The Public Guardian has filed submissions raising for the Tribunal’s consideration that, while it does not provide views on who should make decisions on behalf of an adult, it is aware that there is conflict between interested parties which may impact on decision-making processes, should a health care decision be required.

8. PAG filed submissions referring to the reasons for appointment of the Public Guardian and the Public Trustee of Queensland, submitting that if RAG is able to revert to a position of control over HDG’s affairs there is a real and unacceptable risk that HDG’s care and financial interests will not be properly advanced or protected.

9. The Public Trustee of Queensland has not filed any submissions.

10. The commencement of an appeal does not itself affect the operation of a decision under appeal,[1] although the appeal tribunal may make an order staying the operation of a decision appealed pending determination of the appeal.[2] When leave to appeal is required, the power to make a stay order is conferred by s 58(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).[3] When leave to appeal is required, a stay will only be granted if there are exceptional circumstances.[4]

    [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(1).

    [2]QCAT Act s 145(2).

    [3]Hessey-Tenny v Jones [2018] QCATA 131.

    [4]Ibid.

11. An applicant for a stay must generally demonstrate a reason or an appropriate case to warrant the exercise of discretion to grant the stay of an order of the Tribunal. In particular, based on conventional principles, an applicant must demonstrate a good arguable case and that the balance of convenience favours the granting of a stay order. Further, as discussed above, as leave to appeal is required, exceptional circumstances must be established.

12. Here, no reason for a stay order has been given by the applicant.

13. It is not the case that any decision of the appeal tribunal will be rendered nugatory if a stay is not granted. There is no disadvantage to the applicant if a stay order is not granted pending determination of the appeal proceeding. 

14. The Queensland Court of Appeal, in Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd,[5] stressed that it is not appropriate to grant a stay unless sufficient basis is shown to outweigh the consideration that decisions from an original hearing should not be treated as merely provisional.

    [5][2008] 2 Qd R 453, [12].

15. We are not satisfied that any basis has been shown to grant a stay of the decision. Nor have exceptional circumstances been demonstrated by the applicant.  On the contrary, it is in HDG’s interest that measures put in place to support and protect her are maintained until a full hearing of RAG’s appeal, when any asserted errors in the decision of the tribunal below can be fully tested.

16. The application for a stay of the decision dated 25 March 2020 in GAA3476-19; GAA3478-19; GAA6945-19 and GAA1678-20 is refused.