YGD (No 1)

[2017] QCATA 84

CITATION: YGD (No 1) [2017] QCATA 84

PARTIES:	YGD
APPLICATION NUMBER:		APL092-15

MATTER TYPE: Appeal

HEARING DATE: 24 May 2017

HEARD AT: Brisbane

DECISION OF: Justice Carmody

DELIVERED ON: 20 July 2017

DELIVERED AT: Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

1.     Application for leave is summarily dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  –  ADULT GUARDIANSHIP – DECLARATION OF INCAPACITY – where Public Guardian and The Public Trustee of Queensland appointed – where the applicant seeks to have The Public Trustee of Queensland removed as administrator for all financial matters on appeal  –  where the tribunal later declared the adult in dispute has capacity for personal and financial matters  –   where there is no utility in appealing a decision overtaken by later events

Guardianship and Administration Act 2000 (Qld) s 12

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 47

Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334

LAG v Department of Communities (Child Safety Services) [2010] QCAT 18

APPEARANCES and REPRESENTATION (if any):

APPLICANT/APPELLANT      Self-represented

FIRST RESPONDENT             Did not appear

SECOND RESPONDENT        C Miles for the second respondent

REASONS FOR DECISION

1. This application for leave to appeal against a decision determining capacity pursuant to section 12 of the Guardianship and Administration Act 2000 (GAA) is brought on failure to consider and misapplication grounds.

   The declaration of authority

2. MBL is a 72 year old woman who, on 27 October 2014, suffered a left temporal haemorrhage causing severe receptive and expressive aphasia.[1]

   [1]Tribunal decision 19 January 2015.

3. When the application for leave to appeal was made it had been determined by the tribunal[2] having regard to the medical and oral evidence that “due to her severe deficits in comprehension and expression, (MBL) cannot understand the nature and effect of decisions about her personal matters and financial matters and is unable to communicate decisions in relation to her personal and financial matters”.[3]

   [2]Ibid.

   [3]Ibid at [29].

4. As a result, the Public Guardian was appointed as guardian and The Public Trustee of Queensland (The Public Trustee) was appointed as administrator on 19 January 2015.

5. The tribunal’s decision of 19 January 2015 further ordered that the appointment of the Public Guardian and The Public Trustee “was reviewable and is to be reviewed in 2 years”.

6. The application for leave was filed on 9 March 2015. In it, YGD seeks orders removing “Public Trustee … as administrator and the existing informal arrangements in place … be confirmed; or the Public Trustee be replaced by the original applicants; or the terms of the appointment of the Public Trustee are changed so that the Public Trustee is appointed as administrator for … only about … financial matters … relating to the adult’s real property and legal matters … .”

7. On 23 June 2017[4] the tribunal declared MBL has capacity for all personal and financial matters. The appointment of the Public Guardian as guardian for personal matters (within whom MBL has contact and/or visits) and The Public Trustee as administrator for all financial matters was revoked.

   [4]QCAT decision of 23 June 2017 with oral decision given at the tribunal hearing of 10 May 2017.

8. In that decision the tribunal noted that MBL’s treating general practitioner reported on 16 January 2017 that in her opinion MBL had minimal impairments in daily life and had capacity for complex health, lifestyle and financial decision-making.

9. The tribunal also noted that MBL’s treating Psychologist reported in 16 January 2017 that MBL is able to make complex health, lifestyle and financial decisions.  Other treating medical practitioners reported improvement and continued improvement.

10. The object of the judicial process is the final determination of the rights of the parties to an action, courts have traditionally refused to provide answers to hypothetical questions or to give advisory opinions[5] or intervene where there is no controversy to quell.[6]

    [5]Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at 355-356.

    [6]Ibid at 355.

11. There is no utility in appealing a decision overtaken by later events. The applicant has, for all practical purposes, achieved his desired outcome of the proposed appeal by alternative means.[7]

    [7]LAG v Department of Communities (Child Safety Services) [2010] QCAT 18.

12. In LAG v Department of Communities (Child Safety Services)[8] the tribunal exercised its discretion under s 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act) to dismiss the application where the reviewable decision no longer had any effect.

    [8][2010] QCAT 18.

13. The application for leave is summarily dismissed for this reason.