MHI v The Public Trustee of Queensland [2026] QCATA 65

[1] MHI wants to manage his own financial affairs.

[2] MHI says that in an earlier decision, the Tribunal exercising powers under the Guardianship and Administration Act 2000 (Qld) ('GA Act'), appointed the Public Trustee of Queensland ('PTQ') as his administrator for all financial matters based on facts that were not present in the case.

[3] MHI, who is assisted by a legal representative, applies to this Appeal Tribunal for leave to appeal the Tribunal's decision to appoint the PTQ as administrator.[1]

[4] Leave to appeal the Tribunal's decision is necessary because MHI identifies alleged errors of mixed fact and law in the Tribunal's decision below.[2]

[5] The Appeal Tribunal has directed that the application for leave to appeal or appeal (if leave to appeal is granted) will be heard and determined on the papers by written submissions from the parties and without an oral hearing.[3] MHI and the PTQ have filed written submissions and supporting documents including an Appeal Book.[4] The matter was listed before this Appeal Tribunal for a hearing on the papers on 9 February 2026.

[6] For reasons explained below, leave to appeal is refused in this matter. Although there are important questions raised about the GA Act including the general principles (s 11B), the appointment of a representative (s 125) and the requirement to afford procedural fairness to a party in a proceeding, this is not a matter where the Member below made findings based on, as contended by MHI, 'irrelevant information'.[5]

[7] As discussed below, there was evidence before the Tribunal that was credible, relevant and significant to an issue to be decided. It was open to the Tribunal to make findings based on the evidence and to exercise the power under s 12 of the GA Act to appoint the PTQ as administrator. Further, the transcript of the hearing below shows that MHI participated in the hearing and was able to communicate his opposition to the appointment of the PTQ. This is not a case where the Member did not consider and reflect upon the evidence 'viewed as a whole'.[6]

[8] In the proceeding below there were applications before the Tribunal for the appointment of a guardian and administrator filed by ET, care coordinator and clinical nurse, proposing that the Office of the Public Guardian ('OPG') and PTQ be appointed to make decisions about some of MHI's personal matters and financial matters.[7]

[9] ET's applications were supported by written submissions including letters detailing the reasons for filing the applications and, amongst other things, the views of MHI and some of MHI's family members about the appointment of the OPG and PTQ.[8]

[10] ET reports that at the time of filing the applications, MHI was a patient who presented to hospital due to, as stated by ET, 'multiple falls at home secondary to functional/cognitive decline at home' and this was on the background of as stated, 'long-standing: Wernicke's Encephalopathy, HIV AIDS dementia and ongoing alcohol misuse'.[9]

[11] Prior to hospitalisation, ET reports that MHI was living in a high-set private rental property with drop-in National Disability Insurance Scheme ('NDIS') support. ET reports that MHI has not worked for many years and receives a disability support pension. ET states that '[MHI's] regular support workers report they have noted a steady decline in MHI's cognition over the past few months'. The relevant extracts from ET's letter dated 19 September 2024 are set out below:

[MHI] is a 64-year-old gentleman who presented to hospital on the 26 June 2024 due to multiple falls at home secondary to functional/cognitive decline at home. This was on background of long-standing: Wernicke's Encephalopathy, HIV AIDs dementia and ongoing alcohol misuse. Once stabilised [MHI] was transferred to Canossa on the 3 July 2024 for ongoing rehabilitation.

During this time in rehabilitation, [MHI] has made some functional improvements however remains to require one person to provide standby assistance with all his mobility/transfers and requires a 24/7 care environment due to his reduced cognition. [MHI's] cognition has been assessed whilst an inpatient and he has been deemed by the treating team to lack capacity for all decision making...

...

Prior to hospitalisation [MHI] was living in a high-set private rental property with drop-in NDIS support provided by [a service provider]. [MHI] hasn't worked for many years and receives a disability support pension for income. [MHI's] regular support workers report they have noted a steady decline in his cognition over the past few months.[10]

[12] Prior to the Tribunal's hearing on 9 October 2024, applications filed by MHI's sibling and his sibling's wife, proposing their appointment as guardian and administrator were withdrawn, with the Tribunal's leave.[11]

[13] ET reports that MHI's family have decided to withdraw their application due to personal reasons and have advised MHI and agree that the OPG and PTQ are now appropriate. ET states that MHI has been discharged into accommodation supported by NDIS whilst awaiting permanent supported independent living accommodation. ET also states that MHI continues to require support, referring to MHI's difficulties with formulating safe decisions. ET refers to, as stated, 'concerns' that MHI remains vulnerable to financial abuse and refers to MHI disclosing that he gives his wallet to his carer to look after on a regular basis. The relevant extracts from ET's letter are set out below:

...I was advised by [MHI's sibling's wife] that her and her husband have decided to withdraw their application due to several personal reasons. As such they have since advised [MHI] and spoken as a family and all family members agree that the OPG and PTQ are now appropriate. I have therefore resubmitted to the tribunal a form 10 application proposing OPG/PTQ.

Since my last letter was written to the tribunal, [MHI] has discharged into NDIS medium term accommodation (on the 17th September) whilst awaiting permanent supported independent living (SIL) accommodation. The medical team have reviewed [MHI's] capacity throughout the admission and although there have been some improvements in his simple decision making - the medical team felt when [MHI] discharged from Canossa that he continued to require support with complex decision making. Particularly complex health, personal (including lifestyle/accommodation decisions) and financial decisions.

...

[MHI] displays difficulties with complex financial matters as he struggles to be able to advise the amount of money he has in savings and then pension amount he receives from Centrelink. Concerns have further been raised that [MHI] remains vulnerable to financial abuse. During his admission [MHI] disclosed to me that he gives his wallet to his carer to look after on a regular basis. When conversations were attempted with [MHI] around our concerns with a paid carer having full access to his finances, [MHI] was unable to identify any risks or concerns around professionalism/abuse.[12]

[14] ET also filed in the Tribunal a health professional report completed by Dr Yong, rehabilitation medical specialist dated 25 July 2024 and a completed Montreal Cognitive Assessment ('MoCA').[13]

[15] In the health report, Dr Yong identifies MHI's 'current medical conditions', as stated, 'HIV/AIDS dementia, Wernicke's Encephalopathy, schizophrenia, asthma, COPD, osteoarthritis, osteoporosis, alcohol misuse, depression, anxiety'.[14] The MoCA assessment completed on 4 July 2024 reveals a score of 17 out of 30.

[16] MHI participated in the hearing below by telephone. The applicant, ET, also participated in the hearing as did FT, a service provider for MHI and a representative from the OPG.

[17] The transcript of the hearing below shows that MHI told the Tribunal that a real estate agent asked him to renew the lease of the property where he is living.[15] MHI told the Tribunal, as stated, 'I don't want to because I want to go to 24/7 care'.[16] The Tribunal Member explained to MHI the role of the OPG and confirmed with the OPG representative in the hearing that the OPG does not, as stated by the Member, 'sign the lease'. The relevant extracts from the transcript are set out below:

MHI: I disagree with [indistinct] cause I've - since being in that hospital for two months, how can they really have a good look at what [indistinct] inside, and four and a-half years later, I'm telling you that the agent wants me - has asked me to renew the lease. I don't want to [indistinct] because I want to go to 24/7 care. I'm 65 years of age, and I do not need [indistinct] not have anything to do with that hospital truly.

...

Member: ...[OPG representative] is from the Office of the Public Guardian, and sometimes they come in and they help make decisions with you. See, they're not just allowed to do stuff off their own back. They have to make sure that the- under the Human Rights Act, under the general principles, under our Act, they have guidelines that they must follow, and the top of that tree is consultation with the person. So they talk to you about what things you would like to - what are doable on your income, what's available so there's stuff like that, and then they make sure that the lease that you sign is the right kind of one. Is that right, [OPG representative]? Would you like to just come in there?[17]

OPG: That's correct, Member. So what we would do, [MHI], if [the Tribunal] decides today that we're to help you, what we would do is we would come and we'd sit down with you and with [your support workers] and we'd have a chat to you about what it is that you want. I heard you say before that you want to go into 24/7 care, that you don't want to go back and sign that lease with the agent on [your current property]. So we'd talk to you about that we'd work through that with you, and help make that choice to make sure that you're legally safe in that.[18]

[18] MHI did not object to the appointment of the OPG as a guardian.[19] In relation to signing the lease, MHI told the Tribunal, 'I've been doing it for four and half years'.[20] MHI also told the Tribunal that he did not want the PTQ, as stated, 'signing leases' and said 'I've got support work for that'.[21] The Tribunal Member told MHI that support workers are not allowed to sign the lease and look after his money. The relevant extract of the transcript is set out below:

Member: I-there are some things that the support workers are not allowed to do. Okay. And so they will get in trouble if they start doing something that's not in their role. And one of the things that- because you get on well with them, you trust them and you want them to look after your money, but it puts them at risk.[22]

[19] MHI told the Tribunal at various times throughout the hearing that he manages his own money, and he does not want, as stated by MHI, 'the Public Trustee'.[23] Further, the Member acknowledges at various times throughout the hearing MHI's views about the appointment of the PTQ and says, 'you [meaning MHI] are not happy with the Public Trustee'. The relevant extracts from the transcript of the hearing below are set out below:

MHI: I don't want...the Public Trustee.

Member: I know you don't.

MHI: signing leases. I've got support work for that...

Member: Yes. Okay. So [MHI], can I just tell you about something?

Member: I - there are some things the support workers are not allowed to do. Okay. And so they will get in trouble if they start doing something that's not in their role. And one of the things that - because you get on well with them, you trust them and you want them to look after your money, but it puts them at risk.

MHI: No, they don't look after my money. I look after my own money.

...

Member: ...you are not happy with the Public Trustee. I know that. Yes, so tell me a bit about how you're managing your money at the moment.[24]

[20] MHI told the Tribunal about his finances including how much money he gets for his pension, pays for rent and for other expenses. MHI told the Tribunal that he, as stated, 'take[s] the staff for a sandwich and sit in the park...I'm not running around going into nightclubs. I can manage my finances'.[25] The Member asked MHI about giving his bank card to his support worker. MHI told the Tribunal that he gave his card to his support worker during his time in hospital and said that he 'didn't trust the hospital':[26]

MHI: You know, and I just didn't trust the hospital...having my card. So I said to [support worker], "Would you mind this and keep it" cause she'd come up and visit me all the time...And anything I wanted, like cigarettes, she would get it...And I can go with her.[27]

[21] The Tribunal appointed the OPG as guardian for MHI for accommodation and provision of service matters including in relation to the NDIS. The Tribunal appointed the PTQ as administrator for MHI for all financial matters. Further, in the same decision, the Tribunal ordered that for each of the appointments of the OPG and PTQ, respectively, the appointment remains current until further order of the Tribunal, and the appointment is reviewable and is to be reviewed in two years.[28]

[22] The Tribunal gave oral reasons for its decision at the conclusion of the hearing on 9 October 2024.[29] The Tribunal's reasons for the decision are considered below in addressing the applicant's grounds of appeal.

[23] An appeal determined on a question of fact or mixed law and fact, for which leave is required, must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[30] Put another way, 'judgment may be given as ought to be given if the case came at that time before the court of first instance'.[31] The Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[32]

[24] An appeal that raises questions of law for which leave to appeal is not required proceeds under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act'). In accordance with established law, unless the error decides the matter in its entirety, the decision must be set aside and sent back to the Tribunal for reconsideration.[33]

[25] The distinction between questions of law and fact is not always clear. In Canada (Director of Investigation and Research) v Southam Inc[34] the Court said:

Briefly stated, questions of law are questions about what the correct legal test is, questions of fact are questions about what actually took place between the parties; and questions of mixed law and fact are questions about whether the facts satisfy the legal tests.[35]

[26] For errors of mixed fact and law, the question of whether leave to appeal should be granted is well settled and to be determined according to established principles:

(a) Is there a reasonably arguable case of error in the primary decision?[36]

(b) Is there a reasonable prospect the appellant will obtain substantive relief, where substantial injustice was caused by the error?[37]

(c) Is there a question of general importance upon which further argument and a decision of the appellate court or tribunal, would be to the public advantage?[38]

[27] In the present matter, MHI raises five grounds of appeal that are said to raise errors of mixed fact and law. A summary of MHI's submissions for each of the grounds of appeal is set out below:[39]

(a) Ground 1: Failure to consider the views and wishes of the applicant [MHI].

The Tribunal erred in law by failing to apply the relevant provisions of the GA Act under s 81(2) and general principles under s 11B of the GA Act by not considering the views and wishes of the applicant. Further, it was open to the Member to adjourn the proceedings to appoint a representative for the applicant as soon as it was identified that the applicant's participation in the hearing was not fair and that he was unable to fully express his views and wishes.

The Tribunal erred in law by failing to afford natural justice to the applicant by not providing him an opportunity to present his case and proceeding to make final orders in his absence.

(c) Ground 3: Failure to apply presumption of capacity or readily disposing of presumption without appropriate scrutiny of evidence.

The Tribunal erred in law by failing to apply the presumption of capacity. In the alternative, the Tribunal erred in law and fact by readily disposing of the presumption of capacity without appropriate scrutiny of the medical evidence.

(d) Ground 4: Failure to consider relevant evidence.

The Tribunal erred in law and fact by failing to consider the financial evidence and oral testimony related to finances of the Applicant. In the alternative, the Tribunal erred by failing to afford due weight to the financial evidence. By failing to consider this evidence, the Member erroneously made a finding of fact that the applicant does not have capacity to manage his affairs. Further, there was no consideration of the applicant's rental history evidence.

The Tribunal erred in law and fact by taking into consideration irrelevant information when determining whether the applicant has capacity to manage his own affairs. Further, the Tribunal came to a determination on the basis of outdated medical information and lack of medical information concerning as stated '[MHI's] proclivity to falls'.

[28] MHI says that there is a reasonable argument of error to be corrected and leave to appeal should be granted to correct a substantial injustice to the applicant.[40]

[29] The PTQ says in response, that the Tribunal took into account MHI's evidence and that there is no evidence that the Tribunal took into account irrelevant considerations.[41] Further, the PTQ says that the findings and decision of the Tribunal are capable of being supported by the evidence available to the Tribunal at first instance.[42] The PTQ submits that the Appeal Tribunal should refuse leave to appeal and/or dismiss the appeal.[43]

The tribunal's power to appoint a guardian and administrator

[30] In considering whether to appoint a guardian and administrator for a person referred to under the GA Act as the 'adult', the tribunal is required to apply relevant sections of the Act including the general principles (s 11B).[44]

[31] Section 12 of the GA Act applies and gives the tribunal the power to appoint a guardian for a personal matter or an administrator for a financial matter for an adult if the tribunal is satisfied as to certain matters. For example, as provided under s 12 and amongst other things, the tribunal is satisfied that the adult has impaired capacity for the matter, there is a need for a decision in relation to the matter and without an appointment the adult's needs will not be adequately met; or the adult's interests will not be adequately protected. Importantly, the adult is presumed to have capacity for a matter until the contrary is proven (s 11) and adults with impaired capacity are the primary focus of the GA Act (s 11A).[45] The Human Rights Act 2019 (Qld) ('HR Act') also applies when appointing a guardian or administrator under the GA Act.[46]

[32] In relation to who should be appointed as guardian or administrator, s 15 (appropriateness considerations) applies. Further, the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter.[47] The GA Act recognises that the public trustee is available as a possible administrator for an adult with impaired capacity.[48]

[33] The general principles (s 11B) must be applied by a person or other entity that performs a function or exercises a power under the GA Act. The general principles include, amongst other things, the presumption of capacity, acknowledging human rights and fundamental freedoms, empowering the adult to exercise human rights and fundamental freedoms and maximising an adult's participation in decision-making.

[34] Section 5 of the GA Act acknowledges, amongst other things, the capacity of an adult with impaired capacity to make decisions should be restricted, and interfered with, to the least possible extent. Further, the purpose of the GA Act under s 6 provides that the Act seeks 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 appropriate support for decision-making.

[35] Section 81(2) of the GA Act requires the tribunal to the greatest extent practicable to seek and take account of the adult's views, wishes and preferences expressed or demonstrated by the adult; and the views of any member of the adult's support network. Section 103 of the GA Act requires the tribunal to, amongst other things, give each active party a reasonable opportunity to present their case and to access a document and information.[49] Further, s 130 of the GA Act applies and the tribunal must ensure, as far as it considers it practicable, it has all the relevant information and material.

[36] In a proceeding, the tribunal is also required to observe the rules of natural justice.[50] The duty to afford procedural fairness to a party in a hearing arises from s 29 of the QCAT Act. Whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case.[51] The tribunal is required to take all reasonable steps to ensure a party to a proceeding understands the nature of assertions made and their legal implications.[52]

[37] A hearing under the GA Act has been described as inquisitorial in nature.[53] It may be appropriate for the Tribunal to outline the issues to be determined under the relevant Act and raise issues and test the available evidence.[54]

[38] In my view, properly framed, Grounds 1, 2 and 3 raise errors of law in the Tribunal's alleged failure to apply relevant sections of the GA Act and the QCAT Act; and to have regard to relevant matters under s 12 including to apply the presumption of capacity, in exercising the power to appoint an administrator.[55]

[39] A decision-maker's failure to take into account factors they were bound to consider by statute is an error of law.[56] The Appeal Tribunal will not usually interfere with the Tribunal's exercise of discretionary power unless shown that the Tribunal acted upon a wrong principle or made mistakes of fact which affected the decision, or was influenced by irrelevant matters.[57] It must be shown that the decision is plainly unjust or unreasonable and involved a clear misapplication of the discretion.[58]

Further, a failure to observe the rules of natural justice as required under the QCAT Act including giving a party an opportunity to present their case is an error of law.[59]

[40] In my view, as contended by the applicant (MHI), Grounds 4 and 5 clearly raise a question of mixed fact and law about whether it was open to the Tribunal below to make findings about MHI's capacity to manage his financial affairs based on the financial evidence that MHI says the Tribunal did not consider; and the medical evidence that MHI says is outdated.[60]

[41] The Appeal Tribunal will not necessarily disturb findings of fact made by the Tribunal at first instance if it considers the findings of the Tribunal were able to be made based on the evidence before it and the Tribunal has referred to the evidence relied upon to make those findings.[61] The Appeal Tribunal may interfere if the conclusion is 'contrary to compelling inferences' in the case.[62]

[42] Given that I have formed a preliminary view about the grounds of appeal, in particular that Grounds 1, 2 and 3 raise errors of law, it is convenient for this Appeal Tribunal to firstly consider Grounds 1, 2, 3 together with Ground 5 and then Ground 4. If it is determined that there is an error established for which leave to appeal is granted, then the appeal will be decided by way of rehearing and all contentions raised on each of the grounds of appeal dealt with in the rehearing.[63]

**Ground 1: Failure to consider the views and wishes of the applicant [MHI].

Ground 3: Failure to apply presumption of capacity or readily disposing of presumption without appropriate scrutiny of evidence.

[43] The applicant's contention that the Tribunal gave no meaningful weight to MHI's opposition to the application when deciding to appoint an administrator is without merit.[64] Further, the applicant's contention that the Tribunal below failed to consider the views and wishes of MHI is also without merit.[65]

[44] In the reasons, the Member says that MHI attended the hearing and was able to participate and tell the Tribunal about 'his life and various health challenges he is facing at the moment'. The relevant extract from the transcript of the reasons appears below:

...The applications were to assist [MHI], who is about to, after a long period of successful tenancy at one address, is about to transition to other accommodation. On his own admission, he has numerous health matters going on for him at the time - at this time, relating to various diagnoses which I outlined in Dr Yong's report dated 25 July 2024....

[MHI] attended the hearing today and was able to participate and tell the tribunal about his life and various health challenges he is facing at the moment.[66]

[45] The Member is aware of MHI's opposition to the application and says 'he [MHI] is opposed to the application and blames the hospital for being the applicant in the proceedings'.[67]

[46] As can be seen in the transcript of reasons, the Member refers to the information given by MHI in the hearing about his financial matters that includes money held in a bank account, income in the form of a pension and expenses including rent. The Member refers to MHI spending 'small amounts' of money on support workers. The Tribunal goes on to find that MHI needs oversight of his affairs. The Member makes this finding in the context of considering MHI's health that the Member also finds is fluctuating in nature and says that MHI is likely or has previously and recently become very ill to the point of almost death. The relevant extract from the transcript of reasons appears below:

In relation to administration, [MHI] says that he does have a bank account with $9,000 in it. He previously referred to having home and car loans in the past. He selected Suncorp as his bank because he trusts them. He states that he can budget and live within his means; his pension is $1,360 per fortnight.

He is not sure if he receives rent assistance, but thinks it might be $67. His rent is $285 per week, and he spends, he said around $55 on beer. He talked of shouting his support workers with small amounts: for example, a sandwich or a drink. He does not have any Centrelink advances, and he has no debts that he shared with the tribunal. He described his rent as being paid two weeks in advance by direct debit.

The issue for the tribunal with respect to capacity hinges on the fact that his health is fluctuating in nature and he is likely or has previously and recently become very ill to the point of, almost, death, with his blood pressure sinking to a very low point, and his - on his own admission, he is falls risk, and so the tribunal is satisfied that he is someone who needs to the - who needs oversight of his affairs.[68]

[47] The applicant's contention that the Tribunal failed to apply relevant sections of the GA Act such as s 81(2) and the general principles as set out under s 11B by not considering the views of MHI is also without merit.[69]

[48] As discussed in [17] and [18] above, MHI participated in the hearing below and was able to provide information to the Member about his finances and tell the Tribunal about his views in respect of the appointment of the PTQ. MHI did not object to the OPG appointment and told the Tribunal he did not want to renew the lease because he wants to go to 24/7 care. MHI also told the Tribunal he has 'support work' when discussing the need to sign the lease.

[49] In the hearing below, the Tribunal Member refers to the general principles when outlining the role of the OPG to MHI and when discussing the need to sign a lease for his accommodation.[70] The representative of the OPG confirms in the hearing that they will, as stated, 'have a chat' to MHI about what he wants. The OPG says to MHI in the hearing below 'I heard you say before that you want to go into 24/7 care, that you don't want to go back and sign a lease with the agent'.[71]

[50] The Member refers to the general principles in the Tribunal's reasons and says that MHI's family are not willing to be appointed and that the PTQ meets the appropriateness considerations of s 15(1) of the GA Act. The Member says that the Tribunal has applied the general principles to the decision and the HR Act:

The family are not willing to be appointed. The Public Trustee meets the appropriateness considerations of s 15(1) of the GA Act. They are competent, they are audited and can work with the adult to make the current decisions - required decisions, and I have appointed the Public Trustee for a period of two years for all financial matters. The tribunal has applied the general principles to the decision and the Human Rights Act, in view of the adult's precarious and fluctuating health - multiple health concerns, which are permanent and affect cognition.[72]

[51] The applicant's contention that the Member has failed to apply the presumption of capacity (s 11) and considered irrelevant information when determining MHI's capacity to manage his financial affairs is without merit.

[52] A critical finding by the Tribunal in appointing an administrator was the need for a decision about MHI's lease. Further, as found by the Tribunal MHI struggles to understand the role of a service provider meaning the service provider is not able to be responsible for making decisions for MHI about his finances including signing the lease for him and managing his money. The relevant extract from the transcript is set out below:

...There is a question of whether [MHI] will renew his lease and that decision needs to be made, or whether he will continue in the current accommodation. [MHI] struggles with understanding the role of the service providers and that they are not able to be responsible for decisions regarding accommodation and NIDIS, although they do all attend the meetings together.[73]

[53] It is implicit in the Tribunal's reasons that the Tribunal was satisfied as to the matters necessary under s 12 of the GA Act for the appointment of a guardian and administrator including that the presumption of capacity for the relevant matter is rebutted. The Tribunal's reasons refer to MHI's psychometric testing and the Member says that it shows that MHI's cognition is impacted by his diagnosis of dementia, Wernicke's encephalopathy and schizophrenia.[74] The Member goes on to find that the Tribunal is satisfied that MHI does not have capacity due in part to the, as stated, 'symptoms of his multiple comorbidities'.[75] The Tribunal refers to a pattern of, as stated, 'minimising deficits' and in the reasons finds MHI is a person with 'challenging behaviours and high needs'.[76] It is implicit in the Tribunal's reasons that the Member accepts the medical evidence of Dr Yong who reports that, amongst other things, '[MHI] lacks capacity for financial decision making therefore will require a substitute decision maker'.[77]

[54] In relation to MHI's financial matters, the Tribunal refers to the information given by MHI in the hearing and by service providers including the applicant, ET.[78] The Tribunal finds that MHI's health is fluctuating and refers to MHI as being recently ill and that MHI is someone 'who needs oversight of his affairs'.[79]

[55] On a fair reading of the transcript as a whole, the Member takes into account MHI's views and information provided about his financial affairs including about the appointment of the PTQ and the need for a decision to be made about the lease and to protect MHI's finances.

[56] Turning now to the applicant's contention about whether it was open to the Tribunal below to adjourn the proceedings to appoint a representative for MHI because MHI's participation in the hearing was not fair and that he was unable to fully express his views and wishes, this Appeal Tribunal is referred to the transcript of reasons. Relevantly, the applicant refers to the Member's comments that MHI, as stated, 'may have benefited from having an advocate - somebody who could represent his views and interests going forward...'.[80] The applicant says that it was open to the Member to adjourn the proceedings to appoint a representative for MHI as soon as it was identified that MHI's participation in the hearing was not fair and that he was unable to fully express his views and wishes.[81] The relevant extract from the transcript of reasons is set out below:

The tribunal [found] that under s 31 of the Human Rights Act, the adult has a right to a fair trial, but in the course of the hearing, it was identified that he may have benefited from having an advocate - somebody who could represent his views and interests going forward, and the Public Guardian has also indicated they may be able to assist with that.[82]

[57] The power to appoint a representative comes from s 125 of the GA Act. Under s 125 of the GA Act, the Tribunal may appoint a representative for an adult to represent the adult's views, wishes and interests. A proceeding may be adjourned to allow the appointment to be made.[83] Further, as provided under s 125(1) of the GA Act, the discretion to appoint a representative may be exercised if the adult is not represented in the proceeding or the adult is represented in the proceeding by an agent the tribunal considers to be inappropriate to represent the adult's interests.

[58] In my view, the Tribunal's power to appoint a representative under s 125 of the GA Act involves the exercise of a discretion to be exercised in a way that will best achieve the purpose of the GA Act consistent with the language and purpose of all of the relevant sections of the Act.[84] The purpose of the GA Act 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 appropriate support for decision-making.[85]

[59] In performing a function under the GA Act, the Tribunal must apply the general principles that recognise an adult's right to participate, to the greatest extent practicable, in decisions affecting the adult's life and as required under s 81(2) to the greatest extent practicable seek and take account of the views, wishes and preferences expressed or demonstrated by the adult.

[60] The role of s 125 representative should not, in my view, be confined to expressing to the Tribunal the adult's views and wishes.[86] As observed by the Appeal Tribunal in SK v The Public Trustee of Queensland & DN,[87] '[s]ection 125 enables not only the adult's views and wishes to be communicated but also the adult's interests to be represented.[88]

[61] Whilst there is a legal mechanism under s 125 of the GA Act to appoint a representative and as provided under s 125(2), a proceeding may be adjourned to allow the appointment to be made, it does not necessarily follow that a representative is be appointed in every matter before the Tribunal. Whether the Tribunal should exercise the discretionary power under s 125 will depend on the circumstances of the matter having regard to s 125 and the relevant provisions of the GA Act.

[62] In my view, the Member's comments made about MHI having benefited from an advocate should be considered having regard to how the proceeding was conducted below.

[63] As discussed above, MHI participated in the hearing and communicated his views to the Member about the appointment of the PTQ. The transcript shows that MHI was able to respond to and engage in the hearing process and importantly MHI was able to respond, at relevant times, to issues being considered by the Member relevant to the applications. MHI told the Tribunal about his desire to move into 24/7 care and that he did not want to renew the lease on his property. MHI told the Tribunal that he did not object to the appointment of the OPG but did not want the PTQ appointed. MHI also indicated to the Tribunal that he relies on the support workers to assist him. As outlined in [13] above, there was evidence before the Tribunal in ET's letter about MHI being vulnerable to financial abuse, in particular concerns about a carer having access to MHI's finances.

[64] The applicant has failed to demonstrate that MHI suffered any disadvantage from the Tribunal's alleged failure to appoint a s 125 representative. Further, the contention that MHI was not given an opportunity to, as stated, 'present his case' is without merit. As discussed in [36] above, whether a matter has been dealt with fairly depends on what is fair in the circumstances of the case. MHI participated in the hearing and the Member had the benefit of interacting with MHI.[89] As can be seen in the transcript, MHI was given an opportunity to tell the Tribunal about his financial and personal matters relevant to whether the OPG and PTQ should be appointed.

[65] The Tribunal did not, as submitted by the applicant, proceed to make final orders in MHI's absence.[90] The transcript of the hearing below shows that the Member told MHI that the Tribunal was going to appoint the PTQ and the OPG for a two year period and stated, 'both the [PTQ] and the [OPG] will work with you'.[91] The Member read the orders into the record and told all parties attending the hearing including MHI that the Tribunal was going to 'summarise the reasons'. The Member told MHI that the Tribunal was 'happy for him to stay if he'd like to and listen to the reasons for the decision'.[92]

[66] It is not readily apparent from the transcript as to whether MHI heard the Tribunal's reasons. MHI does not contend here, in addressing the grounds of appeal, that the Tribunal failed to give reasons for the decision, only stating that the tribunal proceeded to make final orders in his absence.[93] As discussed above, MHI was present when the Tribunal read the orders appointing the OPG and PTQ into the record. Further, the Tribunal gave oral reasons for the decision to appoint the OPG and PTQ as it is required to do under s 121(4) of the QCAT Act. Even if the Tribunal proceeded to deliver oral reasons in MHI's absence because MHI did not stay in the hearing to hear the reasons, it is, of course, open to MHI to request the Tribunal's reasons under s 122 of the QCAT Act. Relevantly, as provided under s 123(2) of the QCAT Act, it is enough for the Tribunal to give a person a written transcript, or an audio recording, of the part of the proceeding in which the decision is, or the reasons are given orally.

Ground 4: Failure to consider relevant evidence.

[68] There is no new contention or alleged error identified that has not already been raised and considered in Grounds 1, 2, 3 and 5.

[69] As discussed above, in the Tribunal's reasons the Member refers to MHI's finances including his bank account, his pension, rental paid by MHI and that MHI spends money on beer and, as stated, '[MHI] talked of shouting his support workers with small amounts'.[94] Although not expressly referred to in the Tribunal's reasons, the Tribunal did have before it in the hearing below a copy of MHI's tenant history.[95] The Tribunal found that MHI is about to transition to other accommodation and new care arrangements.[96] The Tribunal found that MHI is someone who does not have the requisite insight into what decisions are required and he needs an administrator. The relevant extract of the transcript is set out below:

[MHI's] service provider said that he has good days and bad days, and the tribunal is satisfied that because of the precarious nature and the seriousness of his various illnesses and the way they manifest, the symptoms that show up, he is someone who does not have the requisite insight into what decisions are required. And so he needs an administrator, or he is likely to do something involving or likely to involve unreasonable risk to finance or property, and without [an] appointment his needs will not be adequately met, or interests not adequately protected.[97]

[70] As discussed in [50] above, the Tribunal found that MHI's family are not willing to be appointed and the PTQ meets the appropriateness considerations of s 15 of the GA Act.

[72] The Tribunal below considered the evidence as a whole and concluded that decisions need to be made about whether MHI will continue in his current accommodation. It was open for the Member to find that MHI does not have capacity for his financial matters based on the medical evidence including Dr Yong's report and the evidence of service providers given in the oral hearing.

[73] It is clear from the transcript that MHI participated in the hearing and did not object to the appointment of the OPG as a guardian. The Tribunal did consider MHI's views about the appointment of the PTQ and did consider the financial evidence relevant to whether there is a need for the appointment of an administrator for the purposes of s 12 of the GA Act.

[74] The Tribunal gave reasons for the appointment of the OPG and PTQ. It is implicit in the Tribunal's reasons that in appointing a guardian and administrator that the Tribunal accepted Dr Yong's evidence and the evidence of support workers about MHI's capacity and the need for assistance with MHI's financial matters in particular decisions about MHI's lease.

[75] The Tribunal in appointing the PTQ as administrator ordered that the appointment is reviewable and is to be reviewed in two years.

[76] In reviewing the appointment of the OPG as guardian and PTQ as administrator, the Tribunal is required to conduct the review under s 31 of the GA Act. It will be necessary for a differently constituted Tribunal to revisit the requirements under s 12 of the GA Act for the appointment of a guardian and administrator. This is because s 31 of the GA Act requires the Tribunal at the end of the review to revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.[98] In the future review hearing, MHI will have an opportunity to present new evidence about his capacity and the need for future decisions about his personal and financial matters. The Tribunal is, of course, required to ensure, as far as it considers practicable, that it has all the relevant information and material including up-to-date medical evidence about MHI's capacity. It is, of course, open to the Tribunal in reviewing the appointment of the OPG and PTQ to give consideration as to whether the discretion under s 125 of the GA Act should be exercised to appoint a representative for MHI in the review hearing.

[77] For reasons explained above, leave to appeal is refused. The appeal is dismissed. The Appeal Tribunal orders accordingly.

[1] Application for leave to appeal or appeal filed on 19 December 2024 and Tribunal decision dated 9 October 2024.

[2] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3)(b) ('QCAT Act').

[3] Appeal Tribunal Directions dated 4 December 2025. Notice of the on the papers hearing given on 10 December 2025 to all parties. Hearing on the papers listed before the Appeal Tribunal on 9 February 2026.

[4] Applicant's Appeal Book, written submissions and list of authorities filed on 22 April 2025 and written submissions in reply filed on 10 June 2025. See also respondent, Public Trustee's, Appeal Book, written submissions and list of authorities filed on 16 May 2025.

[5] Applicant's written submissions filed on 22 April 2025.

[6] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [23] (Gleeson CJ, Gummow J and Kirby J).

[11] Applicant's written submissions filed on 22 April 2025.

[12] Applicant's written submissions filed on 22 April 2025, p 21-22.

[23] Ibid p 1-15, Line 24-30 and p 1-16.

[24] Transcript of proceeding, p1-15, p1-16 and p 1-30.

[28] Tribunal Decision dated 9 October 2024, see Applicant's Appeal Book, p 62.

[30] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 147.

[31] Crime and Corruption Commission v Lee (No 2) [2019] QCATA 151.

[32] Ibid, s 147(3).

[33] See Ericson v Queensland Building and Construction Commission [2014] QCA 297 [3], [10], [13], [16].

[34] [1997] 1 SCR 748.

[35] Canada (Director of Investigation and Research) v Southam Inc [1997] 1 SCR 748 [35] (Iacobucci J).

[36] QUYD Pty Ltd v Marvass Pty Ltd [2008] QCA 257; [2009] 1 Qd R 41.

[37] Cachia v Grech [2009] NSWCA 232 [13].

[38] Pickering v McArthur [2005] QCA 294 [3] and Allen v Queensland Building and Construction Commission [2023] QCATA 66 [2]. See applicant's written submissions filed on 22 April 2025 [3].

[39] Applicant's submissions filed on 22 April 2025.

[40] Applicant's written submissions filed on 22 April 2025.

[41] Submissions on behalf of the PTQ filed on 16 May 2025.

[44] See also GA Act, s 5, s 6 and s 81.

[45] See schedule 4 for the definition of 'capacity'.

[46] NJ [2022] QCAT 283.

[49] See s 119 of the GA Act for who is an 'active party'.

[51] Kioa v West (1985) 159 CLR 550, 612.

[53] PL v PT & Ors [2018] QCATA 114.

[55] Applicant's written submissions filed on 22 April 2025.

[56] Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39-41.

[57] House v The King (1936) 55 CLR 499, 504.

[58] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513.

[59] QCAT Act, s 29. See applicant's submissions filed on 22 April 2025, [15].

[60] Applicant's submissions filed on 22 April 2025.

[61] Dearman v Dearman [1908] HCA 84; (1908) 7 CLR 549 at 561; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, 125-126.

[62] Chambers v Jobling (1986) 7 NSWLR 1, 10.

[63] Harrison & Anor v Meehan [2017] QCA 315.

[64] Applicant's submissions in reply filed on 10 June 2025.

[65] Applicant's written submissions filed 22 April 2025.

[66] Applicant's Appeal Book, page 64 (transcript p 1-2, Line 10-30) and see Applicant's submissions in reply filed 10 June 2025.

[69] Applicant's written submissions filed on 22 April 2025.

[72] Ibid, p 66 (Transcript p 1-4, Line 25).

[80] Applicant's written submissions filed on 22 April 2025 and see transcript of reasons, Appeal Book, p 64.

[84] SK v The Public Trustee of Queensland & DN [2019] QCATA 127 [45], See Acts Interpretation Act 1954 (Qld), s 14A(1) and Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.

[86] SK v The Public Trustee of Queensland & DN [2019] QCATA 127 [32].

[87] [2019] QCATA 127 [32].

[89] MEC v Public Trustee of Queensland [2021] QCATA 11 [41].

[90] Applicant's submissions filed on 22 April 2025, [15].

[93] Applicant's submissions filed on 22 April 2025, [15].