DAMA v Public Guardian [2020] QCATA 161

Date: 2 December 2020
Tribunal: Queensland Civil and Administrative Tribunal
Tribunal Member: Senior Member Howard and Member Traves
HRA Sections: ss 13, 25
Rights Considered: Right to privacy and reputation
Other Legislation: Guardianship and Administration Act 2000 (Qld), ss 103, 108, 109, 114A, 119, 130; Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 28, 58, 62, 66, 123(3)(a)(ii), 145
Keywords: Guardianship

This case concerned an application for a stay of the operation of orders made by the Tribunal in relation to guardianship proceedings arising from a dispute between DAMA and DEA, the attorneys for DA. The Tribunal recognised that section 25 of the Human Rights Act 2019 (Qld) provides for the right not to have a person’s privacy unlawfully or arbitrarily interfered with, but noted that human rights may be subject to reasonable limitation.

This case concerned a number of guardianship proceedings arising from a dispute between DAMA and DEA, the attorneys for DA, appointed under a number of different Enduring Powers of Attorney executed between 2016 and 2019. DAMA and DEA had made various applications to the Tribunal and in response, the Tribunal made a series of Orders in 2019 and 2020. At issue here were the Orders of the Tribunal made on 14 February 2020 for DAMA to produce unredacted copies of all statements relating to the financial transactions of specified bank accounts. These proceedings concerned an application by DAMA for a stay of the operation of these orders until appeal proceedings had been determined. DAMA appealed against these Orders on the basis that some of the orders were an invasion of DAMA’s privacy, some of the orders were in relation to accounts shared with DAMA’s partner (a non-party to the proceeding and an invasion of his privacy), and the other documents had been produced or were not relevant to the matter because there was no co-mingling of DA’s funds during the specified period.

Although DAMA did not rely upon the Human Rights Act 2019 (Qld) in submissions, the Tribunal recognised that section 25 provides for the right not to have a person’s privacy unlawfully or arbitrarily interfered with. The Tribunal went on to note that section 13 of the Human Rights Act 2019 (Qld) allows a human right to be subject to reasonable limitation which is demonstrably justifiable. The Tribunal stated, ‘[w]ithout making a finding at this preliminary stage’ that ‘in respect of the intermingling of funds with the adult’s funds, an argument that the requirement to produce personal statements (used to perform transactions for DA) is not reasonably justifiable in light of their relevance to DA’s financial matters, in circumstances where DAMA seeks to be appointed as administrator, would have limited merit’: at [32].  

The Tribunal refused to stay the application in relation to the orders to produce DAMA’s personal bank records, including those shared with her partner. The Tribunal made an order granting a stay of operation of the orders requiring the production of certain bank statements pending the finalisation of the appeal proceedings.

Visit the reported judgement: https://www.queenslandjudgments.com.au/caselaw/qcata/2020/161/pdf