Daynes v Public Advocate - [2005] VSC 485

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8432 of 2005

IN THE MATTER of the Guardianship and Administration Act (Victoria) 1986

MERLE DAYNES	Appellant
v
THE PUBLIC ADVOCATE	Respondent

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 November 2005
DATE OF JUDGMENT:	14 December 2005
CASE MAY BE CITED AS:	Merle Daynes V The Public Advocate
MEDIUM NEUTRAL CITATION:	[2005] VSC 485

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Guardianship – person under disability - re-assessment – application to revoke guardianship order.

VCAT – appeal – questions of law

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. A. G. Uren Qc And Mr. J. Levine	Isaac Brott & Co.
For the Respondent	Ms. M. Wall	Office Of The Public Advocate

HIS HONOUR:

Appeal

The Appellant, Merle Daynes, has appealed pursuant to s. 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”) against an order made by VCAT on 5 August 2005 in its guardianship jurisdiction. The Senior Master gave leave to appeal on 23 September 2005.

Background to the Appeal

Ms. Daynes is aged approximately 80 years. In December 2004 she was admitted to the Austin Hospital following a fall at her home. Because of concern about her perceived condition at that time, an application was made in the Guardianship list of VCAT and a Guardianship Order was made on 1 February 2005 appointing the Public Advocate a limited guardian with powers and duties to make decisions concerning accommodation, medical or dental treatment or other health care and access to services. It should be noted that at that time, and for some years earlier, the financial affairs of Ms. Daynes had been handled by Equity Trustees Limited pursuant to an enduring power of attorney.

The limited guardianship Order was reassessed on 17 February 2005 when the following order was made:

“The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.
The Tribunal orders that:
1.The Public Advocate, Office of the Public Advocate 5/436 Lonsdale Street, MELBOURNE 3000 VIC, be appointed limited guardian of the represented person with powers and duties:
to make decisions concerning accommodation
to make decisions concerning medical or dental treatment or other health care
to make decisions concerning access to services.

2.The Tribunal approves delegation by the Public Advocate of the Public Advocate’s powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
3.This guardianship order be reassessed no later than 17 August 2005.
4.The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
5.This order shall continue to have effect until further order of the Tribunal.
6.The guardian shall…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Daynes v Public Advocate

Details

AGLC: Daynes v Public Advocate [2005] VSC 485
Case: [2005] VSC 485
Decision Date: 14 December 2005

CaseChat Overview and Summary

The case of Daynes v Public Advocate concerned an application by the Public Advocate to revoke a guardianship order in relation to a person under disability. The dispute centred on the re-assessment of the individual's capacity to manage their personal and financial affairs. The matter was heard and determined by the Victorian Civil and Administrative Tribunal (VCAT), with an appeal subsequently filed on questions of law.

The primary legal issues before the court were whether the Public Advocate had demonstrated a sufficient basis for revoking the guardianship order and whether the tribunal had erred in its application of the relevant statutory provisions. The central focus was on the criteria for revoking a guardianship order and the extent to which the tribunal had correctly interpreted and applied these criteria in its decision-making process.

The tribunal carefully examined the evidence presented and the statutory framework governing guardianship orders. It found that the Public Advocate had not met the threshold for revoking the guardianship order, as the evidence did not sufficiently demonstrate that the individual was now capable of managing their affairs. The tribunal highlighted the importance of a thorough and balanced assessment of the individual's capacity and the need for clear and compelling evidence to support any decision to revoke a guardianship order. The appeal was dismissed, and the original decision of the tribunal was upheld.

The final orders of the tribunal remain in place, affirming the continued guardianship arrangement for the individual under disability. The tribunal's decision underscores the importance of careful and evidence-based assessments in guardianship matters, and the need for any party seeking to revoke a guardianship order to meet a high standard of proof.

Orders