EN - [2021] QCATA 9 | CaseChat AU

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

EN [2021] QCATA 9

PARTIES:

In applications about matters concerning EN

APPLICATION NO/S:

APL254-19

ORIGINATING APPLICATION NO/S: GAA9247-19; GAA4533-19; GAA4534-19; GAA4535-19; GAA8762-19; GAA8763-19; GAA8764-19; GAA9087-19; GAA9088-19

MATTER TYPE:

Appeals

DELIVERED ON:

22 January 2021

HEARING DATE:

25 August 2020

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie
Member Browne

ORDERS:
1. Grounds One and Two are without merit.

2. The application for leave to appeal or appeal is dismissed.

CATCHWORDS:
APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where adult made enduring powers of attorney appointing three attorneys – where there was family conflict – where adult preferred some attorneys – where Tribunal below ordered enduring powers of attorney were invalid and revoked – where Tribunal below appointed administrators and dismissed application for the appointment of a guardian – whether Tribunal below erred by appointing two of the attorneys but not the third as administrators for the adult – whether the Tribunal erred by dismissing the application for the appointment of a guardian – whether Tribunal below erred by not appointing the Public Guardian and Public Trustee of Queensland – where grounds of appeal are without merit – where the application for leave to appeal or appeal is dismissed

Acts Interpretation Act 1954 (Qld) s 14A

Guardianship and Administration Act 2000 (Qld) ss 5(d), 12, 15, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 146(b)

Dunworth v Mirvac Qld Pty Ltd [2011] QCA 200

House v King (1936) 55 CLR 499
JMS v Adult Guardian & Anor [2013] QCATA 135
Lovell v Lovell (1950) 81 CLR 513
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362

APPEARANCES & REPRESENTATION:

Adult:

EN represented by McDuff & Guilfoyle

Applicant:

JN represented by David Topp of Counsel instructed by SLF Lawyers

Current Administrators:

DN represented by McDuff & Guilfoyle
AM self-represented

Public Trustee:

Adam Russell

REASONS FOR DECISION

On 26 August 2018, the Tribunal made orders under the Guardianship and Administration Act 2000 (Qld) (‘the GAA Act’) about Enduring Powers of Attorney (‘EPOA’) executed in 2016 and 2019 and applications concerning EN for the appointment of a guardian and an administrator.
JN is one of EN’s daughters who was a named attorney together with her sisters DN and AM under an EPOA executed in 2016. In 2019 another enduring power of attorney was executed by EN appointing AM and DN as attorneys. JN applied to the Tribunal in the proceeding below for the Public Guardian (‘PG’) to be appointed as EN’s guardian and the Public Trustee of Queensland (‘PTQ’) to be appointed as EN’s administrator.
Applications were also made in the proceeding below for the appointment of a guardian and an administrator by DN and CN, who is also EN’s child.
Following an oral hearing, the Tribunal below declared the…

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.

Keep reading for free

Create a free CaseChat account to read EN and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] QCATA 9
Decision Date: 22 January 2021

CaseChat Overview and Summary

In the matter concerning the enduring powers of attorney, the appeal was brought against a decision of the Tribunal, which had ordered that the powers of attorney were invalid and revoked. The adult had appointed three attorneys, but family conflict had arisen. The Tribunal appointed two of the attorneys as administrators for the adult and dismissed an application for the appointment of a guardian. The appellants, who were two of the appointed attorneys, argued that the Tribunal had erred in its decision. They contended that the Tribunal should have appointed all three attorneys as administrators and should have appointed the Public Guardian and Public Trustee of Queensland.

The central legal issues before the court were whether the Tribunal had erred in its decision to appoint only two of the three attorneys as administrators and whether it had erred in dismissing the application for the appointment of a guardian. Additionally, the court had to consider whether the Tribunal had erred in not appointing the Public Guardian and Public Trustee of Queensland. The court examined the nature of errors of law and the circumstances in which an appeal could be brought, focusing on the validity of the enduring powers of attorney and the appropriateness of the administrative and guardianship appointments made by the Tribunal.

The court found that the grounds of appeal were without merit. It held that the Tribunal's decision to appoint two of the three attorneys as administrators was not an error of law, as the Tribunal had discretion in making such appointments, particularly in the context of family conflict. Furthermore, the court determined that the dismissal of the application for the appointment of a guardian was not erroneous, as the Tribunal had sufficient reasons to do so, including the potential for conflict among the attorneys. The court also concluded that the Tribunal's decision not to appoint the Public Guardian and Public Trustee of Queensland was not an error of law, given the circumstances of the case and the Tribunal's broader discretion in making such appointments.

The application for leave to appeal or appeal was dismissed, affirming the Tribunal's decision as it pertained to the invalidity and revocation of the enduring powers of attorney, the appointment of administrators, and the dismissal of the application for the appointment of a guardian. The court's decision underscored the importance of the Tribunal's discretion in family conflict situations and the limited scope of appeal based on errors of law.

Orders

Orders of the court

1. Grounds One and Two are without merit.

2. The application for leave to appeal or appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.