FDK - [2024] QCATA 19

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

FDK [2024] QCATA 19

PARTIES:

In applications about matters concerning FDK

APPLICATION NO/S:

APL141-22

ORIGINATING APPLICATION NOS:

GAA10475-21; GAA10476-21; GAA10477-21

MATTER TYPE:

Appeals

DELIVERED ON:

15 February 2024

HEARING DATE:

7 December 2023

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne, Presiding
Member Kanowski

ORDERS:

1. The appeal is allowed.

2. The decision of the Tribunal dated 11 April 2022 is set aside and the matter (GAA10475-21, GAA10476-21 and GAA10477-21) is remitted back to the Tribunal for reconsideration by a differently constituted Tribunal with the hearing of additional evidence.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where the Tribunal held concerns about the lack of material or evidence about certain matters – where the Tribunal adjourned to make directions for the provision of further material – where the Tribunal made a subsequent decision based on the information before it without seeking provision of further material – where the parties were not afforded the opportunity to provide further submissions – where the appellant submits that the Tribunal failed to afford procedural fairness – where the appellant submits that the Tribunal failed to consider the best interests of the adult – whether the grounds of appeal raise a question of law – whether leave to appeal is required – whether the Tribunal failed to afford procedural fairness – whether the Tribunal failed to consider the views, wishes and preferences of the adult

Guardianship and Administration Act 2000 (Qld), s 5, s 11B, s 81, s 103, s 125

Human Rights Act 2019 (Qld), s 13, s 48
Powers of Attorney Act 1998 (Qld), s 41, s 50, s 111A
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 29, s 146

Bucknall v Guardianship and Administration Tribunal (No 2) [2009] 2 Qd R 402

CMM v Public Trustee of Queensland [2016] QCATA 139
Kioa v West (1985) 159 CLR 550
Lambourne and Ors v Marrable and Ors [2023] QSC 219

TJ v The Public Trustee of Queensland & Anor [2023] QCA 158

APPEARANCES & REPRESENTATION:

Adult:

Catherine Delaney, ADA Law, representative appointed by the Tribunal

Appellant:

William Redpath, solicitor, Hawkes Lawyers

Respondents:

Self-represented

Public Guardian:

Anthony Wherritt

Public Trustee:

Vicky Hurley

REASONS FOR DECISION

This is an appeal from a decision of the Tribunal sitting in the guardianship jurisdiction. On 5 April 2022, the Tribunal heard applications filed by FDK’s daughter, NNG, who had applied to QCAT for various orders and directions about the validity of an EPOA and, in the alternative, for the appointment of a guardian to make decisions about FDK’s personal matters and an administrator to make decisions about FDK’s financial matters.
By way of background, NNG was one of three attorneys appointed under an enduring power of attorney (‘EPOA’) dated 13 February 2015 to make decisions about FDK’s financial, personal and health matters. There was also an EPOA dated 20 November 2019,…

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.

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Details

Case: [2024] QCATA 19
Decision Date: 15 February 2024

CaseChat Overview and Summary

The appeal before the court involved a decision made by a Tribunal in a matter concerning the care of an adult. The appellant challenged the Tribunal’s decision, contending that it was flawed due to procedural errors and a failure to consider certain interests of the adult. The court was tasked with determining whether the appellant’s grounds for appeal were valid and if the Tribunal had erred in its handling of the case.

The central legal issues the court had to address were whether the grounds of appeal presented questions of law that warranted the court's intervention and if leave to appeal was required. Additionally, the court needed to consider whether the Tribunal had failed to afford procedural fairness and whether it had adequately taken into account the views, wishes, and preferences of the adult in question.

In its reasoning, the court found that the Tribunal had indeed made errors that impacted the fairness of the proceedings. The Tribunal had adjourned the case to seek additional material but subsequently made a decision without allowing the parties to provide further submissions. This omission was deemed to have breached the principles of procedural fairness. Furthermore, the court held that the Tribunal had not fully considered the adult’s views, wishes, and preferences, which was a critical oversight in such cases. Consequently, the court concluded that the appeal was valid and granted leave to appeal, finding that the Tribunal's decision was flawed.

The court ordered that the appeal be allowed, the decision of the Tribunal dated 11 April 2022 be set aside, and the matter be remitted back to the Tribunal for reconsideration by a differently constituted panel. The Tribunal was instructed to hear additional evidence to ensure a fair and comprehensive review of the case.

Orders

Orders of the court

1. The appeal is allowed.

2. The decision of the Tribunal dated 11 April 2022 is set aside and the matter (GAA10475-21, GAA10476-21 and GAA10477-21) is remitted back to the Tribunal for reconsideration by a differently constituted Tribunal with the hearing of additional evidence.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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