QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
JM v The Public Guardian & Ors [2021] QCATA 50
PARTIES: JM (applicant/appellant)
V
THE PUBLIC GUARDIAN
THE PUBLIC TRUSTEE OF QUEENSLAND
MM
PM
KM(respondent)
APPLICATION NO:
APL338-20
ORIGINATING APPLICATION NO:
G41730; GAA4527-20; GAA4529-20; GAA6922-20; GAA6924-20
MATTER TYPE:
Appeals
DELIVERED ON:
16 April 2021
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Senior Member Howard
ORDERS:
1. The application for an extension of time to file the application for leave to appeal or appeal is refused.
CATCHWORDS:
APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN REFUSED – where applicant seeks an extension of time to bring an appeal against a decision in guardianship proceedings – where applicant seeks extension of time on medical grounds – where insufficient medical evidence – whether adequate explanation for delay – whether appeal grounds have merit on preliminary view – whether presumption of capacity is relevant to consideration of prejudice – relevance of the nature of guardianship proceedings and the general principles under the Guardianship and Administration Act 2000 (Qld) to consideration of an application for extension of time to bring an appeal
Anti-Discrimination Act 1991 (Qld), s 101
Guardianship and Administration Act 2000 (Qld), s 11, s 11B, s 103
Powers of Attorney Act 1998 (Qld), s 33
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 43, s 61, s 143Aon Risk Services Pty Ltd v Australian National University (2009) 239 CLR 175
Crime and Misconduct Commission v Chapman [2011] QCAT 229
Musgrave v Grimberg [2019] QCATA 106ReevevHamlyn [2015] QCATA 133
APPEARANCES & REPRESENTATION:
Applicant:
Self-represented
1st Respondent:
No appearance for the Public Guardian
2nd Respondent:
No appearance for The Public Trustee of Queensland
3rd Respondent (the adult):
J Keir, solicitor of Keir Steele Waldon Lawyers for MM
4th Respondent:
No appearance for PM
5th Respondent:
A Fortt, solicitor of Mackey Wales Law for KM
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
REASONS FOR DECISION
The Tribunal made a decision in a guardianship proceeding on 9 September 2020. JM filed an application for leave to appeal or appeal the decision on 6 November 2020, outside of the prescribed time limit for filing an application for leave to appeal or appeal. Therefore, it can only proceed if an extension of time to file the application for leave to appeal or appeal is granted.
For the reasons that follow, I refuse to extend the time for filing the application for leave to appeal or appeal.
Background
JM made several applications in the Tribunal’s guardianship jurisdiction seeking a range of orders relating to his grandmother, MM. The applications sought orders including: a declaration that MM has impaired capacity; that KM be removed as an attorney for MM; an order for MM to undergo assessment of her capacity; and a non‑publication order in…
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- AGLC
- JM v The Public Guardian [2021] QCATA 50
- Case
- [2021] QCATA 50
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether an adequate explanation for the delay had been provided, whether the appeal grounds have merit on a preliminary view, and whether the presumption of capacity is relevant to the consideration of prejudice. The court also had to consider the nature of guardianship proceedings and the general principles under the Guardianship and Administration Act 2000 (Qld) when considering an application for an extension of time to bring an appeal. The court found that there was insufficient medical evidence to support JM's claim that his medical conditions prevented him from filing the appeal within the prescribed time frame. Furthermore, the court found that the appeal grounds lacked merit on a preliminary view. The court also found that the presumption of capacity was not relevant to the consideration of prejudice in this case. Finally, the court found that the nature of guardianship proceedings and the general principles under the Guardianship and Administration Act 2000 (Qld) supported the refusal of the extension of time.
In conclusion, the court refused to extend the time for filing the application for leave to appeal or appeal. The court found that there was insufficient medical evidence to support JM's claim that his medical conditions prevented him from filing the appeal within the prescribed time frame, and that the appeal grounds lacked merit on a preliminary view. The court also found that the presumption of capacity was not relevant to the consideration of prejudice in this case, and that the nature of guardianship proceedings and the general principles under the Guardianship and Administration Act 2000 (Qld) supported the refusal of the extension of time. The application for an extension of time to file the application for leave to appeal or appeal is refused.
Orders
Orders of the court
1. The application for an extension of time to file the application for leave to appeal or appeal is refused.
Background
Background to the litigation
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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