JM v The Public Guardian - [2021] QCATA 50

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 143

Aon 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 106

ReevevHamlyn [2015] QCATA 133

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

1^st Respondent:

No appearance for the Public Guardian

2^nd Respondent:

No appearance for The Public Trustee of Queensland

3^rd Respondent (the adult):

J Keir, solicitor of Keir Steele Waldon Lawyers for MM

4^th Respondent:

No appearance for PM

5^th 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…

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 JM v The Public Guardian

Details

AGLC: JM v The Public Guardian [2021] QCATA 50
Case: [2021] QCATA 50
Decision Date: 16 April 2021

CaseChat Overview and Summary

In the matter of JM v The Public Guardian, the applicant, JM, sought an extension of time to bring an appeal against a decision made by the Tribunal in guardianship proceedings concerning his grandmother, MM. The Tribunal had issued a decision on 9 September 2020, which JM received on 23 September 2020. The decision refused all applications made by JM and made directions for filing of submissions in relation to costs of the proceedings. An application for leave to appeal or an appeal of a decision by the Tribunal must be made within 28 days after the 'relevant day'; the last day for filing of the application for leave to appeal or appeal in the time provided by the QCAT Act was therefore 21 October 2020. JM sought an extension of time on the grounds that he has numerous medical conditions which prevented him from filing his appeal within the prescribed time frame.

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

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 respect of the proceeding. On 9 September 2020, the Tribunal issued a decision in effect refusing all applications made by JM and making directions for filing of submissions in relation to costs of the proceedings. The existence of an enduring power of attorney (EPOA) was noted by the Tribunal. A declaration was made that MM had capacity for all personal and financial matters. An application for directions and an application for non-publication orders, respectively, were dismissed. The QCAT registry sent the decision of the Tribunal to the parties on 17 September 2020. JM acknowledges that he received the Tribunal’s decision on 23 September 2020. An application for leave to appeal or an appeal of a decision by the Tribunal must be made within 28 days after the ‘relevant day’;[1] relevantly here, the day a person is given notice of the decision. The last day for filing of the application for leave to appeal or appeal in the time provided by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) was therefore 21 October 2020.[2][1]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 143(3); s 143(5)(a).[2]Ibid. JM seeks an extension of time on the grounds that he (JM) has ‘numerous’ medical conditions which prevented him from filing his appeal within the prescribed time frame. JM submitted that he could provide a medical certificate as evidence in support; however, he requested that he not be required to provide the respondents with a copy of the medical certificate to protect his privacy. JM subsequently filed a report of Natasha Evans dated 19 December 2013 (the contents of which are now the subject of a non-publication order). This report was filed by JM on 21 January 2021, stating that his general medical practitioner was absent on leave until early February 2021. KM’s representatives suggest that JM did not properly serve the application, but in any event filed submissions in response. KM submits that an extension of time should not be granted as no reasonable explanation for the delay has been provided. Further, KM submits that the principle of finality and the interests of justice support the refusal of the extension of time, in circumstances where MM (the adult who is the subject of the proceeding) is a ‘frail pensioner’. In relation to the medical grounds for delay, KM submits that JM had not provided any ‘sworn or affirmed evidence’ explaining how his medical conditions affected his ability to comply with the time for filing. KM also contends that the application for leave to appeal or appeal lacks merit.

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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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 143 Aon 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 106 ReevevHamlyn [2015] QCATA 133
APPEARANCES & REPRESENTATION:
Applicant:	Self-represented
1^st Respondent:	No appearance for the Public Guardian
2^nd Respondent:	No appearance for The Public Trustee of Queensland
3^rd Respondent (the adult):	J Keir, solicitor of Keir Steele Waldon Lawyers for MM
4^th Respondent:	No appearance for PM
5^th 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)