JMS v Adult Guardian - [2013] QCATA 135

CITATION:

JMS v Adult Guardian & Anor [2013] QCATA 135

PARTIES:	JMS (Applicant/appellant)
v
MAJ Adult Guardian (Respondents)

APPLICATION NUMBER:

APL402-11 / APL037-13

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Alan Wilson, President
Leslie Clarkson, Member

DELIVERED ON:

30 April 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

Leave to appeal refused.

CATCHWORDS:

APPEAL – GUARDIANSHIP – whether error of law occurred – whether Tribunal failed to take material consideration into account on issue of capacity – whether there was a need for guardian – whether Tribunal failed to consider another appropriate person available for appointment – whether appointees incompetent

Guardianship and Administration Act 2000 (Qld), s 12, s 14(2), s 15, Schedule 1

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142

Adult Guardian v Hunt [2003] QSC 297, cited
Chambers v Jobling (1986) 7 NSWLR 1, cited
Dearman v Dearman (1908) 7 CLR 549, cited
DRF, Re [2003] QGAAT 4, cited
Fox v Percy (2003) 214 CLR 118, cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

RR (‘the adult’) is an 88 year old widow who resides in an aged care facility in Brisbane
In 2011 the Nurse Unit Manager at the Noosa Hospital made applications to the Tribunal seeking the appointment of the Adult Guardian and The Public Trustee of Queensland as the adult’s guardian and administrator respectively.
At that time, the adult and her spouse, JR, were inpatients at the Noosa Hospital, and applications were also made for similar appointments in relation to JR.
Applications were also made by their daughter, JMS, seeking her appointment as guardian and the Public Trustee as administrator.
In the result, by orders made on 29 September 2011 (‘the first decision’) the Tribunal appointed the Adult Guardian for decisions about the personal matters of health care, accommodation, and the provision of services. MAJ (a daughter of the adult and her spouse) was appointed as administrator for all financial matters for the adult and her spouse.
JMS (‘the applicant’) sought leave to appeal and is appealing the first decision in relation to the guardianship appointments for her parents.
In the interim, TS, a granddaughter, brought applications for a review of the guardianship and administration appointments, and sought the appointments of the applicant as guardian and the Public Trustee as administrator. The appeal process was placed on hold, pending the outcome of those applications.
Prior to the hearing of the review applications, JR passed away, and the appeals are now referable to the adult only.
The review application was heard on 23 November 2012, and by orders made on that day (‘the second decision’) the Tribunal continued the appointments of the guardian and administrator, with the Adult Guardian’s powers broadened to include decisions about with whom the adult has contact and/or visits.
The applicant also sought leave to appeal and…

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: [2013] QCATA 135
Decision Date: 30 April 2013

CaseChat Overview and Summary

The appeal arose from a decision of the Queensland Civil and Administrative Tribunal, which had determined that JMS required an adult guardian. The appellant, JMS, sought to challenge the Tribunal’s decision on several grounds, including the assertion that the Tribunal had failed to consider material considerations regarding their capacity and the appropriateness of the appointed guardians. The respondents to the appeal were the Queensland Office of the Public Guardian, the appointed guardians, and an adult who had been proposed as an alternative guardian.

The legal issues before the court centred on whether the Tribunal had erred in law by failing to take into account relevant factors in assessing JMS's capacity and the necessity of appointing a guardian. Additionally, the court had to determine whether the Tribunal had erred by not considering another proposed guardian who was available for appointment, and if the appointed guardians were competent to act in that capacity. The court had to examine the Tribunal’s process and findings to ensure they were conducted lawfully and with due regard to the relevant statutory provisions.

In assessing the appeal, the court found that the Tribunal had properly considered the relevant statutory criteria and had not made an error of law. The court was satisfied that the Tribunal had appropriately evaluated JMS's capacity and the necessity of appointing a guardian, taking into account all relevant material considerations. Furthermore, the court concluded that the Tribunal had considered the availability of another proposed guardian but found the appointed guardians to be suitable. The court found no basis to interfere with the Tribunal’s decision and dismissed the appeal.

The court refused leave to appeal, upholding the original decision of the Tribunal. The appointed guardians remained in their roles, and the Tribunal’s findings regarding JMS's capacity and the need for a guardian were affirmed.

Orders

Orders of the court

Leave to appeal refused.

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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