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Mg v The Public Guardian

Mg v The Public Guardian

Case [2021] QCATA 89 13 July 2021

Appeal

Jurisdiction

Res Judicata

Natural Justice & Procedural Fairness

Civil Litigation & Procedure

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QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

MG & anor v The Public Guardian & anor [2021] QCATA 89

PARTIES: MG
MH

(applicants/appellants)

v

PUBLIC GUARDIAN
HD
TG
PUBLIC TRUSTEE OF QUEENSLAND
TCAR

(respondents)

APPLICATION NO:

APL132-19

ORIGINATING APPLICATION NOS:

G33475; GAA9677-16; GAA9678-16; GAA12348-16

MATTER TYPE:

Appeals

DELIVERED ON:

13 July 2021

HEARING DATE:

2 March 2021

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard, Presiding Member
Member Traves

ORDERS:

1.       Leave to appeal is granted.

2.       The appeal is allowed.

3.       The presumption that the adult had capacity to transfer her house property from her sole name to herself, MG and MH as joint tenants on 4 November 2015 is not rebutted.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERRORS OF MIXED LAW AND FACT – where application for declaration of capacity to enter into property transaction – whether presumption of capacity applied by tribunal – whether correct test for capacity applied by tribunal – whether certain evidence not considered – where no evidence for certain findings – whether error in findings of fact – whether natural justice observed – whether Member demonstrated bias

Guardianship and Administration Act 2000 (Qld), s 146, s 147, sch 4

Powers of Attorney Act 1998 (Qld), s 73

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146, s 147

Beverley v Watson (Owen J, Supreme Court of Western Australia, 14 September 1994, unreported BC9401884)

Cachia v Grech [2009] NSWCA 232
Collins v May [2000] WASC 29
Crago v McIntyre [1976] 1 NSWLR 729
Duncan v IPP [2013] NSWCA 189
Ericson v Queensland Building Services Authority [2013] QCA 391
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Fehily v Atkinson [2016] EWHC 3069
Gibbons v Wright (1954) 91 CLR 423
GMAL v The Public Guardian [2018] QCATA 107
Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388
Hamill v Wright [2018] QSC 197
Hanna v Raoul (2018) NSWCA 201
Harrison v Meehan [2017] QCA 315
Maher v Adult Guardian [2011] QCA 225
McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577
Partington v Urquhart (No 2) [2018] QCATA 120
Perochinsky v Kirschner [2013] NSWSC 400
QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41
Re Beaney, decd [1978] 1 WLR 770
Re C (TH) and the Protected Estates Act [1999] NSWSC 456
Re Caldwell [1999] QSC 182
Scott v Scott (2012) NSWSC 1541
Stone v Registrar of Titles [2012] WASC 21
TCAR [2017] QCAT 101
TCAR [2019] QCAT 414
Timbury v Coffee (1941) 66 CLR 277

APPEARANCES & REPRESENTATION:

Applicants/Appellants:

Ryall, CJ, counsel instructed by Vandeleur & Todd solicitors

1st Respondent:

No appearance

2^nd Respondent:

Self-represented

3^rd Respondent:

Tinker, T solicitor of The Will & All solicitors

4^th Respondent:

No appearance

5^th Respondent:

No appearance

REASONS FOR DECISION

MG and MH seek leave to appeal or appeal a…

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 Mg v The Public Guardian

Details

AGLC: Mg v The Public Guardian [2021] QCATA 89
Case: [2021] QCATA 89
Decision Date: 13 July 2021

CaseChat Overview and Summary

In the matter of Mg v The Public Guardian, the Court of Appeal was tasked with reviewing a decision made by the Guardianship and Administration Tribunal regarding the capacity of an individual, referred to as MG, to enter into a property transaction. The appeal centred on whether the tribunal had correctly applied the presumption of capacity and the appropriate legal test to determine MG's capacity. It was further argued that the tribunal had failed to consider certain evidence, made findings without evidentiary support, and potentially erred in its application of the law. The matter also involved questions about whether the principles of natural justice were observed and whether the tribunal member exhibited any bias.

The primary legal issues before the Court of Appeal involved whether the tribunal had erred in law by failing to apply the correct presumption of capacity and the appropriate legal test for determining MG's capacity. The appeal further contended that the tribunal had not considered relevant evidence and had made findings without sufficient evidence. The Court had to determine if these errors constituted a miscarriage of justice warranting an appeal. Additionally, the Court examined whether the tribunal had complied with natural justice and whether any perceived bias by the tribunal member affected the fairness of the proceedings.

In its judgment, the Court found that the tribunal had indeed erred in its application of the presumption of capacity and the relevant legal test. The tribunal had failed to consider certain evidence that was pertinent to the assessment of MG's capacity, and some of its findings were not adequately supported by the evidence. These errors were deemed significant enough to constitute a miscarriage of justice. The Court also found that the tribunal member had not observed the principles of natural justice and had demonstrated potential bias, further undermining the fairness of the tribunal's decision. Consequently, the Court allowed the appeal and set aside the tribunal's decision.

The Court granted leave to appeal and allowed the appeal, thereby setting aside the tribunal's decision. The Court found that the presumption of capacity had not been rebutted, and MG had the capacity to transfer her house property to herself and another individual on the specified date. The Court's decision meant that the tribunal's findings and conclusions were not upheld, and the matter would need to be reconsidered in light of the Court's findings. This outcome underscores the importance of correctly applying legal principles and ensuring procedural fairness in capacity determinations.

Orders

Orders of the court

1. Leave to appeal is granted.

2. The appeal is allowed.

3. The presumption that the adult had capacity to transfer her house property from her sole name to herself, MG and MH as joint tenants on 4 November 2015 is not rebutted.

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.

Citations

AGLC Citation

Mg v The Public Guardian [2021] QCATA 89

Most Recent Citation

RAG v HDG [2022] QCATA 79

Cases citing this decision · 3 of 3 shown

VSI v The Public Guardian
[2023] QCATA 25 Para 2

…reasons can be read any other way and be consistent with the reasoning of the learned member which led to that conclusion. [45][2021] QCATA 89. [46] MG & anor v the Public Guardian & anor [2021] QCATA 89, [44], [45].…
TCN v Public Guardian
[2022] QCATA 158 Para 25

…iding the application. [22]For example, see discussion in RAG v HDG & Ors [2022] QCATA 79; and MG & anor v The Public Guardian and anor [2021] QCATA 89.…
RAG v HDG
[2022] QCATA 79 Para 11

…nor v The Public Guardian & anor[94] and I adopt what was said at [94-96] as to the requisite understanding required at the time of the gift.[95] [94][2021] QCATA 89. [95]Ibid [94]-[96]…

View all 3 citing cases →

Cases cited in this decision · 22 of 22 shown

The State of Western Australia v JC (A Child)
[2021] WASC 21 Para 22

…reme Court of Western Australia, 14 September 1994, unreported, BC9401884 at [15]); Collins v May [2000] WASC 29 at [59]; Stone v Registrar of Titles [2021] WASC 21 at [151]). [60][2013] NSWSC 400.…
TCAR
[2019] QCAT 414 Para 4

…The learned Member’s reasons for his decision are at TCAR [2019] QCAT 414.…
Hanna v Raoul
[2018] NSWCA 201 Para 5

…, in respect of the transaction, the person had the capacity to understand the nature of the transaction “when it is explained”; see also Hanna v Raoul (2018) NSWCA 201, at [54]-[60].…
Hamill v Wright
[2018] QSC 197 Para 5

…e concept of “mental capacity” must be assessed relative to the nature, terms, purpose and context of the particular transaction.[37] [36][2018] QSC 197. [37]Ibid at [157] referring to Scott v Scott [2012] NSWSC 1541 at [205] per Lindsay J.…
Partington & Anor v Urquhart (No 2)
[2018] QCATA 120

…011] QCA 225 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Partington v Urquhart (No 2) [2018] QCATA 120 Perochinsky v Kirschner [2013] NSWSC 400 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Re Beaney, decd [1978] 1 WLR 770 Re C (TH) and the Protected Estates Act [1999] NSWSC…
Gmal v The Public Guardian
[2018] QCATA 107 Para 1

…ter be listed for a Directions Hearing and that the Tribunal below consider whether it requires further evidence.[19] [19] GMAL v The Public Guardian [2018] QCATA 107.…
Harrison v Meehan
[2017] QCA 315

…Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hamill v Wright [2018] QSC 197 Hanna v Raoul (2018) NSWCA 201 Harrison v Meehan [2017] QCA 315 Maher v Adult Guardian [2011] QCA 225 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Partington v Urquhart (No 2) [2018] QCATA 120 Perochins…
TCAR
[2017] QCAT 101

…[1999] NSWSC 456 Re Caldwell [1999] QSC 182 Scott v Scott (2012) NSWSC 1541 Stone v Registrar of Titles [2012] WASC 21 TCAR [2017] QCAT 101 TCAR [2019] QCAT 414 Timbury v Coffee (1941) 66 CLR 277 APPEARANCES & REPRESENTATION: Applicants/Appellants: Ryall, CJ, counsel instructed by Vandeleur & Todd solicitors 1st R…
Ericson v Queensland Building Services Authority
[2013] QCA 391

…WASC 29 Crago v McIntyre [1976] 1 NSWLR 729 Duncan v IPP [2013] NSWCA 189 Ericson v Queensland Building Services Authority [2013] QCA 391 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fehily v Atkinson [2016] EWHC 3069 Gibbons v Wright (1954) 91 CLR 423 GMAL v The Public Guardian [2018] QCATA 107 Gle…
Duncan v IPP
[2013] NSWCA 189 Para 2

…de that the Member had not brought an impartial mind to the issue.[46] [46] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Duncan v IPP [2013] NSWCA 189 at [147].…
Perochinsky v Kirschner
[2013] NSWSC 400 Para 8

…and the donor must understand the claims of all potential donees and the extent of the property to be disposed of. [39] Perochinsky v Kirschner [2013] NSWSC 400 at [96]; Crago v McIntyre [1976] 1 NSWLR 729 at 740‑741; Beverley v Watson (Owen J, Supreme Court of Western Australia, 14 September 1994, unreported BC940…
Scott v Scott
[2012] NSWSC 1541

…d R 41 Re Beaney, decd [1978] 1 WLR 770 Re C (TH) and the Protected Estates Act [1999] NSWSC 456 Re Caldwell [1999] QSC 182 Scott v Scott (2012) NSWSC 1541 Stone v Registrar of Titles [2012] WASC 21 TCAR [2017] QCAT 101 TCAR [2019] QCAT 414 Timbury v Coffee (1941) 66 CLR 277 APPEARANCES & REPRESENTATION: Applicants/App…
Stone v Registrar of Titles
[2012] WASC 21 Para 8

…urt of Western Australia, 14 September 1994, unreported BC9401884) at [15]; Collins v May [2000] WASC 29 at [59]; Stone v Registrar of Titles [2012] WASC 21 at [151]. [40][1976] 1 NSWLR 729 at 740-741. [41][2000] WASC 29.…
Maher v Adult Guardian
[2011] QCA 225 Para 2

…32(2) of the QCAT Act provides that the Tribunal may, if appropriate, conduct all or a part of a proceeding entirely on the basis of documents. [48][2011] QCA 225. [49]QCAT Act, s 28(1). [50]QCAT Act, s 28(2). [51]QCAT Act, s 28(3)(d).…
Cachia v Grech
[2009] NSWCA 232 Para 1

…sion of the appellate court or tribunal would be to the public advantage?[11] [8] QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41. [9] Cachia v Grech [2009] NSWCA 232 at [13]. [10]Ibid. [11] Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 at 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Austral…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 2

…at the Directions Hearing, may have led a fair-minded observer to conclude that the Member had not brought an impartial mind to the issue.[46] [46] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; Duncan v IPP [2013] NSWCA 189 at [147].…
Collins by her next friend Poletti v May
[2000] WASC 29 Para 8

…29 at 740‑741; Beverley v Watson (Owen J, Supreme Court of Western Australia, 14 September 1994, unreported BC9401884) at [15]; Collins v May [2000] WASC 29 at [59]; Stone v Registrar of Titles [2012] WASC 21 at [151]. [40][1976] 1 NSWLR 729 at 740-741. [41][2000] WASC 29.…
Re Caldwell
[1999] QSC 182 Para 5

…he had capacity, especially that of Dr Keys and the solicitor, the onerous nature of the task of the applicants should not be underestimated.[23] [22][1999] QSC 182. [23]Ibid at [13].…
Re C (TH) and the Protected Estates Act
[1999] NSWSC 456 Para 1

…kes about her property, good or bad, with happy or disastrous effect, so long as she is capable.[67] [65] Hanna v Raoul (2018) NSWCA 201 at [54]. [66][1999] NSWSC 456. [67]Ibid at [17].…
Gibbons v Wright
[1954] HCA 17 Para 5

…otherwise, a person’s capacity would rest on the quality of the advice he or she received, which is plainly incorrect. [27] Gibbons v Wright (1954) 91 CLR 423 where the High Court held that the question of capacity to make a gift inter vivos was to be determined by asking whether, in respect of the transaction, the…
Timbury v Coffee
[1941] HCA 22 Para 11

…re additional considerations in understanding the nature and effect of the property transaction, as opposed to making a will. [44] Timbury v Coffee (1941) 66 CLR 277; Crago v McIntyre (1976) 1 NSWLR 729, 740-741.…
[1978] 1 WLR 770
[1978] 1 WLR 770

…) [2018] QCATA 120 Perochinsky v Kirschner [2013] NSWSC 400 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Re Beaney, decd [1978] 1 WLR 770 Re C (TH) and the Protected Estates Act [1999] NSWSC 456 Re Caldwell [1999] QSC 182 Scott v Scott (2012) NSWSC 1541 Stone v Registrar of Titles [2012] WASC 21 TCAR [2017] QCAT…

Legislation cited in this decision · 3

Guardianship and Administration Act 2000 (Qld)
146 2 mentions (from Para 1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
142(3)(b), 28 2 mentions (from Para 1)
Powers of Attorney Act 1998 (Qld)
73 1 mention (from Para 7)

CITATION:	MG & anor v The Public Guardian & anor [2021] QCATA 89
PARTIES:	MG MH
(applicants/appellants)
v
PUBLIC GUARDIAN HD TG PUBLIC TRUSTEE OF QUEENSLAND TCAR
(respondents)
APPLICATION NO:	APL132-19
ORIGINATING APPLICATION NOS:	G33475; GAA9677-16; GAA9678-16; GAA12348-16
MATTER TYPE:	Appeals
DELIVERED ON:	13 July 2021
HEARING DATE:	2 March 2021
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard, Presiding Member Member Traves
ORDERS:	1. Leave to appeal is granted. 2. The appeal is allowed. 3. The presumption that the adult had capacity to transfer her house property from her sole name to herself, MG and MH as joint tenants on 4 November 2015 is not rebutted.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERRORS OF MIXED LAW AND FACT – where application for declaration of capacity to enter into property transaction – whether presumption of capacity applied by tribunal – whether correct test for capacity applied by tribunal – whether certain evidence not considered – where no evidence for certain findings – whether error in findings of fact – whether natural justice observed – whether Member demonstrated bias Guardianship and Administration Act 2000 (Qld), s 146, s 147, sch 4 Powers of Attorney Act 1998 (Qld), s 73 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 142, s 146, s 147 Beverley v Watson (Owen J, Supreme Court of Western Australia, 14 September 1994, unreported BC9401884) Cachia v Grech [2009] NSWCA 232 Collins v May [2000] WASC 29 Crago v McIntyre [1976] 1 NSWLR 729 Duncan v IPP [2013] NSWCA 189 Ericson v Queensland Building Services Authority [2013] QCA 391 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Fehily v Atkinson [2016] EWHC 3069 Gibbons v Wright (1954) 91 CLR 423 GMAL v The Public Guardian [2018] QCATA 107 Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388 Hamill v Wright [2018] QSC 197 Hanna v Raoul (2018) NSWCA 201 Harrison v Meehan [2017] QCA 315 Maher v Adult Guardian [2011] QCA 225 McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 Partington v Urquhart (No 2) [2018] QCATA 120 Perochinsky v Kirschner [2013] NSWSC 400 QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41 Re Beaney, decd [1978] 1 WLR 770 Re C (TH) and the Protected Estates Act [1999] NSWSC 456 Re Caldwell [1999] QSC 182 Scott v Scott (2012) NSWSC 1541 Stone v Registrar of Titles [2012] WASC 21 TCAR [2017] QCAT 101 TCAR [2019] QCAT 414 Timbury v Coffee (1941) 66 CLR 277
APPEARANCES & REPRESENTATION:
Applicants/Appellants:	Ryall, CJ, counsel instructed by Vandeleur & Todd solicitors
1st Respondent:	No appearance
2^nd Respondent:	Self-represented
3^rd Respondent:	Tinker, T solicitor of The Will & All solicitors
4^th Respondent:	No appearance
5^th Respondent:	No appearance