Mg v The Public Guardian

Case [2021] QCATA 89


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

2nd Respondent:

Self-represented

3rd Respondent:

Tinker, T solicitor of The Will & All solicitors

4th Respondent:

No appearance

5th Respondent:

No appearance

REASONS FOR DECISION

  1. MG and MH seek leave to appeal or appeal a…

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Details
AGLC
Mg v The Public Guardian [2021] QCATA 89
Case
[2021] QCATA 89
Decision Date

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

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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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