Plc v Adult Guardian - [2013] QCATA 11

CITATION:

PLC v Adult Guardian [2013] QCATA 11

PARTIES:	PLC (Applicant)
v
Adult Guardian (Respondent)

APPLICATION NUMBER:

APL244-12

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Clare Endicott, Senior Member
Ron Joachim, Member

DELIVERED ON:

14 January 2013

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decision to appoint the Adult Guardian as guardian of PJP is set aside.

2. The application for guardianship is returned to the Tribunal for hearing by 2 members who shall not include the original member.

CATCHWORDS:

APPEAL – GUARDIANSHIP – whether error of law occurred – where Tribunal failed to take material consideration into account as to whether there was a need for guardian – where Tribunal failed to consider if another appropriate person available for appointment

Guardianship and Administration Act 2000, ss 9, 12, 14(2), 15 and schedule 1 – general principle 7(4)
Queensland Civil and Administrative Tribunal Act 2009, s 146

House v R [1936] HCA 40

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 (QCAT Act).

REASONS FOR DECISION

PJP is 52 years old and lives with his sister PLC. She has become his carer following the death of their mother. PJP receives day services from a service provider at their premises but returns home to the care of PLC.
PJP has cerebral palsy and intellectual disability. He has a severe communication difficulty and significant physical disabilities.
In November 2011, PLC applied to QCAT seeking to be appointed as PJP’s guardian and administrator.
The applications were heard in April 2012. The Adult Guardian was appointed as PJP’s guardian to make decisions about accommodation, health care and services until further order with a review in 5 years.
The Public Trustee was appointed as PJP’s administrator for all financial matters except day to day finances until further order.
PLC is seeking leave to appeal and is appealing the decision to appoint the Adult Guardian as PJP’s guardian. She considers she should be appointed.
The Tribunal had directed that her application for leave to appeal or appeal will be determined on the papers by written submissions and without an oral hearing.
PLC acknowledges that PJP expressed to the Tribunal that he wanted the Adult Guardian to be appointed as his guardian.
She submits that PJP did not have the capacity to understand the nature and effect of that decision and that the Tribunal should have given more weight to her submissions that she was appropriate for appointment as PJP’s guardian.
PLC further submits that PJP was not given enough information about the role of a guardian in order to make this decision on the day of the hearing and that he was not able to communicate properly with the Tribunal as he did not have his voice machine at the hearing and he could only reply yes or no by physical actions responding to questions.
PLC submits that the…

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 11
Decision Date: 14 January 2013

CaseChat Overview and Summary

The appeal before the court concerned the decision by the Tribunal to appoint the Adult Guardian as the guardian of PJP under the Guardianship and Administration Act 2000. The primary issue was whether the Tribunal had made an error of law by not adequately considering whether a guardian was necessary and if there were other suitable individuals available for the role. The court was tasked with reviewing the Tribunal's decision to ensure it adhered to the principles outlined in the Act, particularly the general principles in Schedule 1.

The central legal issues revolved around the Tribunal's failure to take into account material considerations regarding the necessity of appointing a guardian and the availability of another appropriate person for the role. The court examined whether the Tribunal had overlooked relevant factors or made incorrect assumptions that could have affected its decision. The court's analysis focused on whether the Tribunal's process was fair and whether it had correctly applied the statutory criteria under the Act.

The court found that the Tribunal had indeed erred in its process by not sufficiently considering the material aspects of whether a guardian was necessary and if other suitable individuals were available. The Tribunal had not fully explored all options and had made assumptions that were not adequately supported by the evidence. Consequently, the court set aside the decision to appoint the Adult Guardian as guardian of PJP. The case was returned to the Tribunal for reconsideration by two members who were not involved in the original decision-making process.

Orders

Orders of the court

1. The decision to appoint the Adult Guardian as guardian of PJP is set aside.

2. The application for guardianship is returned to the Tribunal for hearing by 2 members who shall not include the original member.

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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