POL - [2024] QCAT 136

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

POL [2024] QCAT 136

PARTIES:

In applications about matters concerning POL

APPLICATION NO/S:

GAA2324-24
GAA2334-24

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

26 March 2024 (delivered ex tempore)

HEARING DATE:

26 March 2024

HEARD AT:

Brisbane

DECISION OF:

Senior Member Browne

ORDERS:

1.     POL does not have capacity to make decisions about his legal matters relating to proceedings under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

2.     The guardianship order made by the Tribunal on 10 May 2022 is changed by appointing the Public Guardian as guardian for POL for the following personal matters:

(a)     Accommodation;

(b)     Provision of services, including in relation to the National Disability Insurance Scheme; and

(c)     Legal matters in relation to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

3.     This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in four (4) years.

4.     The Principal Registrar of the Queensland Civil and Administrative Tribunal provide to the Registrar of the Supreme Court a copy of the following material by 4:00pm on 28 March 2024:

(a)     A copy of the transcript of the Tribunal’s oral reasons delivered on 26 March 2024;

(b)     A copy of the Tribunal’s written reasons containing the transcript of the oral reasons, to be delivered and published on the Supreme Court Library website in a de-identified format;

(c)     Order of the Tribunal made on 26 March 2024;

(d)     A copy of the report of the Public Guardian dated 18 March 2024; and

(e) A copy of the report prepared by Rebecca Anderson of ADA Law, the representative appointed under s 125 of the Guardianship and Administration Act 2000 (Qld) dated 20 March 2024.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where prisoner is respondent to review of continuing detention order – where prisoner has intellectual disability and acquired brain injury – whether prisoner lacks capacity – whether prisoner has capacity to make decisions about legal matters in relation to Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether a declaration of capacity should be made – whether appointment of a guardian should be continued – whether a guardian should be appointed for legal matters in relation to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27

Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11, s 11B, s 12, s 15, s 31, s 125, s 146, sch 4

Human Rights Act 2019 (Qld), s 15, s 19, s 29

Attorney-General v SLS (2021) 8 Qd R 128

Attorney-General for the State of Queensland v Grant (No 2) (2022) 12 Qd R 357
Aziz v Prestige Property Services Pty Ltd and Another [2007] QSC 265
Bucknall v Guardianship and Administration Tribunal (No 1) (2009) 2 Qd R 402

NJ

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 POL

Details

AGLC: POL [2024] QCAT 136
Case: [2024] QCAT 136
Decision Date: 26 March 2024 (delivered ex tempore)

CaseChat Overview and Summary

The case before the court involved a prisoner, identified as POL, who had an intellectual disability and an acquired brain injury. The court was tasked with determining whether POL had the capacity to make decisions about his legal matters in relation to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The decision also involved whether a declaration of capacity should be made and whether the appointment of a guardian should continue. The Queensland Civil and Administrative Tribunal had previously made a guardianship order on 10 May 2022, which the court was reviewing.

The court had to decide if POL lacked capacity to make decisions about his legal matters concerning the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Additionally, it had to determine if the guardianship order should be continued and if a guardian should be appointed specifically for his legal matters in relation to the Act. The court also needed to consider the reports of the Public Guardian and the representative appointed under section 125 of the Guardianship and Administration Act 2000 (Qld).

After considering the evidence and the reports, the court found that POL did not have the capacity to make decisions about his legal matters relating to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The court changed the guardianship order by appointing the Public Guardian as POL's guardian for specific personal matters, including legal matters in relation to the Act. The guardianship order would remain in effect until further order by the Tribunal, with a review scheduled in four years. The Principal Registrar of the Queensland Civil and Administrative Tribunal was directed to provide the Registrar of the Supreme Court with copies of specified documents by a specified date.

The court issued several orders, including a declaration that POL does not have the capacity to make decisions about his legal matters relating to the Act. It also appointed the Public Guardian as POL's guardian for accommodation, provision of services, and legal matters concerning the Act, with a review of the appointment in four years. Additionally, the Principal Registrar of the Queensland Civil and Administrative Tribunal was instructed to provide various documents to the Registrar of the Supreme Court by a specified date.

Orders

Orders of the court

1. POL does not have capacity to make decisions about his legal matters relating to proceedings under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).

2. The guardianship order made by the Tribunal on 10 May 2022 is changed by appointing the Public Guardian as guardian for POL for the following personal matters:

(a) Accommodation;

(b) Provision of services, including in relation to the National Disability Insurance Scheme; and

3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in four (4) years.

4. The Principal Registrar of the Queensland Civil and Administrative Tribunal provide to the Registrar of the Supreme Court a copy of the following material by 4:00pm on 28 March 2024:

(a) A copy of the transcript of the Tribunal’s oral reasons delivered on 26 March 2024;

(b) A copy of the Tribunal’s written reasons containing the transcript of the oral reasons, to be delivered and published on the Supreme Court Library website in a de-identified format;

(d) A copy of the report of the Public Guardian dated 18 March 2024; and

(e) A copy of the report prepared by Rebecca Anderson of ADA Law, the representative appointed under s 125 of the Guardianship and Administration Act 2000 (Qld) dated 20 March 2024.

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.

CITATION:	POL [2024] QCAT 136
PARTIES:	In applications about matters concerning POL
APPLICATION NO/S:	GAA2324-24 GAA2334-24
MATTER TYPE:	Guardianship and administration matters for adults
DELIVERED ON:	26 March 2024 (delivered ex tempore)
HEARING DATE:	26 March 2024
HEARD AT:	Brisbane
DECISION OF:	Senior Member Browne
ORDERS:	1. POL does not have capacity to make decisions about his legal matters relating to proceedings under *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld). 2. The guardianship order made by the Tribunal on 10 May 2022 is changed by appointing the Public Guardian as guardian for POL for the following personal matters: (a) Accommodation; (b) Provision of services, including in relation to the National Disability Insurance Scheme; and (c) Legal matters in relation to proceedings under the *Dangerous Prisoners (Sexual Offenders) Act 2003* (Qld). 3. This appointment remains current until further order of the Tribunal. The appointment is reviewable and is to be reviewed in four (4) years. 4. The Principal Registrar of the Queensland Civil and Administrative Tribunal provide to the Registrar of the Supreme Court a copy of the following material by 4:00pm on 28 March 2024: (a) A copy of the transcript of the Tribunal’s oral reasons delivered on 26 March 2024; (b) A copy of the Tribunal’s written reasons containing the transcript of the oral reasons, to be delivered and published on the Supreme Court Library website in a de-identified format; (c) Order of the Tribunal made on 26 March 2024; (d) A copy of the report of the Public Guardian dated 18 March 2024; and (e) A copy of the report prepared by Rebecca Anderson of ADA Law, the representative appointed under s 125 of the *Guardianship and Administration Act 2000* (Qld) dated 20 March 2024.
CATCHWORDS:	HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – GUARDIANSHIP AND SIMILAR APPOINTMENTS – GENERAL PRINCIPLES – where prisoner is respondent to review of continuing detention order – where prisoner has intellectual disability and acquired brain injury – whether prisoner lacks capacity – whether prisoner has capacity to make decisions about legal matters in relation to Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether a declaration of capacity should be made – whether appointment of a guardian should be continued – whether a guardian should be appointed for legal matters in relation to proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27 Guardianship and Administration Act 2000 (Qld), s 5, s 6, s 11, s 11B, s 12, s 15, s 31, s 125, s 146, sch 4 Human Rights Act 2019 (Qld), s 15, s 19, s 29 Attorney-General v SLS (2021) 8 Qd R 128 Attorney-General for the State of Queensland v Grant (No 2) (2022) 12 Qd R 357 Aziz v Prestige Property Services Pty Ltd and Another [2007] QSC 265 Bucknall v Guardianship and Administration Tribunal (No 1) (2009) 2 Qd R 402 NJ