QBL - [2014] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: QBL [2014] NSWCATGD 8
Hearing dates: 13 January 2014
Decision date: 13 January 2014
Jurisdiction: Guardianship Division
Before: Booby R, Senior Member (Legal)
Ovadia T, Senior Member (Professional)
Porter L, General Member (Community)
Decision:
Applications to review enduring power of attorney and enduring guardianship dismissed for lack of jurisdiction; applications for guardianship and financial management adjourned.

Catchwords:
ENDURING POWER OF ATTORNEY - review of making and operation and effect - jurisdiction - jurisdiction to review interstate instrument.

ENDURING GUARDIANSHIP - review of appointment of enduring guardian - jurisdiction - jurisdiction to review interstate instrument.
PROCEDURAL FAIRNESS - opportunity to give evidence and to be heard - oral applications made at hearing - adjournment offered.
Legislation Cited: Guardianship Act 1987 (NSW)
Powers of Attorney Act 2003 (NSW)
Powers of Attorney Act 1998 (Queensland)
Category: Principal judgment
Parties: Mr QBL (subject person)
Ms BBN (applicant)
Mr QAD (attorney)
Mr JAD (attorney)
The Public Guardian
The NSW Trustee and Guardian
File Number(s): 55223
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

reasons for decision

What the Tribunal decided

The Tribunal adjourned for approximately four weeks to date to be fixed, the application made by Ms BBN seeking guardianship in relation to Mr QBL.

AND

The Tribunal also adjourned for approximately four weeks to date to be fixed, the application made by Ms BBN seeking financial management for Mr QBL.

AND

The Tribunal dismissed the application seeking review of an enduring power of attorney.

AND

The Tribunal dismissed the application for a review of the appointment of an enduring guardian.

Background

Mr QBL is 53 years old and at the time of the hearing he was a patient at a hospital in Sydney. The Tribunal was advised that Mr QBL had lived in Queensland in his own unit and was then admitted to hospital in Queensland on 8 July 2013. He is said to have been discharged in October 2013 and to have then moved to Sydney to reside with Mr QAD.

On 9 September 2013 Mr QBL executed a Power of Attorney under the Powers of Attorney Act 1998 (Queensland) appointing Mr QAD and his wife, Mrs JAD severally as his attorneys for financial and personal/health matters.

On 23 December 2013 the Tribunal received an application to review an enduring power of attorney. The applicant was Ms BBN who sought a review of the document executed by Mr QBL on 9 September 2013 because in her opinion Mr QBL's finances were not being used in his best interests.

On 10 January 2013 the Tribunal received an application from Ms BBN seeking a review of the appointment of an enduring guardian, being that part of the Enduring Power of Attorney made by Mr QBL on 9 September 2013 by which he provided…

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 QBL

Details

AGLC: QBL [2014] NSWCATGD 8
Case: [2014] NSWCATGD 8
Decision Date: 13 January 2014

CaseChat Overview and Summary

In the case of QBL, the dispute arose between the parties concerning the validity and operation of an enduring power of attorney and an enduring guardianship established in interstate instruments. The matter was brought before the court for review, challenging the jurisdiction to assess these documents. The applicant, who was seeking to have the enduring power of attorney and guardianship reviewed, argued that the court had the requisite authority to examine these matters despite their interstate origin. The respondent opposed the jurisdiction, contending that the court lacked the authority to review instruments made in another jurisdiction.

The central legal issues the court needed to address were whether it had the jurisdiction to review the interstate enduring power of attorney and the enduring guardianship, and whether procedural fairness was observed in the handling of the applications. The court had to determine if it could exercise its powers to review these documents and whether it had correctly afforded the parties the opportunity to present evidence and be heard, particularly in relation to oral applications made at the hearing and the offer of adjournment.

The court found that it did not have the jurisdiction to review the interstate enduring power of attorney and the enduring guardianship, as it was not empowered to do so under the relevant statutory provisions. Consequently, the applications to review these documents were dismissed. The court also considered the procedural fairness aspect, noting that it had offered the parties an opportunity to give evidence and be heard, including providing an adjournment when necessary. Despite this, the court's lack of jurisdiction ultimately precluded it from reviewing the interstate instruments.

The final orders of the court were to dismiss the applications to review the enduring power of attorney and the enduring guardianship due to a lack of jurisdiction. The applications for guardianship and financial management were adjourned, indicating that the court was willing to proceed with those matters once the jurisdictional issues were resolved.

Orders

Orders of the court

Applications to review enduring power of attorney and enduring guardianship dismissed for lack of jurisdiction; applications for guardianship and financial management adjourned.

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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Medium Neutral Citation:	QBL [2014] NSWCATGD 8
Hearing dates:	13 January 2014
Decision date:	13 January 2014
Jurisdiction:	Guardianship Division
Before:	Booby R, Senior Member (Legal) Ovadia T, Senior Member (Professional) Porter L, General Member (Community)
Decision:	Applications to review enduring power of attorney and enduring guardianship dismissed for lack of jurisdiction; applications for guardianship and financial management adjourned.
Catchwords:	ENDURING POWER OF ATTORNEY - review of making and operation and effect - jurisdiction - jurisdiction to review interstate instrument. ENDURING GUARDIANSHIP - review of appointment of enduring guardian - jurisdiction - jurisdiction to review interstate instrument. PROCEDURAL FAIRNESS - opportunity to give evidence and to be heard - oral applications made at hearing - adjournment offered.
Legislation Cited:	Guardianship Act 1987 (NSW) Powers of Attorney Act 2003 (NSW) Powers of Attorney Act 1998 (Queensland)
Category:	Principal judgment
Parties:	Mr QBL (subject person) Ms BBN (applicant) Mr QAD (attorney) Mr JAD (attorney) The Public Guardian The NSW Trustee and Guardian
File Number(s):	55223
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).