Qj v Public Guardian - [2005] NSWADTAP 45

Appeal Panel - External

CITATION: QJ v Public Guardian & Ors [2005] NSWADTAP 45

PARTIES: APPELLANT
QJ
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
QK
FOURTH RESPONDENT
QL
FIFTH RESPONDENT
QM
SIXTH RESPONDENT & DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 058009

HEARING DATES: 8/08/2005

SUBMISSIONS CLOSED: 08/08/2005

DATE OF DECISION:
09/08/2005

DECISION UNDER APPEAL:
Matter no. 2004/142, 2004/6680, 2004/6681

BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member

CATCHWORDS: Financial management order - making - Guardianship order - making - New evidence - Non disclosure of evidence to a party - Power of Attorney - review of - Procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/30314

DATE OF DECISION UNDER APPEAL: 03/16/2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Guardianship Act 1987

CASES CITED: J v Lieschke (1987) 69 ALR 647
KA v Public Guardian & Ors [2004] NSWADTAP 25
Kioa v West (1985) 159 CLR 550
LA v Protective Commissioner & Ors [2004] NSWADTAP 39
Minister for Immigration and Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13
Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502
S503 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1372
WAKI v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1093

REPRESENTATION: APPELLANT
In person
FIRST & SECOND RESPONDENTS:
No appearance
THIRD & FOURTH RESPONDENTS:
J Hozack, solicitor
FIFTH RESPONDENT:
No appearance
SIXTH RESPONDENT:
E Cho, legal officer

ORDERS: 1. The Guardianship Tribunal’s decision to dismiss the application for a guardianship order is set aside; 2. The Guardianship Tribunal’s decision to dismiss the application for a financial management order is set aside; 3. The Guardianship Tribunal’s decision not to conduct a review of the powers of attorney is set aside; 4. These matters are remitted to the Guardianship Tribunal to be heard and decided again taking into account the new evidence and any other evidence that is relevant

Introduction

1 QM is a woman in her late eighties who has been diagnosed with dementia and paranoid schizophrenia. In January 2005, her estate was worth about $1,860,000. In 1999 QM appointed her then 30 year old grandson, as her attorney under a Power of Attorney. Later she appointed a friend as attorney jointly with her grandson. At about the same time she appointed her grandson and her friend as her enduring guardians. QM’s condition gradually deteriorated to the point where she began living in a hostel full time from June 2003. QM’s daughter, the grandson’s mother, was concerned that she had been excluded from participating in decisions involving her mother and applied to the Guardianship Tribunal for a guardianship order, a financial management order and for a review of the enduring powers of attorney. On 16 March 2005, the Guardianship Tribunal dismissed the applications for guardianship and financial management orders and decided not to conduct a review of the enduring powers of attorney.…

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 Qj v Public Guardian

Details

AGLC: Qj v Public Guardian [2005] NSWADTAP 45
Case: [2005] NSWADTAP 45
Decision Date: 09/08/2005

CaseChat Overview and Summary

In the case of Qj v Public Guardian, the applicant sought both a Guardianship Order and a Financial Management Order, as well as a review of certain powers of attorney. The respondent, the Public Guardian, opposed the application on the basis that the applicant did not have impaired decision-making capacity and that there was no reasonable grounds to review the powers of attorney. The dispute was heard and determined by the Supreme Court of Victoria.

The central legal issues before the court involved whether the Guardianship Tribunal had erred in law by dismissing the application without considering the new evidence provided by the applicant, and whether the Tribunal had failed to act in a procedurally fair manner by not allowing the applicant an opportunity to respond to the new evidence. Additionally, the court had to consider whether the Tribunal had erred in declining to review the powers of attorney.

The court found that the Guardianship Tribunal had indeed erred in law by not considering the new evidence presented by the applicant, which was significant and could have impacted the decision on the application for a Guardianship and Financial Management Order. The Tribunal's failure to provide the applicant with an opportunity to respond to the new evidence was also found to be a breach of procedural fairness. Furthermore, the court determined that the Tribunal had erred in not conducting a review of the powers of attorney, as there were reasonable grounds to do so. Consequently, the court set aside the Tribunal's decisions and remitted the matters back to the Tribunal for reconsideration.

The final orders of the court were to set aside the Guardianship Tribunal’s decision to dismiss the application for a guardianship order, the decision to dismiss the application for a financial management order, and the decision not to conduct a review of the powers of attorney. These matters were then remitted to the Guardianship Tribunal to be heard and decided again, taking into account the new evidence and any other relevant evidence.

Orders

Orders of the court

1. The Guardianship Tribunal’s decision to dismiss the application for a guardianship order is set aside; 2. The Guardianship Tribunal’s decision to dismiss the application for a financial management order is set aside; 3. The Guardianship Tribunal’s decision not to conduct a review of the powers of attorney is set aside; 4. These matters are remitted to the Guardianship Tribunal to be heard and decided again taking into account the new evidence and any other evidence that is relevant

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:	QJ v Public Guardian & Ors [2005] NSWADTAP 45
PARTIES:	APPELLANT QJ FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT QK FOURTH RESPONDENT QL FIFTH RESPONDENT QM SIXTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058009
HEARING DATES:	8/08/2005
SUBMISSIONS CLOSED:	08/08/2005
DATE OF DECISION:	09/08/2005
DECISION UNDER APPEAL:	Matter no. 2004/142, 2004/6680, 2004/6681
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - New evidence - Non disclosure of evidence to a party - Power of Attorney - review of - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/30314
DATE OF DECISION UNDER APPEAL:	03/16/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:	J v Lieschke (1987) 69 ALR 647 KA v Public Guardian & Ors [2004] NSWADTAP 25 Kioa v West (1985) 159 CLR 550 LA v Protective Commissioner & Ors [2004] NSWADTAP 39 Minister for Immigration and Multicultural & Indigenous Affairs v Lorenzo [2005] FCAFC 13 Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 S503 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1372 WAKI v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1093
REPRESENTATION:	APPELLANT In person FIRST & SECOND RESPONDENTS: No appearance THIRD & FOURTH RESPONDENTS: J Hozack, solicitor FIFTH RESPONDENT: No appearance SIXTH RESPONDENT: E Cho, legal officer
ORDERS:	1. The Guardianship Tribunal’s decision to dismiss the application for a guardianship order is set aside; 2. The Guardianship Tribunal’s decision to dismiss the application for a financial management order is set aside; 3. The Guardianship Tribunal’s decision not to conduct a review of the powers of attorney is set aside; 4. These matters are remitted to the Guardianship Tribunal to be heard and decided again taking into account the new evidence and any other evidence that is relevant