Shorten v Bell-Gallie - [2014] QCA 300

SUPREME COURT OF QUEENSLAND

CITATION:

Shorten v Bell-Gallie [2014] QCA 300

PARTIES:

IAN RODGER WILLIAM SHORTEN
(applicant)
v
SHIRLEY BELL-GALLIE
(respondent)

FILE NO/S:

Appeal No 11869 of 2013
QCAT Appeal No 1 of 2013

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave Queensland Civil and Administrative Tribunal Act

ORIGINATING COURT:

Queensland Civil and Administrative Tribunal at Brisbane

DELIVERED ON:

25 November 2014

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2014

JUDGE:

Fraser JA and North and Flanagan JJ
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

The application filed 10 December 2013 for leave to appeal be refused.1.

The application for leave to adduce new evidence filed 8 January 2014 be refused.2.

No order as to costs.3.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was the fiancée of a permanently disabled woman – where the woman had three members of her family appointed as her administrators pursuant to the Guardianship and Administration Act 2000 (Qld) (“GAA”) – where those three family members were replaced with the Public Trustee of Queensland by the Queensland Civil and Administrative Tribunal (“QCAT”) – where the Public Trustee was replaced as administrator with the respondent – where the applicant applied for a review of the respondent’s appointment as administrator pursuant to s 31 of the GAA prior to the appointment’s expiry – where the review application was dismissed without a hearing in accordance with a practice direction – where the applicant appealed the dismissal of the review application to the Appeal Division of QCAT (“Appeal Tribunal”) – where the applicant applied to introduce new evidence into the Appeal Tribunal and was unsuccessful – where the applicant’s appeal to the Appeal Tribunal was dismissed – where the applicant applies for leave to appeal the Appeal Tribunal’s decision to the Court of Appeal – where an appeal to the Court of Appeal can only be on a question of law – where the applicant submits that he was denied natural justice, that there was a failure to take into account relevant considerations, that irrelevant considerations were taken into account and that the Appeal Tribunal misconstrued s 146 of the QCAT Act – whether leave ought to be granted to appeal against the decision of the Appeal Tribunal

APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the applicant was the fiancée of a permanently disabled woman – where the woman had three members of her family appointed as her administrators pursuant to the Guardianship and Administration Act 2000 (Qld) (“GAA”) – where those three family members were replaced with the Public Trustee of Queensland by the Queensland Civil and Administrative Tribunal (“QCAT”) – where the Public Trustee was replaced as administrator…

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 Shorten v Bell-Gallie

Details

AGLC: Shorten v Bell-Gallie [2014] QCA 300
Case: [2014] QCA 300
Decision Date: 25 November 2014

CaseChat Overview and Summary

The applicant, Mr Shorten, is the fiancée of a woman who has been permanently disabled and was appointed administrators under the Guardianship and Administration Act 2000 (Qld). The administrators were replaced by the Public Trustee of Queensland, and subsequently by the respondent, who is the current administrator. Mr Shorten applied for a review of the respondent's appointment but the application was dismissed without a hearing. He appealed to the Appeal Division of the Queensland Civil and Administrative Tribunal, which was unsuccessful. He now applies for leave to appeal to the Court of Appeal and seeks to introduce new evidence.

The legal issues before the court were whether leave should be granted to appeal the Appeal Tribunal's decision and whether fresh evidence should be admitted in the Court of Appeal. The court considered whether the applicant was denied natural justice, whether relevant considerations were not taken into account, irrelevant considerations were taken into account, and whether the Appeal Tribunal misconstrued section 146 of the QCAT Act.

The court found that the appeal was limited to a question of law and that the applicant had not demonstrated any ground for appeal on that basis. The court also found that the application for new evidence was an attempt to adduce fresh evidence, which is not permitted in appeals to the Court of Appeal. The court found that the application for leave to appeal and the application for new evidence were both without merit.

The application for leave to appeal and the application for new evidence are both refused. There is no order as to costs.

Orders

Orders of the court

The application filed 10 December 2013 for leave to appeal be refused.1.

The application for leave to adduce new evidence filed 8 January 2014 be refused.2.

No order as to costs.3.

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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CITATION:	Shorten v Bell-Gallie [2014] QCA 300
PARTIES:	IAN RODGER WILLIAM SHORTEN (applicant) v SHIRLEY BELL-GALLIE (respondent)
FILE NO/S:	Appeal No 11869 of 2013 QCAT Appeal No 1 of 2013
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave Queensland Civil and Administrative Tribunal Act
ORIGINATING COURT:	Queensland Civil and Administrative Tribunal at Brisbane
DELIVERED ON:	25 November 2014
DELIVERED AT:	Brisbane
HEARING DATE:	15 August 2014
JUDGE:	Fraser JA and North and Flanagan JJ Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	The application filed 10 December 2013 for leave to appeal be refused.1. The application for leave to adduce new evidence filed 8 January 2014 be refused.2. No order as to costs.3.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – WHEN APPEAL LIES – BY LEAVE OF COURT – GENERALLY – where the applicant was the fiancée of a permanently disabled woman – where the woman had three members of her family appointed as her administrators pursuant to the Guardianship and Administration Act 2000 (Qld) (“GAA”) – where those three family members were replaced with the Public Trustee of Queensland by the Queensland Civil and Administrative Tribunal (“QCAT”) – where the Public Trustee was replaced as administrator with the respondent – where the applicant applied for a review of the respondent’s appointment as administrator pursuant to s 31 of the GAA prior to the appointment’s expiry – where the review application was dismissed without a hearing in accordance with a practice direction – where the applicant appealed the dismissal of the review application to the Appeal Division of QCAT (“Appeal Tribunal”) – where the applicant applied to introduce new evidence into the Appeal Tribunal and was unsuccessful – where the applicant’s appeal to the Appeal Tribunal was dismissed – where the applicant applies for leave to appeal the Appeal Tribunal’s decision to the Court of Appeal – where an appeal to the Court of Appeal can only be on a question of law – where the applicant submits that he was denied natural justice, that there was a failure to take into account relevant considerations, that irrelevant considerations were taken into account and that the Appeal Tribunal misconstrued s 146 of the QCAT Act – whether leave ought to be granted to appeal against the decision of the Appeal Tribunal APPEAL AND NEW TRIAL – APPEAL - PRACTICE AND PROCEDURE – QUEENSLAND – POWERS OF COURT – FURTHER EVIDENCE – where the applicant was the fiancée of a permanently disabled woman – where the woman had three members of her family appointed as her administrators pursuant to the Guardianship and Administration Act 2000 (Qld) (“GAA”) – where those three family members were replaced with the Public Trustee of Queensland by the Queensland Civil and Administrative Tribunal (“QCAT”) – where the Public Trustee was replaced as administrator…