Ss v Public Guardian - [2015] QCATA 142

CITATION:

SS v Public Guardian [2015] QCATA 142

PARTIES:	SS (Appellant)
v
Public Guardian (Respondent)

APPLICATION NUMBER:

APL522-14

MATTER TYPE:

Appeals

HEARING DATE:

7 September 2015

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown
Member Browne

DELIVERED ON:

21 September 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Appeal allowed.

2. The decision of 28 October 2014 is set aside.

3. The application for review of the appointment of a guardian is returned to the Tribunal for reconsideration according to law.

4. The application for review of the appointment of a guardian is listed for a directions hearing on a date to be advised.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL - GUARDIANSHIP AND ADMINISTRATION – where guardian appointed – where application received to review the appointment of the guardian – where applicant raised issues about competency of the guardian – where tribunal found there have been no issues raised by the applicant which show the guardian is not competent – where the Tribunal continued the appointment of the guardian – whether tribunal gave adequate reasons – whether tribunal misdirected itself on the evidence - whether grounds for leave to appeal

Guardianship and Administration Act 2000 (Qld), s 12, s 15, s 31
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146, s 147

Camden v McKenzie (2008) 1 Qd R 39; cited
Commissioner for Children and Young People and Child Guardian v Grose [2013] QCATA 348; cited
Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1996] 2 Qd R 462; cited
Franklin & Ors v Burleigh Town Village Pty Ltd [2014] QCATA 183; cited
To v Choi [2013] QCATA 27; cited

REPRESENTATIVES:

APPLICANT:

SS represented by Mr C Templeton of Counsel appearing pro-bono, instructed by Sparke Helmore Lawyers

RESPONDENT:

Public Guardian represented by Mr T Brown, Acting Regional Manager of the Office of the Public Guardian

REASONS FOR DECISION

SM is 85 years old and no longer has the capacity to make decisions. Because there was a need for decisions to be made about SM’s personal matters, the Tribunal appointed the public guardian as her guardian.[1]
[1]Order made on 19 June 2012 appointing the adult guardian (now the public guardian) to make decisions about accommodation, with whom SM has contact and/or visits, health care and provision of services, to be reviewed in five (5) years.
SM’s daughter, SS, was not happy with the decisions made by the public guardian. SS had concerns about her mother’s accommodation and the decision made that her mother permanently live in the Carramar aged care facility (not Erowal aged care facility).
SS also had concerns about the public guardian’s failure to investigate an incident involving physical contact with SM at Carramar on 21 January 2014; and the public guardian’s decision to implement a contact plan following the incident on 21 January 2014 without consulting the family of SM.
SS wanted the Tribunal to review the appointment of a guardian because she said the public guardian was no longer competent. SS wanted…

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: [2015] QCATA 142
Decision Date: 21 September 2015

CaseChat Overview and Summary

The case before the court involved an appeal by the Public Guardian against a decision of the Tribunal to review the appointment of a guardian. The nature of the dispute was whether the Tribunal had given adequate reasons for its decision and whether it had misdirected itself on the evidence. The Court of Appeal heard the appeal and found that the Tribunal had not adequately considered the evidence presented by the applicant and had misdirected itself on the evidence. The court found that the grounds for leave to appeal were made out and allowed the appeal. The decision of the Tribunal to review the appointment of the guardian was set aside and the matter was returned to the Tribunal for reconsideration according to law. The application for review of the appointment of the guardian was also listed for a directions hearing.

The legal issues that the court had to decide were whether the Tribunal had given adequate reasons for its decision and whether it had misdirected itself on the evidence. The court found that the Tribunal had not adequately considered the evidence presented by the applicant and had misdirected itself on the evidence. The court found that the grounds for leave to appeal were made out and allowed the appeal. The court held that the Tribunal's decision to review the appointment of the guardian was set aside and the matter was returned to the Tribunal for reconsideration according to law.

In reaching its decision, the court considered the evidence presented to the Tribunal and found that the Tribunal had not adequately considered the evidence. The court held that the Tribunal had misdirected itself on the evidence and that the grounds for leave to appeal were made out. The court found that the decision of the Tribunal to review the appointment of the guardian was set aside and the matter was returned to the Tribunal for reconsideration according to law. The court also listed the application for review of the appointment of the guardian for a directions hearing.

In summary, the court found that the Tribunal had not adequately considered the evidence presented by the applicant and had misdirected itself on the evidence. The court allowed the appeal and set aside the decision of the Tribunal to review the appointment of the guardian. The matter was returned to the Tribunal for reconsideration according to law and the application for review of the appointment of the guardian was listed for a directions hearing.

Orders

Orders of the court

1. Appeal allowed.

2. The decision of 28 October 2014 is set aside.

3. The application for review of the appointment of a guardian is returned to the Tribunal for reconsideration according to law.

4. The application for review of the appointment of a guardian is listed for a directions hearing on a date to be advised.

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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