WJB v BLZ - [2019] QCATA 92

QUEENSLAND CIVIL AND
ADMINISTRATIVE APPEALS TRIBUNAL

CITATION:

WJB v BLZ; WDE [2019] QCATA 92

PARTIES:

WJB
(applicant/appellant)
v
WDE; BLZ
(respondents)

APPLICATION NO:

APL107-18

ORIGINATING APPLICATION NO:

GAA734-18

MATTER TYPE:

Appeals

DELIVERED ON:

20 June 2019

HEARING DATE:

25 February 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Gardiner

ORDERS:
CATCHWORDS:

1. The application to appeal is dismissed.

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – WHAT IS – GENERALLY – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions of adult to avoid debt – where issue not raise at first instance hearing

GUARDIANS, COMMITTEE, ADMINISTRATIONS, MANAGERS AND RECEIVERS – OTHER MATTERS –where the tribunal declared adult did not have capacity to make complex financial decision – where adult executed enduring power of attorney document – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions to avoid debt – where issue not raised at first instance hearing

Guardianship and Administration Act 2000 (Qld) s 15, s 11, s 43, Schedule 1
Property Law Act 1974 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315
Metwally v University of Wollongong (1983) 59 ALJR 481
PL v PT & ORs [2018] QCATA 114
The Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402
Walker & Anor v Davlyn [2003] QCA 565
Water Board v Moustakas (1988) 180 CLR 491
ZHH v ZHI [2018] NSWCATAP 107

APPEARANCES & REPRESENTATION:

Applicant:

Mr V. Brennan of Counsel, instructed by Corney & Lind Solicitors

Respondent:

Trevor Bell

REASONS FOR DECISION

The adult, WDE is a 90- year- old widow currently residing in a retirement village.
On 30 July 1996, WDE executed an Enduring Power of Attorney (‘the enduring document’) appointing jointly and severally her daughters, WJB and BLZ. The enduring document authorised the attorneys to do anything that the adult may lawfully authorise an attorney to do. The enduring document was made pursuant to the Property Law Act 1974 (Qld) as in force at that time and so related to financial decision making only.
A written loan agreement (‘the agreement’) was entered into between WDE and BLZ on 14 September 1999. Clause one of the agreement stated that the total debt owed by BLZ to WDE was the amount of $218,910.63. Clause three of the agreement outlined that the loan may be repaid at any time but must be repaid in full within 60 days of demand by WDE or alternatively, within 25 years from the date of agreement, that is by 14 September 2024, when WDE would be aged 96 years. As at June 2017, the total outstanding amount of the loan was $114,261.62.
On…

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 WJB v BLZ

Details

AGLC: WJB v BLZ [2019] QCATA 92
Case: [2019] QCATA 92
Decision Date: 20 June 2019

CaseChat Overview and Summary

The appeal in WJB v BLZ was brought before the court by WJB, a daughter of an adult, WDE, who had been declared to lack the capacity to make complex financial decisions. The case involved the appointment of a guardian for health matters and an enduring power of attorney for financial matters. BLZ, another daughter of WDE, was appointed as the guardian for health matters, while WJB remained the single attorney under the enduring document. WJB alleged that BLZ would compromise health decisions of WDE to avoid debt. This issue was not raised at the first instance hearing.

The primary legal issue before the court was whether the tribunal had erred in appointing BLZ as the guardian for health matters. The court was required to examine the appropriateness of BLZ's appointment under Section 15 of the Guardianship and Administration Act 2000 (Qld). The court also needed to consider whether the tribunal had properly applied the general principles and healthcare principles in making its decision.

The court found that the tribunal had appropriately considered the general principles and healthcare principles in appointing BLZ as the guardian for health matters. The tribunal had considered the compatibility of the proposed applicants with WDE, the accessibility of the proposed applicants, and the appropriateness and competence of the proposed applicants to perform their functions and exercise their powers. The tribunal had also considered the interests of the proposed applicants and WDE and found that they were not likely to conflict over healthcare decisions. The court concluded that the tribunal had not erred in appointing BLZ as the guardian for health matters.

The court dismissed the appeal, finding that there had been no error of law in the tribunal's decision. The court held that the tribunal had appropriately considered the general principles and healthcare principles in making its decision and had not erred in appointing BLZ as the guardian for health matters.

Orders

Orders of the court

1. The application to appeal is dismissed.

APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – WHAT IS – GENERALLY – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions of adult to avoid debt – where issue not raise at first instance hearing

GUARDIANS, COMMITTEE, ADMINISTRATIONS, MANAGERS AND RECEIVERS – OTHER MATTERS –where the tribunal declared adult did not have capacity to make complex financial decision – where adult executed enduring power of attorney document – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions to avoid debt – where issue not raised at first instance hearing

Guardianship and Administration Act 2000 (Qld) s 15, s 11, s 43, Schedule 1

Property Law Act 1974 (Qld)

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146

Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315

Metwally v University of Wollongong (1983) 59 ALJR 481

PL v PT & ORs [2018] QCATA 114

The Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402

Walker & Anor v Davlyn [2003] QCA 565

Water Board v Moustakas (1988) 180 CLR 491

ZHH v ZHI [2018] NSWCATAP 107

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

Section 14 of the GAA provides that the tribunal may appoint a person as guardian for a matter only if, relevantly for the purposes of the appeal, having regard to the matters mentioned in section 15(1) the tribunal considers the person appropriate for appointment. Further, the tribunal may appoint the public guardian as guardian for a matter only if there is no other appropriate person available for appointment for the matter. Section 15 sets out the appropriateness considerations and relevantly states::1) In deciding whether a person is appropriate for appointment as a guardian or administrator for an adult, the tribunal must consider the following matters ( "appropriateness considerations" ) —(a) the general principles and whether the person is likely to apply them;(b) if the appointment is for a health matter—the health care principle and whether the person is likely to apply it;(c) the extent to which the adult’s and person’s interests are likely to conflict;(d) whether the adult and person are compatible including, for example, whether the person has appropriate communication skills or appropriate cultural or social knowledge or experience, to be compatible with the adult;(e) if more than 1 person is to be appointed—whether the persons are compatible;(f) whether the person would be available and accessible to the adult;(g) the person’s appropriateness and competence to perform functions and exercise powers under an appointment order.2) The fact a person is a relation of the adult does not, of itself, mean the adult’s and person’s interests are likely to conflict. The learned member then reasoned[29]:I consider that the interests of either of the proposed applicants and the adult are not likely to conflict over healthcare decisions. I believe that they will obtain relevant information. They will try to ensure that decisions are made in accordance with the general principles and the healthcare principles, and that they will make decisions devoid of personal interests in the outcome. I’m also satisfied that BLZ is more accessible, not only from a geographic point of view, but she appears, clearly from the evidence, as the person that WDE will look to, to give the primary or initial response to inquiries about several matters, including health care. I believe that BLZ has been contacted, even recently, in relation – by the adult in relation to queries that she has, that she’s able to be called upon, she’s willing to be called upon and she’s more accessible, in a physical sense, than perhaps WJB would.It is not a mater, as I say, necessarily of just physical proximity. People overseas are appointed as guardians for healthcare consents. It’s a matter of understanding the function, acting without any conflict of interest and applying not only the general principles and the healthcare principles, but acting in accordance with the requirements of proper substituted decision-making regimes. I’m satisfied, in all, that BLZ has a more appropriate background in providing support of this type to her mother and that she would be appropriate in those circumstances, to be the guardian for healthcare. …[29]Transcript 1-65, lines 4-23.

CITATION:	WJB v BLZ; WDE [2019] QCATA 92
PARTIES:	WJB (applicant/appellant) v WDE; BLZ (respondents)
APPLICATION NO:	APL107-18
ORIGINATING APPLICATION NO:	GAA734-18
MATTER TYPE:	Appeals
DELIVERED ON:	20 June 2019
HEARING DATE:	25 February 2019
HEARD AT:	Brisbane
DECISION OF:	Senior Member Guthrie Member Gardiner
ORDERS: CATCHWORDS:	1. The application to appeal is dismissed. APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – ERROR OF LAW – WHAT IS – GENERALLY – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions of adult to avoid debt – where issue not raise at first instance hearing GUARDIANS, COMMITTEE, ADMINISTRATIONS, MANAGERS AND RECEIVERS – OTHER MATTERS –where the tribunal declared adult did not have capacity to make complex financial decision – where adult executed enduring power of attorney document – where one daughter appointed as guardian for health matters – where another daughter remained single attorney under enduring document – where attorney alleged guardian would compromise health decisions to avoid debt – where issue not raised at first instance hearing Guardianship and Administration Act 2000 (Qld) s 15, s 11, s 43, Schedule 1 Property Law Act 1974 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142, s 146 Haritos v Federal Commissioner of Taxation (2015) 233 FCR 315 Metwally v University of Wollongong (1983) 59 ALJR 481 PL v PT & ORs [2018] QCATA 114 The Waterways Authority v Fitzgibbon; Mosman Municipal Council v Fitzgibbon; Middle Harbour Yacht Club v Fitzgibbon (2005) 221 ALR 402 Walker & Anor v Davlyn [2003] QCA 565 Water Board v Moustakas (1988) 180 CLR 491 ZHH v ZHI [2018] NSWCATAP 107
APPEARANCES & REPRESENTATION:
Applicant:	Mr V. Brennan of Counsel, instructed by Corney & Lind Solicitors
Respondent:	Trevor Bell