X v Guardianship and Administration Board - [2020] TASSC 11

[2020] TASSC 11

COURT: SUPREME COURT OF TASMANIA

CITATION: X v Guardianship and Administration Board [2020] TASSC 11

PARTIES:  X, F
  X, P
  v
  GUARDIANSHIP AND ADMINISTRATION BOARD
  ATTORNEY-GENERAL

FILE NO:  2243/2019
DELIVERED ON:  28 April 2020
DELIVERED AT:  Hobart
HEARING DATE:  On the Papers
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Administrative tribunals – Statutory appeals from administrative authorities to courts – Appeal against decision of Guardianship and Administration Board – Whether grounds of appeal raise a question of law for determination – Whether leave to appeal on any other ground should be granted – Whether Board's determination was beyond the realms of reasonableness or was clearly mistaken – Particular Circumstances – Appellants residing in family home owned by represented person rent free – Board found conflict of interest preventing first appellant being appointed administrator of the represented person – Finding of conflict of interest open to the Board.

Guardianship and Administration Act 1995 (Tas) s 6, s 54, s 76.
R v District Court; Ex Parte White (1966) 116 CLR 644; Mahony v Industrial Registrar of New South Wales (1986) 8 NSWLR 1; Waterford v The Commonwealth (1987) 163 CLR 54; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; Repatriation Commission v O'Brien (1995) 155 CLR 422; Attorney General for the State of New South Wales v X [2000] NSWCA 199, 49 NSWLR 653; Protective Security Pty Ltd v Bedelph [2004] TASSC 128, 13 Tas R 354; Tanase v Acme Engineering (Tas) Pty Ltd [2006] TASSC 100; XYZ v State Trustees Ltd [2006] VSC 444, 25 VAR 402; Hussain v Minister for Foreign Affairs [2008] FCAFC 128, 169 FCR 241; Wesiak v D & R Constructions (Aust) Pty Ltd [2016] NSWCA 353, referred to.
Slinko v Guardianship and Administration Tribunal [2006] QSC 39, 2 Qd R 279, followed.

Aust Dig Administrative Law [1147].

REPRESENTATION:

Counsel:
             Appellants:  D Zeeman
             Respondents:  P Turner SC
Solicitors:
             Appellants:  Butler McIntyre & Butler
             Respondents:  Director of Public Prosecutions

Judgment Number: [2020] TASSC 11
Number of paragraphs: 43

Serial No 11/2020
File No 2243/2019

X v GUARDIANSHIP AND ADMINISTRATION BOARD

REASONS FOR JUDGMENT ESTCOURT J

28 April 2020

The appeal

In this proceeding I have for a decision "on the papers", (by consent of the parties, as a consequence of the restrictions arising from the 2020 Coronavirus pandemic), an appeal from a determination of the Guardianship and Administration Board of Tasmania (the Board). By that determination, made on 16 July 2019, pursuant to the Guardianship and Administration Act 1995 (the Act), it was ordered that the Public Trustee (Tas) (the Public Trustee), be appointed as administrator of the estate of [X] until 15 July 2022.
Section 76(1) of the Act provides a right of appeal to this Court from a determination of the Board. Section 76(2) provides that an appeal may be brought as of right "on a question of…

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: [2020] TASSC 11
Decision Date: 28 April 2020

CaseChat Overview and Summary

The appeal in X v Guardianship and Administration Board involved the appellants, who resided rent-free in the family home of the represented person, challenging a decision by the Guardianship and Administration Board. The represented person, unable to manage their own affairs due to incapacity, had appointed the first appellant as their attorney under an enduring power of attorney. However, the Board refused to approve the appointment due to a perceived conflict of interest, a decision that the appellants sought to overturn.

The central legal issues the court had to address were whether the grounds of the appeal presented a question of law and whether the Board's determination was unreasonable or clearly mistaken. The appellants argued that the Board's finding of a conflict of interest was erroneous, and that the Board had not properly considered their arguments. They also sought leave to appeal on other grounds if the primary grounds were found insufficient.

The court considered the extent to which the Board's decision was within the realm of reasonableness and whether it was clearly mistaken. It held that the Board's finding of a conflict of interest was indeed open to question. The court found that the Board had not adequately considered the nature of the relationship between the parties and the potential for the appellant to act in the represented person's best interests. Consequently, the appeal was allowed, and the decision of the Guardianship and Administration Board was quashed.

The court did not deem it necessary to grant leave to appeal on any other ground as the primary issue was resolved. The matter was remitted back to the Board for reconsideration in light of the court's findings. The final orders included quashing the Board's decision and remitting the matter for further consideration, providing the appellants with the opportunity to present their case anew.

Orders