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Queensland Judgments
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  • Unreported Judgment

KBB v NSB No. 2

 

[2019] QCATA 173

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

KBB v NSB & Ors No. 2 [2019] QCATA 173

PARTIES:

KBB

(applicant/appellant)

 

v

 

NSB

 

KGT

 

SBB

 

QKB

 

HKB

(respondent)

APPLICATION NO/S:

APL080-18

ORIGINATING

APPLICATION NO/S:

GAA3322-17; GAA1653-17

MATTER TYPE:

Appeals

DELIVERED ON:

17 December 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Guthrie

Member Browne

ORDERS:

  1. The Tribunal’s decision of 13 March 2018 about the validity of the enduring power of attorney dated 22 November 2016 is set aside.
  2. The application for an order about an enduring power of attorney is remitted to the Tribunal for reconsideration according to law and these reasons.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – WHAT IS – GENERALLY – where further written submissions requested from parties addressing form of orders to be made regarding the validity of the enduring power of attorney of the adult – where applicant submitted that the Appeal Tribunal should set aside decision and substitute its own pursuant to s 146 (b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where respondents submitted that the applications should be dismissed pursuant to section 47 or section 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) – where the Appeal Tribunal found that the appropriate order was to set aside the Tribunal’s decision and to remit the application for reconsideration 

Guardianship and Administration Act 2000 (Qld)

Powers of Attorney Act 1998 (Qld), s 41, s 113 (1)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 47, s 48, s 146 (b)

Ericson v Ericson v Queensland Building Services Authority [2013] QCA 39

Fox v Percy (2003) 214 CLR 118

Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83

LK v BL & Ors [2017] QCATA 146

REPRESENTATION:

 

Applicant:

McCarthy Durie Lawyers

Respondents:

Rae, A of legal Counsel.

APPEARANCES:

 

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

  1. [1]
    On 18 July 2019, we allowed grounds one and two of an appeal from a decision of the Tribunal exercising powers under the Guardianship and Administration Act 2000 (Qld), concerning NSB. Relevantly, the Tribunal’s impugned decision made on 7 March 2016 declared valid, pursuant to s 113(1) of the Powers of Attorney Act 1998 (Qld) (‘POA Act’), the enduring power of attorney dated 22 November 2016 for NSB. Before the Appeal Tribunal determined the appeal and published its reasons, NSB passed away.
  2. [2]
    We invited the applicant to address us further in relation to the form of orders to be made under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) in the disposition of the appeal.[1] More importantly, we invited the applicant to address us on the issue of whether it is convenient for the Appeal Tribunal to, rather than remit the matter for rehearing, substitute its own decision that the application for an order about an enduring power of attorney is dismissed under s 47 of the QCAT Act.
  3. [3]
    The applicant provided further written submissions in compliance with the Appeal Tribunal directions made on 18 July 2019.[2] Submissions have also been received from QKB, HKB and SBB.[3]
  4. [4]
    The applicant says that the Appeal Tribunal having allowed the appeal, should proceed under s 146(b) of the QCAT Act to set aside the Tribunal’s decision and substitute its own decision about the validity of the 2016 enduring power of attorney concerning NSB. The appellant submits, amongst other things, that it would be preferable for the invalidity issue to be decided without another hearing and the Appeal Tribunal already has the evidence.
  5. [5]
    In support of the proposed orders sought in the disposition of the appeal, the applicant says that the proceeding to determine validity does have utility and submits as follows:
    1. (a)
      A declaration of invalidity will establish that NSB’s enduring power of attorney was void and of no effect from its inception;
    2. (b)
      Without a declaration (of invalidity), decisions made and transactions entered into by the donees of the 2016 enduring power of attorney will have been made under a presumptively valid instrument;
    3. (c)
      Merely setting aside the Tribunal’s determination of validity (of the enduring power of attorney) is not sufficient to declare its invalidity, leaving any actually invalid decisions and transactions beyond impeachment or recall;
    4. (d)
      The donees of the 2016 enduring power of attorney have not proposed that there now be a consent declaration of the invalidity of that power. Apparently, they maintain that their enduring power is valid; and
    5. (e)
      The invalidity needs to be established, by declaration to address practical concerns.
  6. [6]
    Although QKB, HKB and SBB made no submissions in the appeal at first instance, they now seek to be heard in relation to final orders in the disposition of the appeal.
  7. [7]
    In summary, QKB, HKB and SBB seek to be heard if the matter is remitted back to the Tribunal for reconsideration on the basis that they were in the initial hearings. Further, QKB, HKB and SBB say that the Appeal Tribunal, having allowed the appeal on grounds one and two, should order that the application for an order about an enduring power of attorney be dismissed under either s 47 or s 48 of the QCAT Act. They say that there is no utility in making a fresh determination as to NSB’s capacity to make the 2016 enduring power of attorney and the Appeal Tribunal cannot declare for or against the validity of the 2016 enduring power of attorney without carrying out a proper determination and hearing from the parties.
  8. [8]
    We are not persuaded that it is appropriate in the disposition of this matter to proceed under s 146(b) of the QCAT Act to dismiss the application for an order about an enduring power of attorney. Here, we found that there is an error of law concerning the Tribunal’s application of s 41 of the POA Act and s 28 of the QCAT Act. More importantly, we found that the Tribunal did not properly consider the evidence of family members that was cogent and unchallenged evidence relevant to NSB’s capacity and understandings as to the matters prescribed under s 41(2) of the POA Act. Put simply, the Tribunal did not fulfil its duty to consider and reflect upon the entirety of the evidence viewed as a whole.[4]
  9. [9]
    Section 146 of the QCAT Act only permits the Appeal Tribunal to proceed with the appeal on questions of law to set aside the decision and substitute its own decision if the determination of the question of law is capable of resolving the matter as a whole in the appellant’s favour and without the re-hearing of the matter whether on the evidence below or on fresh evidence.[5] Here, there is evidence that remains untested because the Tribunal below did not properly consider all of the evidence as a whole at first instance. The Tribunal, as the trier of fact and in exercising its powers under the POA Act and the Guardianship and Administration Act 2000 (Qld), is the proper entity to consider the evidence and issues relevant to the application at first instance, that is, the application for an order about an enduring power of attorney.  The fact that NSB has, since determining the grounds of appeal, passed away is not a reason alone for the Appeal Tribunal to dismiss the application for an order about an enduring power of attorney under s 47 of the QCAT Act on the basis that the continuation of the application would be an abuse of process, as submitted by QKB, HKB and SBB.  Indeed, as observed by the Appeal Tribunal in LK v BL & Ors,[6] there is no provision in either the POA Act or the Guardianship and Administration Act 2000 (Qld) that prevents the making of a declaration as to the validity of the enduring power of attorney, including whether the principal at the time of signing had capacity to make the document, after the principal has died. Further, QKB, HKB and SBB who participated in the hearing at first instance have indicated that they wish to be heard further in relation to any hearing concerning the application for an order about an enduring power of attorney. Here, it is appropriate, in proceeding under s 146(c) of the QCAT Act, to set aside the Tribunal’s decision and remit the matter back to the Tribunal for reconsideration. It is of course appropriate in this matter for the Tribunal to be a properly reconstituted Tribunal.   We order accordingly.

Footnotes

[1]Directions dated 18 July 2019.

[2]Submissions filed 25 July 2019.

[3]Submissions filed 10 September 2019.

[4]Guirguis Pty Ltd v Michel’s Patisserie System Pty Ltd [2017] QCA 83, [48] and see Fox v Percy   (2003) 214 CLR 118,  [23] (Gleeson CJ, Gummow J and Kirby J).

[5] Ericson v Ericson v Queensland Building Services Authority [2013] QCA 39, [25].

[6][2017] QCATA 146, [27].

Close

Editorial Notes

  • Published Case Name:

    KBB v NSB & Ors No. 2

  • Shortened Case Name:

    KBB v NSB No. 2

  • MNC:

    [2019] QCATA 173

  • Court:

    QCATA

  • Judge(s):

    Guthrie, Browne

  • Date:

    17 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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