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- Unreported Judgment
LSS v LN QCATA 133
LSS v LN, LG & Public Guardian  QCATA 133
12 November 2015
Senior Member Stilgoe OAM
11 February 2016
APPEAL – GUARDIANSHIP – CAPACITY – where finding adult lacked capacity – where application to challenge earlier marriage and EPOA withdrawn – where application to expand guardian’s appointment – where tribunal added accommodation and contact – whether evidence supported decision – whether grounds for leave to appeal
APPEAL – GUARDIANSHIP – STANDING – meaning of eligible person – where appellant not the adult – where appellant not the applicant in the proceeding below – where appellant not a person whose power was changed or removed – whether appellant should have standing
Guardianship and Administration Act 2000 (Qld) ss 12, 163(3)
Pickering v McArthur  QCA 294
Ms Treston of Queen’s Counsel instructed by Robbins Watson Solicitors
LN and LG represented by Ms D E Pendergast of Counsel instructed by CRH Law
Public Guardian represented by Ms K Phillips, Senior Legal Officer of the Office of the Public Guardian
REASONS FOR DECISION
- The adult married LSS in December 2012. On 27 September 2013, the tribunal appointed the Public Guardian as guardian for the adult for decisions about contact, health and legal matters not relating to finance and property and whether he should hold a driver’s licence.
- There appears to have been a history of conflict between LSS and the adult’s daughters, LG and LN. On 1 August 2014, the Tribunal made an order pursuant to s. 106 of the Guardianship and Administration Act 2000 (Qld) (GAAT Act) that relevant information be obtained from the adult in the absence of anyone else. The Tribunal directed that arrangements be made for the adult to spend time with his daughters and his extended family.
- The tribunal adjourned the application to a date to be fixed.
- On 30 October 2014, the Tribunal changed the order made on 27 September 2013 by continuing the appointment of the Public Guardian as guardian for the adult and expanding the Public Guardian’s responsibility to include decisions about accommodation and provision of services.
- LSS has filed an application for leave to appeal/appeal both the August and October decisions.
- On 19 October 2015, the Tribunal directed that there be a preliminary hearing to determine three issues: whether the applications were filed out of time, whether LSS’s had standing to appeal the decisions, and whether it was necessary for the tribunal to grant leave to Appeal.
Filing out of time
- At the hearing, all parties conceded there was no serious dispute about whether the applications were filed out of time. To the extent necessary, therefore, we find that the applications for leave to appeal or appeal were filed within time.
- Only an eligible person may appeal a decision of the tribunal. LSS is not an eligible person as of right, because she was not the applicant in the proceeding below, not a person proposed for appointment and not a person whose power was being changed or removed.
- A person given leave to appeal may also be an eligible person. Ms Treston, on behalf of LSS therefore proposed that it would be appropriate to deal with the issue of leave to appeal before dealing with the question of standing. She submitted if the appeals tribunal was satisfied that leave to appeal should be granted then the issue of standing would follow as a matter of course.
- We agree. We therefore propose to consider firstly whether leave to appeal should be granted.
Leave to appeal
- Leave to appeal will usually be granted where there is a reasonable argument that the decision is attended by error, and an appeal is necessary to correct a substantial injustice to the applicant caused by that error.
- Ms Treston submits that the Tribunal made a clear error of law that justifies leave to appeal. She submits the learned Member identified a factual matrix from the evidence but incorrectly applied the law to the facts, which led him into a “pervasive error”.
- Ms Treston identifies pervasive error in the learned member’s finding at  of his reasons that LSS took advantage of the adult’s declining capacity. She notes the learned member then found this had resulted in a marriage to LSS that the adult, when he had capacity, said should not occur. Ms Treston submits that the learned member fell into the error of assuming the adult did not have capacity at the time of the marriage and/or was subject to LSS’s undue influence at that time of the marriage.
- The marriage occurred on 22 December 2012. The Tribunal first made an order concerning the adult’s lack of capacity on 27 September 2013. There was no retrospective finding that the adult did not have capacity prior to 27 September 2013. Further, at that hearing, the Adult Guardian (as the Public Guardian then was) withdrew applications about the validity of the marriage and of an enduring power of attorney. Consequently, there was a presumption the adult had capacity at the date of the marriage. Ms Treston says that the learned member failed to give effect to that presumption, which then led him into error.
- Ms Pendergast, for the adult’s daughters LN and LG, conceded that an original application for a declaration of capacity was withdrawn and the tribunal did not determine the issue of whether the adult had capacity to marry. She acknowledged there was nothing to indicate that the marriage occurred at a time when the adult lacked capacity. Further, she conceded there was no evidence about retrospective loss of capacity and the parties did not seek a declaration about those issues.
- However, she submitted that the evidence demonstrated the learned member correctly determined that LSS had taken advantage of the adult's declining capacity. She submitted that the learned member considered the evidence of all witnesses whose evidence was critical to the findings, reviewed that evidence and identified a man who was “vulnerable and socially isolated”. She pointed out that the adult’s lack of capacity was brought about by his dementia, something that occurs over time.
- Ms Pendergast submits that the finding at [70(a)] of the learned member’s reasons is not a finding that the adult lacked capacity when he married LSS, but one of six factors that, in the learned member’s view, supported a finding that LSS took advantage of the adult. She submits the pattern of evidence supports the learned member’s findings.
- Ms Pendergast points out that the learned member found LSS an unsatisfactory witness. She submits that witnesses in support of LSS were not available for cross-examination. She submits that the learned member obviously made an assessment about the evidence, which he was entitled to do, and the assessment is open on the evidence.
- The learned member had to make a decision about whether to extend the Public Guardian’s power to include accommodation and contact. He could only do that if he was satisfied that there was a need for a decision about these matters and that, without an appointment, the adult’s needs would not be adequately met or his interests would not be protected.
- The adult lives with LSS. He was living with her in 2013, when the tribunal found that an appointment about accommodation was not necessary. The learned member heard that the Adult Guardian had conducted welfare checks on the adult. He heard that the Adult Guardian did not think an appointment for accommodation was necessary.
- Ms Solomona, from the Adult Guardian, only conceded that an appointment might be necessary when asked “if … were not married”. But LSS and the adult were married; the hypothetical question put to Ms Solomona was misleading and had no evidential value.
- Tellingly, the evidence that LSS took advantage of the adult’s declining mental state predates his marriage. The learned member refers to the adult’s decision to make LSS his attorney. The learned member referred to the financial adviser’s evidence, all of which pre-dated the marriage. He accepted a proposition that past abuse indicates present or future abuse, but the evidence of abuse pre-dated the marriage.
- Conversely, as the learned member acknowledged, there was no current evidence of abuse. Ms Pendergast may argue that this is because LSS keeps the adult isolated from his family but that submission does not sit with contemporaneous evidence. The tribunal had a series of letters from friends, all written in July 2014, which refer to friendships with the adult, fortnightly bike rides with him and LSS, fitness training, visits to cafes and visits to the adult and LSS at home.
- Ms Pendergast says that the learned member was right to discount this evidence because the parties were not available for cross-examination. There are two problems with this submission. Firstly, the learned member decided he did not want these witnesses cross-examined. Secondly, the learned member does not address this evidence at all in his reasons for decision.
- We agree that a tribunal does not need to canvass all of the evidence in depth, and may not be required to consider evidence in the same way as, say, the Supreme Court, and that the tribunal is not required to give reasons that are as detailed as a court might give. But we cannot understand why, in a set of reasons that covers eighty-six paragraphs, the learned member did not refer at all to the contemporaneous evidence of the adult’s current lifestyle. We do not agree with Ms Pendergast’s submissions that the learned member obviously made an assessment about this evidence. Rather, we have concluded that the learned member failed to consider this evidence adequately, or at all.
- The learned member’s decision does not address the criteria for the appointment of a guardian. Given the unusual situation – that the adult was married and living with his wife, there was a previous decision that his accommodation was settled, that there was no evidence of risk to the adult or that his needs would not be adequately met, the learned member was in error. Leave to appeal should be granted.
- There are additional reasons for the grant of leave to appeal. The learned member’s reasons for decision indicate the learned member made an appointment about accommodation to facilitate contact by, and with, his daughters. That decision came from a proposal by the Adult Guardian. Contact arrangements cannot be a proper ground for a wide-ranging and non-specific appointment of a guardian for accommodation.
- The original appointment of a guardian was for a period of two years. Without a request from either party, the learned member extended the appointment to five years from the date of the order. The learned member does not explain why the appointment was extended.
- Because we have found that LSS should be granted leave to appeal, it follows that she has standing.
- Leave to appeal is granted. It may be that these reasons for decision make a hearing of the appeal unnecessary. The appeal will be listed for directions on 7 days’ notice in writing by one party to the tribunal and to the other party.
GAAT Act s 163(1).
GAAT Act, s 163(3)(a)(viii).
 Pickering v McArthur  QCA 294 at .
GAAT Act s 12(1)(b).
GAAT Act s 12(1)(c).
Transcript page 1-51, lines 44 – 47.
Transcript page 1-52, lines 3 – 4.
Transcript page 1-52, lines 45 – 46.
Transcript page 1-52, lines 1 – 8.
Transcript page 1-56, lines 39 – 40.
At  to .
Transcript page 2-114, lines 38 – 39.
Transcript page 2-73, lines 15 and following.
- Published Case Name:
LSS v LN, LG & Public Guardian
- Shortened Case Name:
LSS v LN
 QCATA 133
Senior Member Stilgoe OAM, Member Quinlivan
11 Feb 2016