DS [2026] QCATA 108

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DS [2026] QCATA 108 PARTIES: In an application about matters concerning DS APPLICATION NO/S: APL513-25 ORIGINATING APPLICATION NO/S: GAA13425-25; GAA13426-25 MATTER TYPE: Appeals DELIVERED ON: 30 June 2026 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Senior Member Browne ORDERS: The appeal is allowed. The decision made on 27 November 2025 relating to the appointment of the Public Guardian as guardian for DS for decisions about accommodation and provision of services including in relation to the National Disability Insurance Scheme (GAA13426- 25), is set aside. The application for the appointment of a guardian (GAA13426-25) is remitted to the Tribunal for rehearing by a differently constituted Tribunal. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF MIXED FACT AND LAW – GENERALLY – where the applicants applied for appointment as guardian – where the tribunal found there was a need for decisions to be made – where the tribunal appointed the public guardian – whether the tribunal properly applied the appropriateness considerations under s 15 of the Guardianship and Administration Act 2000 (Qld) – where s 14(2) of the Guardianship and Administration Act 2000 (Qld) applies – whether the applicants are appropriate persons for appointment as guardian – where the tribunal made findings about the public guardian’s suitability – where the applicants raise alleged errors of law in the tribunal’s decision to appoint the public guardian – whether leave to appeal is necessary – whether there is an error in the tribunal’s decision to appoint the public guardian – whether the matter should be set aside and remitted back to the tribunal for rehearing -- 1 of 8 -- 2 Guardianship and Administration Act 2000 (Qld), s 9, s 11B, s 12, s 14, s 15, s 81, s 107, s 111, s 112, s 113, s 129 Human Rights Act 2019 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 146 Adult Guardian v Hunt [2003] QSC 297 Ericson v Queensland Building and Construction Commission [2014] QCA 297 House v King (1936) 55 CLR 499 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 PLC v Adult Guardian [2013] QCATA 11 NJ [2022] QCAT 283 APPEARANCES & REPRESENTATION: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Applicants: MS and KS Respondent: No appearance. REASONS FOR DECISION [1] DS is a 28-year-old man who relies on his family and support workers to assist him with all of his personal care tasks inside the home and when accessing the community. [2] DS has Autism Spectrum Disorder and an intellectual disability. He is unable to verbally communicate his views and wishes. He can understand simply verbal requests only. [3] DS enjoys listening to music, watching television shows and going for walks. Crowded environments or unexpected changes to routine can impact upon DS’s sensory needs resulting in DS feeling overwhelmed and engaging in challenging behaviours. For example, when travelling inside a car to access the community DS may attempt to get out of the car or throw objects. DS therefore requires direct supervision from his support workers due to his limited safety awareness. [4] DS has a sister who also requires support in her activities of daily living due to an intellectual disability. [5] DS’s parents applied to the Tribunal proposing that they (MS and KS) be appointed jointly and severally as a guardian and administrator for DS. At that time DS and his sister were both participants of the National Disability Insurance Scheme (NDIS) and were living in their family home with MS and KS (the applicants). [6] At an oral hearing, the Tribunal exercised the powers under the Guardianship and Administration Act 2000 (Qld) (GA Act) to appoint the Public Guardian as a guardian to make decisions about DS’s accommodation and provision of services including in -- 2 of 8 -- 3 relation to the NDIS.1 The Tribunal also appointed MS and KS jointly and severally as administrator for DS to make decisions about all of his financial matters. As reflected in the Tribunal’s order, the appointment of a guardian is to be reviewed in two years and the appointment of an administrator is to be reviewed five years. [7] MS and KS apply for leave to appeal or appeal the Tribunal’s decision to appoint the Public Guardian as a guardian for DS.2 The applicants submit that they were each an appropriate person for appointment as a guardian for their son and that they had already been appointed as guardians and administrators following a decision made by the Tribunal under an interim order that required an exercise of the power under s 129 of the GA Act. Further, the applicants submit that their appointment in the role of guardian for DS should have been maintained by the Tribunal in the same way as their role as administrators was by the Tribunal.3 [8] The applicants seek orders from this Appeal Tribunal to set aside the Tribunal’s decision to appoint the Public Guardian and substitute a decision to appoint MS and KS jointly and severally as guardian for DS and that the appointment of a guardian be extended to, as stated, ‘match the period of the administration appointment’.4 The applicants also seek a written record from this Appeal Tribunal reflecting the nature and circumstances of the Tribunal’s refusal or removal of the applicants from appointment as a guardian in Queensland arising from the original decision or confirmation that if the original decision is set-aside, then a refusal or removal from a guardianship position would not then be considered to have occurred.5 [9] The Appeal Tribunal directed that the application for leave to appeal or appeal be heard and determined on the papers.6 The Public Guardian did not file any submissions and have indicated that they do not take a view as to the merits or otherwise of the application for leave to appeal or appeal. Further, the Public Guardian does not wish to take an active role in the appeal proceeding.7 Grounds of appeal [10] The applicants identify four alleged errors in the Tribunal’s decision to appoint the Public Guardian, now set out below8- (a) Manner the hearing was conducted and the appointment of the Public Guardian as DS’s guardian as a ‘choice’ of options. (b) Failure to apply s 14(2) of the GA Act. (c) Failure to appropriately examine the applicant’s credentials for guardianship appointment in their capacity as DS’s NDIS plan nominee or as his pre-hearing interim guardians. 1 Tribunal decision dated 27 November 2025. 2 Application for leave to appeal or appeal filed on 4 December 2025. 3 Appeal submissions filed on 5 March 2026, Appeal Book, p 85. 4 Appeal submissions filed on 5 March 2026, Appeal Book, p 85. 5 Appeal submissions filed 5 March 2026, Appeal Book, p 85. 6 Appeal Tribunal Directions dated 12 May 2026. On the papers hearing listed on 2 June 2026. 7 Correspondence from the Public Guardian dated 21 April 2026. The Public Trustee of Queensland does not intend to take an active part in the proceedings as stated in their correspondence dated 15 January 2026. 8 Appeal submissions filed on 5 March 2026, Appeal Book, p 85 -- 3 of 8 -- 4 (d) Failing to sufficiently account for how the appointment of the Public Guardian as guardian could adversely impact DS, his sister and his family supports going forward. [11] The applicants do not challenge the Tribunal’s findings about DS’s capacity to make decisions about his personal matters and the need for the appointment of a guardian (under s 12 of the GA Act), only the decision to appoint the Public Guardian as DS’s guardian. [12] The application for the appointment of a guardian and administrator was determined by the Tribunal following an oral hearing and oral reasons given at the conclusion of the hearing. [13] In the hearing below, the Tribunal was exercising the discretionary power under s 12 of the GA Act to appoint a guardian and administrator for DS. The Tribunal was required to consider the considerations under s 12 (capacity and need) relevant sections of the GA Act including s 9(2)(a) in terms of whether informal decision- making is appropriate for DS. Further, the general principles (s 11B) apply in terms of whether the power to appoint a guardian should be exercised (s 12), who is appropriate for appointment (s 14 and s 15), DS’s views, wishes and preferences (s 81(2)) and the views of any member of DS’s support network (s 81(2)). Importantly, s 15 of the GA Act provides appropriateness considerations for a proposed appointee including and amongst other things, whether the person who is proposed for appointment as a guardian or administrator can apply the general principles (s 11B), the extent to which the adult’s and person’s interests are likely to conflict and whether the person would be available and accessible. Section 14 of the GA Act makes clear that the public guardian may be appointed only if there is no other appropriate person available for appointment. [14] It is well settled that an appellate tribunal will not interfere in the exercise of a tribunal’s discretion unless it can be shown the tribunal acted upon a wrong principle or made mistakes of fact which affected the decision; or allowed extraneous or irrelevant matters to guide them.9 [15] A decision-maker’s failure to take into account factors they were bound to consider by statute is an error of law.10 [16] In my view, leave to appeal is not necessary in this matter because the contentions raised in the appeal identify questions of law about the Tribunal’s failure to consider relevant sections of the GA Act in the exercise of the discretion to appoint the Public Guardian as guardian for DS.11 Error in the Tribunal’s discretion to appoint the Public Guardian [17] The Tribunal’s oral reasons can be found in the transcript of the hearing. The Tribunal considers the application by MS and KS and observes that DS lives at home with his parents, DS requires accommodation referred to as supported independent living (SIL) on a permanent basis with support from carers.12 The Tribunal says there has been 9 House v King (1936) 55 CLR 499. 10 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24. 11 See Minister for Aboriginal Affairs v Peko-Wallsend Ltd. See also s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). 12 Transcript, p 1-2. -- 4 of 8 -- 5 attempts to try and find separate accommodation living previously but it has been, as stated, ‘difficult’ due to DS’s behaviours. The Tribunal observes that an application has been made to the NDIS in relation to the SIL accommodation but that was rejected. The Tribunal says that it is proposed that a further application should be made to the NDIS and it has been suggested that DS and his sister live together in the same SIL.13 [18] The Tribunal observes that there are current applications before the Tribunal for DS’s sister, there is a high degree of complexity in the negotiations to be undertaken with the NDIS and in the decision-making as to the accommodation. The Tribunal finds that those discussions are likely to require a high level of understanding of the way the processes of both the NDIS and service providers who provide such accommodation are conducted. The Tribunal finds that there is a need for decisions to be made in relation to accommodation and services including the NDIS. For health care decisions, with whom DS has contact or such other personal decisions, the Tribunal finds that those decisions have been made on an informal basis by DS’s parents (MS and KS) and they are, as stated, ‘quite agreeable to [continue] in that role’ meaning to continue making decisions for DS on an informal basis.14 [19] In considering who should be appointed as a guardian the Tribunal says that the question is who are the most appropriate (for appointment) and refers to the applicants as one option and the public guardian as the other option. The Tribunal observes that DS’s parents are, as stated, ‘reluctant to have someone else involved in decision- making for their son’.15 [20] The Tribunal refers to ‘concerns’ and, as stated, ‘the complexity of these applications’ in the context of personal decisions to be made for DS. The Tribunal refers to a report provided by a service provider (Ms D) who had a lot to do with the family and says the parents have displayed symptoms of carer burnout and that there is, as stated, ‘a lot of exhaustion and frustration’ and that services have not been able to be obtained to place DS and his sister in the ‘best situation’.16 The Tribunal accepts the submission made by the service provider (Ms D) that the public guardian is an alternative in terms of an appointed guardian for DS and goes on to find that a short-term appointment of the public guardian would be, as stated, ‘useful for the family’ and that the family have not had time to just be parents. Further and amongst other things, the Tribunal goes on to observe and acknowledge the parents’ reluctance to have some one else making decisions. The Tribunal finds that there are great benefits in having the public guardian appointed on a short-term basis to navigate the family and support workers, to navigate through the ‘quite complex process that will be needed’.17 [21] Although the Tribunal ultimately finds that the most appropriate appointment in relation to guardianship for decisions about accommodation and services including the NDIS is the public guardian, the transcript shows that the Tribunal did not address the appropriateness considerations under s 15 and consider s 14(2) of the GA Act to arrive at that finding. Relevantly, s 14(2) provides that 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. 13 Transcript, p 1-3. 14 Ibid. 15 Ibid. 16 Ibid. 17 Transcript, p 1-4. -- 5 of 8 -- 6 [22] In the hearing below, the Tribunal finds that the Public Guardian is well placed to make decisions, and they are familiar with the processes involved. The Tribunal accepts the views of the service providers (Ms D and another service provider) that there may be benefits for the public guardian to be able to assist DS and the public guardian would work with the parents.18 The Tribunal goes on to find that the appointment of the public guardian is to be of a short duration and finds that it will take some substantial time for a suitable SIL and funding to be arranged. The Tribunal ultimately finds that it is most appropriate to appoint the Public Guardian for a period of two years. [23] It is clear from the evidence and, as found by the Tribunal below, DS’s parents had been acting as an informal decision-maker for their son, DS; and would continue in that role for all remaining personal decisions for DS such as, contact and health care decisions. At the time of the hearing below, DS’s parents were seeking their appointment as guardian and administrator and had been acting in the role of a guardian and administrator prior to the hearing, having been appointed under an interim order (under s 129 of the GA Act). [24] The Tribunal’s reasons refer to the views of service providers who attended the hearing and their evidence about the applicants having carer stress. Despite accepting that MS and KS (the applicants) were acting as informal decision-makers for DS and had been acting in the role of guardian under an interim order, the Tribunal accepts the submissions made in the hearing by the service providers about the applicants’ carer stress as a basis for finding the public guardian is appropriate. [25] It is clear from the applicants’ application for the appointment of a guardian and administrator that was before the Tribunal that they themselves indicated that they have as stated, ‘high levels of carer burnout’.19 The applicants set out the reasons for filing the application in the Tribunal and state in their application that, to date, all decision-making on DS’s behalf has been performed by them as his parents and amongst other things, they (DS’s parents) are his NDIS nominee and DS’s father is the appointed correspondence nominee for Centrelink. Further, in addressing the grounds of appeal, the applicants’ state that ‘the reference to carer burnout is a frank and honest admission’.20 It is clear from the transcript that the Tribunal considers the issue of carer burnout as a relevant consideration in determining who is appropriate for appointment as guardian. In my view, carer stress is not a reason alone to find the public guardian is more appropriate for appointment as guardian. [26] The evidence before the Tribunal in the hearing below contained in the applicants’ application for appointment as guardian and their guardian’s report is, in my view, relevant and compelling evidence of their appropriateness for appointment as their son’s guardian. [27] At the time of the hearing, the applicants had been providing informal supports for DS and as found by the Tribunal in the hearing below, ‘have their son’s interests at heart’. Further, the only application for appointment was the applicants’ application seeking their appointment as guardian and administrator for their son, DS. The applicants filed a written account of their actions as guardians for DS since their 18 Transcript, p 1-4. 19 Appeal Book, p 35. 20 Appeal Book, p 90. -- 6 of 8 -- 7 appointment under the interim order on 2 October 2025.21 The actions taken by the applicants include searching for suitable and available property for DS for SIL purposes, consulting with DS’s general practitioner, attending meetings with the support coordinator and amongst other things, engaging with service providers and holding stakeholder meetings.22 [28] The applicants’ contention that if indeed the Tribunal was entitled to consider the public guardian for appointment, then the appropriateness considerations (s 15) should have been considered by the Tribunal, is established. The Tribunal, in my view, did not give a proper consideration to whether the applicants are appropriate persons available for appointment. The Tribunal did not consider the appropriateness considerations under s 15 of the GA Act and apply s 14(2) in finding that the public guardian is more appropriate. Further, the Tribunal did not consider the general principles (s 11B) and whether the parents are likely to apply them, whether DS and his parents are compatible including, for example, whether the applicants have appropriate communication skills, or appropriate cultural or social knowledge or experience, to be compatible with DS; and whether they are available and accessible. [29] In addressing the grounds of appeal, the applicants submit that the Tribunal had no regard to the applicants’ expressed opinions that they wished to have no public guardian involvement in the decision-making for DS and submit that at one stage during the hearing the applicants were sent out of the room by the member to discuss what he had raised as a possible benefit of the public guardian’s engagement. The applicants submit that when they were called back into the hearing the member had held conversations with the positive behaviour support practitioner for DS and the support coordinator before giving reasons for his decision. I pause here to observe that it is not clear from the transcript as to whether the Tribunal made a closure order in respect of exercising the power under s 107 of the GA Act to close the hearing or part of the hearing to exclude the applicants. I observe that if the Tribunal did exercise the power under s 107 of the GA Act to exclude the applicants from a part of the hearing, the applicants were entitled to be heard in relation to the making of the order (s 111), to be given a copy of the decision (s 112) and written reasons for the decision (s 113). [30] In my view, having read the transcript, the application and supporting documents filed by the applicants and service providers in the Tribunal that were before the member in the hearing below, the Tribunal has not properly exercised the discretion under s 12 of the GA Act to appoint the Public Guardian. Further, the Tribunal has failed to consider s 14(2) of the GA Act that provides the Tribunal may appoint the Public Guardian as guardian only if there is no other appropriate person available for appointment. [31] Section 14(2) of the GA Act requires the Tribunal to apply s 15 before it determines that the proposed appointee is not an appropriate person for appointment.23 The applicants have, in my view, demonstrated an error in the Tribunal’s failure to apply relevant sections of the GA Act by appointing the Public Guardian in circumstances where there was appropriate family members available who had been acting as DS’s informal decision-makers, who understand DS’s needs and were well placed to apply 21 Appeal Book, p 71. See also the guardian’s report to the Tribunal, p 58. 22 Ibid. 23 PLC v Adult Guardian [2013] QCATA 11 [30]. -- 7 of 8 -- 8 the general principles and amongst other things, were willing and available to be appointed as guardians for DS. [32] In my view, it is implicit in the GA Act that the Tribunal may only appoint the Public Guardian as the guardian of last resort in circumstances where there is no other appropriate person for appointment having considered relevant sections of the GA Act including s 9, s 11B and s 15. Section 9 of the GA Act authorises the exercise of power for a matter for an adult with impaired capacity for the matter and recognises that, depending on the type of matter involved, this may be done by a range of substitute decision-makers on an informal basis by members of the adult’s existing support network. It is always preferable to appoint a family member or other suitable person who has a close personal relationship with the adult as their guardian. Further, it is preferable that friends or family who are able and willing to provide the requisite support and assistance be allowed to do so rather than be ‘supplanted’ by an independent decision-maker such as the Public Guardian.24 [33] There is an error of law established in the exercise of discretion to appoint the Public Guardian as guardian for DS. In accordance with established law, unless the error decides the matter in its entirety, the decision must be set aside and sent back to the Tribunal for reconsideration.25 [34] In proceeding under s 146 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), it is necessary to set aside the Tribunal’s decision to appoint the Public Guardian and remit the matter back to a differently constituted Tribunal for rehearing. This is because there is insufficient evidence for this Appeal Tribunal to make findings about the applicants’ appropriateness given that there were concerns or issues raised in the hearing below about the applicants’ suitability that the Tribunal accepted in deciding that the Public Guardian is appropriate. [35] The applicants should be given an opportunity to respond to any issues or concerns about their appropriateness and suitability for appointment as DS’s guardian in the rehearing of their application for the appointment of a guardian. Further, although not raised by the applicants in addressing the grounds of appeal, it is clear from the transcript that the Tribunal did not consider the Human Rights Act 2019 (Qld) in exercising the power to appoint a guardian under the GA Act. Importantly, whether DS’s rights have been limited or engaged by the exercise of the Tribunal’s power under s 12 of the GA Act to appoint the Public Guardian as guardian for DS.26 The Tribunal constituted for the rehearing of the matter will consider the Human Rights Act 2019 (Qld) in exercising the power to appoint a guardian under the GA Act. [36] The appeal is allowed. The Tribunal’s decision made on 27 November 2025 relating to the appointment of the Public Guardian as guardian for DS for decisions about accommodation and provision of services including in relation to the NDIS (GAA13426-25), is set aside. [37] The application for the appointment of a guardian (GAA13426-25) is remitted to the Tribunal for rehearing by a differently constituted Tribunal. I order accordingly. 24 Adult Guardian v Hunt [2003] QSC 297 [30]. 25 Ericson v Queensland Building and Construction Commission [2014] QCA 297 [3], [10], [13], [16]. 26 See NJ [2022] QCAT 283. -- 8 of 8 --