Tasmanian Health Service v Public Trustee as Administrator of the estate of J

[2020] TASFC 6

Tasmania Full Court

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Interrogate

Catchwords

1. Administrative Law
2. › Administrative tribunals
3. › Statutory appeals from administrative authorities to courts
4. › Appeal on question of law
5. › Standard of review
6. › Whether findings of fact reasonably open on the evidence
7. › Whether primary judge impermissibly re-weighed evidence
8. › Guardianship and Administration Act 1995 (Tas), ss 20, 76
1. Mental Health
2. › Guardians, committees, administrators, managers and receivers
3. › Appointment
4. › Guardianship and Administration Board (Tas)
5. › Criteria for making guardianship order
6. › Disability
7. › Cognitive impairment
8. › Incapacity to make reasonable judgments
9. › Need for appointment of guardian
10. › Sliding scale of capacity
11. › Guardianship and Administration Act 1995 (Tas), ss 3, 6, 20
1. Appeal
2. › Standard of appellate review
3. › Appeal by way of rehearing
4. › Distinction between correctness standard and House v The King standard
5. › Whether statutory criterion demands unique outcome or tolerates range of outcomes

Quick Take

On an appeal on a question of law from the Guardianship and Administration Board under s 76(2) of the Guardianship and Administration Act 1995 (Tas), the appellate court's task is to determine whether the Board's findings were reasonably open on the evidence, not to re-weigh the evidence and substitute its own conclusions. The majority and dissent disagreed on whether the correctness standard or the 'reasonably open' standard applies to the Board's findings under s 20, with the majority applying the latter. Clinical opinions of cognitive impairment based on observations over time, even without formal neuropsychological testing, may be sufficient to support a finding of disability and incapacity under s 20(1)(a) and (b).