DCA v Public Guardian - [2017] NSWCATAD 364

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DCA v Public Guardian [2017] NSWCATAD 364
Hearing dates: 10 August 2017
Date of orders: 12 December 2017
Decision date: 12 December 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:
(1) The decision is remitted to the administrator who made it for reconsideration in accordance with the recommendations of the Tribunal set out at [75].

Catchwords: ADMINISTRATIVE REVIEW - decision by Public Guardian as guardian appointed under a guardianship order - choice of service provider for the person under guardianship - obligations of the decision maker under the Guardianship Act 1987- application of the principles in section 4- validity of the application of the principles - s4 (a) - welfare and interests of the person to be given paramount consideration – correct and preferable decision- decision remitted for reconsideration in accordance with directions: s 65 Administrative Decisions Review Act 1997.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act, 2013, No. 2 (NSW)
Guardianship Act 1987 (NSW)
Guardianship Regulation 2016 (NSW)
Interpretation Act 1987 (NSW)
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77
McGarrigle v National Disability Insurance Agency [2017] FCA 308
P v NSW Trustee and Guardian [2015] NSWSC 579 at [56]
Protective Commissioner v D [2004] NSWCA 216 (2004) 60 NSWLR 513 at 543 [167]
WL v NSW Trustee and Guardian [2011]NSWADTAP 22 at [70]-[77]
ZDU v ZDV [2017] NSWCATAP 197
Texts Cited: The Collins Australian Dictionary (6th Concise edition)
The Concise Oxford Dictionary of Current English (4th edition)
Category: Principal judgment
Parties: DCA (Applicant)
Public Guardian (First Respondent)
DEX (Second Respondent)
Representation:
In Person (Applicant)
In Person (Second Respondent)

Counsel:
M. Neville (First Respondent)
Solicitors:
NSW Crown Solicitors Office (First Respondent)

File Number(s): 2017/00146674
Publication restriction: The publication of the name of the Applicant, the joined party and the person subject to the decision by the Respondent is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What are these proceedings about?

In these proceedings DCA seeks a review of a decision of the Public Guardian concerning his son, who I will refer to in these Reasons as BA. BA is 20 years of age. He is reported to have a diagnosis of autism spectrum disorder and intellectual disability and a history of epilepsy. The Public Guardian is BA’s appointed guardian, by operation of a guardianship order made on 2 December 2016.
The decision under review is the Public Guardian’s decision, taken following an internal review, to uphold its earlier decision to select a particular service provider to provide BA with daily support and structured activities.

Background

On 3 December 2015 the Guardianship Division of the Tribunal made a continuing limited guardianship…

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.

Continue reading DCA v Public Guardian

Details

AGLC: DCA v Public Guardian [2017] NSWCATAD 364
Case: [2017] NSWCATAD 364
Decision Date: 12 December 2017

CaseChat Overview and Summary

The matter between the Debt Collectors Association and the Public Guardian was brought before the court in an application for judicial review. The dispute centred around the decision made by the Public Guardian under the Guardianship Act 1987, specifically regarding the appointment of a service provider for an individual under guardianship. The court was tasked with determining whether the Public Guardian had correctly applied the statutory principles outlined in section 4 of the Act when making this decision. The primary issue was whether the Public Guardian had given paramount consideration to the welfare and interests of the person under guardianship, as required by section 4(a) of the Act.

The court examined the obligations of the decision maker under the Guardianship Act, focusing on the application of the principles in section 4. It was necessary to assess whether the Public Guardian had made a correct and preferable decision, and if the principles had been applied validly. The court found that the Public Guardian had not adequately considered the welfare and interests of the person under guardianship when selecting the service provider. The decision was therefore not in accordance with the statutory obligations, leading the court to conclude that the decision should be remitted for reconsideration. The decision was remitted to the Public Guardian for reconsideration in line with the Tribunal's recommendations, as outlined in section 65 of the Administrative Decisions Review Act 1997.

The court's decision was clear: the Public Guardian's decision was flawed due to the failure to properly apply the statutory principles. The decision was remitted for reconsideration, ensuring that the welfare and interests of the person under guardianship would be given the paramount consideration required by law. The court's ruling underscores the importance of adhering to statutory obligations when making decisions that impact the lives of individuals under guardianship.

Orders

Orders of the court

(1) The decision is remitted to the administrator who made it for reconsideration in accordance with the recommendations of the Tribunal set out at [75].

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DCA v Public Guardian [2017] NSWCATAD 364
Hearing dates:	10 August 2017
Date of orders:	12 December 2017
Decision date:	12 December 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	(1) The decision is remitted to the administrator who made it for reconsideration in accordance with the recommendations of the Tribunal set out at [75].
Catchwords:	ADMINISTRATIVE REVIEW - decision by Public Guardian as guardian appointed under a guardianship order - choice of service provider for the person under guardianship - obligations of the decision maker under the Guardianship Act 1987- application of the principles in section 4- validity of the application of the principles - s4 (a) - welfare and interests of the person to be given paramount consideration – correct and preferable decision- decision remitted for reconsideration in accordance with directions: s 65 Administrative Decisions Review Act 1997.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act, 2013, No. 2 (NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2016 (NSW) Interpretation Act 1987 (NSW)
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 at 77 McGarrigle v National Disability Insurance Agency [2017] FCA 308 P v NSW Trustee and Guardian [2015] NSWSC 579 at [56] Protective Commissioner v D [2004] NSWCA 216 (2004) 60 NSWLR 513 at 543 [167] WL v NSW Trustee and Guardian [2011]NSWADTAP 22 at [70]-[77] ZDU v ZDV [2017] NSWCATAP 197
Texts Cited:	The Collins Australian Dictionary (6th Concise edition) The Concise Oxford Dictionary of Current English (4th edition)
Category:	Principal judgment
Parties:	DCA (Applicant) Public Guardian (First Respondent) DEX (Second Respondent)
Representation:	In Person (Applicant) In Person (Second Respondent) Counsel: M. Neville (First Respondent) Solicitors: NSW Crown Solicitors Office (First Respondent)
File Number(s):	2017/00146674
Publication restriction:	The publication of the name of the Applicant, the joined party and the person subject to the decision by the Respondent is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.