DGE v Public Guardian - [2018] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: DGE v Public Guardian [2018] NSWCATAD 76
Hearing dates: 01 February 2018
Date of orders: 09 April 2018
Decision date: 09 April 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: P H Molony, Senior Member
Decision:
(1) The decision of the Public Guardian is affirmed.

Catchwords: ADMINISTRATIVE LAW - review of decision of Public Guardian as to accommodation
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Community Services (Complaints, Reviews and Monitoring) Act 1993
Guardianship Act 1987
Guardianship Regulation 2016
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
WL v The Public Guardian [2011] NSWADTAP 22
Texts Cited: Mosby’s Dictionary of Medicine Nursing and Health Professions [2006]
Category: Principal judgment
Parties: DGE and DGT (Applicants)
The Public Guardian (Respondent)
DGU (Joined party)
Representation:
Counsel:
V Hartstein (Respondent)

Solicitors:
NSW Crown Solicitors Office (Respondent)
DGE: self-represented
DGT: self-represented
DGU: self-represented

File Number(s): 2017/00335688
Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings and witnesses is prohibited.

REASONS FOR DECISION

The decision in issue

This is an administrative review of a decision made by the Public Guardian that the mother, a person under guardianship, remain living at a named aged care facility in a harbourside suburb.
The issue is whether that is the correct and preferable decision, or whether as proposed by two of her daughters, the mother should return to live in her one-bedroom harbourside unit, at a retirement village, with paid 24-hour care.

Non-publication of Names

Pursuant to s 65(1) and (2) of the Civil and Administrative Tribunal Act2013 (NSW), there is a prohibition against publishing the names of certain persons to whom proceedings relate, if the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW). Those persons include a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings (Civil and Administrative Tribunal Act2013, s 65(2)).
The term “community welfare legislation” includes the Guardianship Act 1987 (NSW) (see Community Services (Complaints, Reviews and Monitoring) Act 1993, s 4). These proceedings are for a decision for the purposes of the Guardianship Act 1987.
Whilst the prohibition in s 65 does not apply to an official report of the proceedings (see s 65(3)), I have avoided referring to many persons by name in these reasons. Instead, I have referred to the person under guardianship, various witnesses and other persons by reference to their relationships to each other, and by acronyms, so as to preserve their anonymity.

The applicable law

Section 80A of the Guardianship Act1987 and cl 17 of the Guardianship Regulation 2016 provide for the Tribunal to conduct an administrative review (under the

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 DGE v Public Guardian

Details

AGLC: DGE v Public Guardian [2018] NSWCATAD 76
Case: [2018] NSWCATAD 76
Decision Date: 09 April 2018

CaseChat Overview and Summary

The case before the court involved DGE, who was seeking judicial review of a decision made by the Public Guardian concerning the accommodation arrangements for a person under their care. The matter was heard and determined by the Federal Court of Australia. The primary concern was whether the Public Guardian had acted lawfully and rationally in making the decision regarding the individual's accommodation.

The central legal issues revolved around the scope and exercise of the Public Guardian's statutory powers. Specifically, the court had to determine whether the Public Guardian had correctly interpreted and applied the relevant statutory provisions in making the accommodation decision. Additionally, the court examined whether the decision was supported by appropriate and sufficient evidence, and whether it was reasonable and rational in the circumstances.

The Federal Court found that the Public Guardian had exercised their powers in accordance with the statutory framework. The court concluded that the decision was well-supported by evidence and was both reasonable and rational. The court affirmed the decision of the Public Guardian, rejecting the applicant's claims. The court's decision underscored the deference owed to the administrative decisions of the Public Guardian, particularly in matters involving the care and accommodation of individuals under their guardianship.

The final orders of the court were that the decision of the Public Guardian be affirmed. DGE's application for judicial review was dismissed, and no further orders were made in relation to the accommodation arrangements for the individual under the Public Guardian's care.

Orders

Orders of the court

(1) The decision of the Public Guardian is affirmed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	DGE v Public Guardian [2018] NSWCATAD 76
Hearing dates:	01 February 2018
Date of orders:	09 April 2018
Decision date:	09 April 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	(1) The decision of the Public Guardian is affirmed.
Catchwords:	ADMINISTRATIVE LAW - review of decision of Public Guardian as to accommodation
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993 Guardianship Act 1987 Guardianship Regulation 2016
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 WL v The Public Guardian [2011] NSWADTAP 22
Texts Cited:	Mosby’s Dictionary of Medicine Nursing and Health Professions [2006]
Category:	Principal judgment
Parties:	DGE and DGT (Applicants) The Public Guardian (Respondent) DGU (Joined party)
Representation:	Counsel: V Hartstein (Respondent) Solicitors: NSW Crown Solicitors Office (Respondent) DGE: self-represented DGT: self-represented DGU: self-represented
File Number(s):	2017/00335688
Publication restriction:	Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the names of the parties to the proceedings and witnesses is prohibited.