DGR v Public Guardian - [2018] NSWCATAD 267

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DGR v Public Guardian [2018] NSWCATAD 267
Hearing dates: 13 June 2018
Date of orders: 23 November 2018
Decision date: 23 November 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S, Scarlett, Senior Member
Decision:
The Tribunal affirms the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility.

Catchwords: Guardianship – administrative review – application for review of a decision of the Public Guardian – where Applicant seeks to remove her mother from an aged care facility
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), s. 63
Civil and Administrative Tribunal Act 2013 (NSW) s.64
Guardianship Act 1987 (NSW), ss. 4,14, 80A
Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336.
Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988
Cianfrano v Director General, Attorney General’s Dept [2008] NSWADTAP 10
Drake v Minister for Immigration and Ethnic Affairs (1970) 2 ALD 60
Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176
Nakad v Commissioner of Police NSW Police force [2014] NSWCATAP 10
Texts Cited: Nil
Category: Principal judgment
Parties: DGR (Applicant)
Public Guardian (First Respondent)
[CB] (Second Respondent)
Representation:
Counsel:
Mr Bhalla (First Respondent)
Solicitors:
Mr Levitt (Applicant)
Crown Solicitor’s Office (First Respondent)

File Number(s): 2017/00369249
Publication restriction: With the exception of expert witnesses or officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

This is an Application for review of a decision made by the Respondent Public Guardian on 29 November 2017 under the provisions of the Guardianship Act 1987 (NSW). The decision is that the Applicant’s mother (N) was to continue living at the H [1] aged care facility. The mother has not been allocated a pseudonym, but to protect her privacy she will be referred to by the initial N.
1. The particular aged care facility will be referred to as the H aged care facility for reasons of privacy
The decision under review was that:

Having considered the general principles of the Guardianship Act, weighing the evidence and taking into account the views of [N], the Public Guardian considers that it is in [N]’s welfare and interests to remain living at [H aged care facility].

The Applicant contends that the accommodation decision was made in error in that none of the witnesses who provided statements or affidavits in the proceedings or in their reports had taken into account the matters which the Australian Aged Care Quality Agency had considered in deciding to revoke the accreditation of H aged care facility on 3 April 2018.
In her Application for Administrative Review filed on 6 December 2017, the Applicant states:

“It is not in my Mum’s best welfare or interests to be left…

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.

Keep reading for free

Create a free CaseChat account to read DGR v Public Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] NSWCATAD 267
Decision Date: 23 November 2018

CaseChat Overview and Summary

The case of DGR v Public Guardian involves an application for review of a decision made by the Public Guardian. The applicant, DGR, seeks to remove her mother, N, from an aged care facility, H. The dispute revolves around the appropriate living arrangements for N, given her age and health condition. The matter was heard by the Tribunal, which was tasked with determining whether the Public Guardian's decision was lawful and appropriate.

The central legal issue before the Tribunal was whether the Public Guardian's decision to keep N at the aged care facility was justified. This involved assessing the Public Guardian's decision-making process, the evidence considered, and the outcome in light of N's best interests. The Tribunal needed to determine whether the decision was made in accordance with relevant legislative provisions and whether it was reasonable and appropriate in the circumstances.

In reaching its decision, the Tribunal examined the evidence and submissions presented by both parties. It considered the nature of the aged care facility, the care and support provided to N, and the potential risks associated with removing her from the facility. The Tribunal found that the Public Guardian's decision was supported by the evidence and was in the best interests of N. The Tribunal was satisfied that the decision was made in accordance with the relevant legislative framework and that it was reasonable and appropriate in the circumstances. Consequently, the Tribunal affirmed the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility.

Orders

Orders of the court

The Tribunal affirms the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility.

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:	DGR v Public Guardian [2018] NSWCATAD 267
Hearing dates:	13 June 2018
Date of orders:	23 November 2018
Decision date:	23 November 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S, Scarlett, Senior Member
Decision:	The Tribunal affirms the decision of the Public Guardian made on 29 November 2017 that N should remain living at H aged care facility.
Catchwords:	Guardianship – administrative review – application for review of a decision of the Public Guardian – where Applicant seeks to remove her mother from an aged care facility
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s. 63 Civil and Administrative Tribunal Act 2013 (NSW) s.64 Guardianship Act 1987 (NSW), ss. 4,14, 80A
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336. Bronze Wing Ammunition Pty Ltd v SafeWork NSW (No 2) [2016] NSWSC 988 Cianfrano v Director General, Attorney General’s Dept [2008] NSWADTAP 10 Drake v Minister for Immigration and Ethnic Affairs (1970) 2 ALD 60 Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176 Nakad v Commissioner of Police NSW Police force [2014] NSWCATAP 10
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DGR (Applicant) Public Guardian (First Respondent) [CB] (Second Respondent)
Representation:	Counsel: Mr Bhalla (First Respondent) Solicitors: Mr Levitt (Applicant) Crown Solicitor’s Office (First Respondent)
File Number(s):	2017/00369249
Publication restriction:	With the exception of expert witnesses or officers of government agencies, the publication or broadcast of the name of any person mentioned in these proceedings or referred to in the documentary material lodged in these proceedings is prohibited. This order is made under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.