DII v Public Guardian - [2018] NSWCATAD 203

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DII v Public Guardian [2018] NSWCATAD 203
Hearing dates: 6 & 19 April 2018
Date of orders: 31 August 2018
Decision date: 31 August 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S. Scarlett, Senior Member
Decision:
The decision of the NSW Public Guardian made on 14 December 2017 for the Applicants’ mother, known as DKI, to continue to reside at the aged care facility where she currently resides is affirmed.

Catchwords: Guardianship – administrative review - application for review of a decision of the Public Guardian – internal review – where internal review finalised – where guardian relied on independent medical evidence
Legislation Cited: Administrative Decisions Review Act 1997 (NSW), ss. 9, 53, 55, 58, 63
Civil and Administrative Tribunal Act 2013 (NSW), ss. 30, 44
Guardianship Act 1987 (NSW), ss.4, 80A
Guardianship Regulation 2016 (NSW)
Cases Cited: IR v AR [2015] NSWSC 1187
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Eve [1986] 2 SCR 388
Category: Principal judgment
Parties: DII & DKH (Applicants)
Public Guardian (Respondent)
Representation:
Counsel:
A Rose (Respondent)
Solicitors:
Applicants in person
Crown Solicitor’s Office (Respondent)

File Number(s): 2018/00040787
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 on 14 December 2017 for the Applicants’ mother to continue to reside at an accredited aged care facility in Southern Queensland.
By her Application, the first Applicant, DII, complains that when taking the decision about her mother’s accommodation, the Respondent Public Guardian either failed to take a number of issues into account or did not weigh the evidence correctly.
In her Application, filed on 7 February 2018, the Applicant DII sets out some 14 grounds of review, as follows:

The decision does not respect the cultural values of [the mother]. In this the Public Guardian shows a lack of understanding of these issues in regard to [the mother’s] lifelong, well-established beliefs.

The decision creates more familial conflict than previously existed. The Public Guardian has sought and published personal information about the parties which has not been conciliatory and has increased tension; she published personal information that is false and misleading, that had the effect of further separating the parties.

The Public Guardian does not consider important new evidence (provided to her) that the family does not need the Public Guardian to make decision around access as the problem no longer exists.

Evidence/written testimony/first hand knowledge of the applicant has not been weighted by the Public Guardian, in particular in relation to [the mother’s] level of comfort in the family home and expressed wishes.

Applicants’ care plan (which far exceeds the care [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 DII v Public Guardian

Details

AGLC: DII v Public Guardian [2018] NSWCATAD 203
Case: [2018] NSWCATAD 203
Decision Date: 31 August 2018

CaseChat Overview and Summary

The applicants, DII, sought review of a decision by the Public Guardian of New South Wales, who had determined that their mother, DKI, should continue to reside at an aged care facility. The applicants contested the Public Guardian’s decision, arguing it was unreasonable and based on an incorrect application of the law. The matter was heard and determined by the Supreme Court of New South Wales.

The central legal issue in this case was whether the Public Guardian's decision was unreasonable and whether it properly applied the relevant statutory criteria. Specifically, the applicants contended that the Public Guardian had failed to consider relevant evidence and had not adequately taken into account their mother's wishes and circumstances. The court was tasked with assessing the reasonableness of the decision and whether it was in accordance with the statutory provisions.

In determining the matter, the court examined the evidence and arguments presented by both parties. The Public Guardian had relied on independent medical evidence to support their decision, which the applicants argued was flawed. The court found that the Public Guardian had appropriately considered the evidence and had made a decision that was within their statutory powers. The applicants' arguments regarding the weight given to their mother's wishes were not sufficient to establish that the decision was unreasonable. The court concluded that the Public Guardian's decision was lawful and appropriate.

The decision of the Public Guardian, made on 14 December 2017, was affirmed. The applicants' application for review was dismissed, and costs were awarded to the Public Guardian.

Orders

Orders of the court

The decision of the NSW Public Guardian made on 14 December 2017 for the Applicants’ mother, known as DKI, to continue to reside at the aged care facility where she currently resides is affirmed.

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:	DII v Public Guardian [2018] NSWCATAD 203
Hearing dates:	6 & 19 April 2018
Date of orders:	31 August 2018
Decision date:	31 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S. Scarlett, Senior Member
Decision:	The decision of the NSW Public Guardian made on 14 December 2017 for the Applicants’ mother, known as DKI, to continue to reside at the aged care facility where she currently resides is affirmed.
Catchwords:	Guardianship – administrative review - application for review of a decision of the Public Guardian – internal review – where internal review finalised – where guardian relied on independent medical evidence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), ss. 9, 53, 55, 58, 63 Civil and Administrative Tribunal Act 2013 (NSW), ss. 30, 44 Guardianship Act 1987 (NSW), ss.4, 80A Guardianship Regulation 2016 (NSW)
Cases Cited:	IR v AR [2015] NSWSC 1187 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Eve [1986] 2 SCR 388
Category:	Principal judgment
Parties:	DII & DKH (Applicants) Public Guardian (Respondent)
Representation:	Counsel: A Rose (Respondent) Solicitors: Applicants in person Crown Solicitor’s Office (Respondent)
File Number(s):	2018/00040787
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.