DNS - [2016] NSWCATGD 6

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DNS [2016] NSWCATGD 6
Hearing dates: 26 February 2016
Date of orders: 26 February 2016
Decision date: 26 February 2016
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
S Fogg, General Member (Community)
Decision:
Guardianship order renewed and varied. Public and Private Guardians appointed for 12 months with separate functions. Public Guardian given the authority to make decisions about accommodation; Private Guardian given the authority to make decisions about health care and consent to medical and dental treatment.
Application to be joined as a party refused.
Catchwords:
GUARDIANSHIP – end of term review of guardianship order – subject person absent from the hearing – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function sought – guardianship order renewed and varied – public and private guardians appointed with separate functions

INTERLOCUTORY – application to be joined as a party – consideration of applicable principles – section 44(1), Civil and Administrative Tribunal Act 2013 (NSW) – application dismissed
PROCEDURE – video evidence provided to the Tribunal – relevance of evidence – privacy and consent of subject person – consideration of section 36, Civil and Administrative Tribunal Act 2013 (NSW) – evidence not provided to parties
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36 and 44 (1)(a), 49 (2); cl 7 and 7(1) of sch 6
Guardianship Act 1987 (NSW), ss 3F, 4, 6K (3), 14(2), 17(1)
Powers of Attorney Act 2003 (NSW), ss 33 to 35, 35(3), 36(4)(f)
Cases Cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550
LA v Protective Commissioner [2004] NSWADTAP 39
Category: Principal judgment
Parties: Mrs DNS (person under guardianship)
Mrs KBS (an appointed guardian of Mrs DNS)
The Public Guardian (an appointed guardian of Mrs DNS)
Representation: Nil

File Number(s): 57583
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

REVIEW OF A GUARDIANSHIP ORDER

What the Tribunal decided

Guardianship

The Tribunal decided to renew and vary the guardianship order made for Mrs DNS on 5 February 2015. A further limited continuing order was made. The Public Guardian and Mrs KBS were appointed as guardians for Mrs DNS, with separate functions. The Public Guardian was authorised with the decision-making function of accommodation. Mrs KBS was authorised with the decision-making functions of health care and consent to medical and dental treatment.

Joinder application

The Tribunal decided not to grant the application by Mr SMC, a son of Mrs DNS, to be joined as a party to the proceedings.

Parties and witnesses

The Appendix to these Reasons for Decision identifies the parties to the review and the witnesses who participated in the hearing. [Appendix removed for publication.]

Background

Mrs DNS is an 84-year woman who is reported to have…

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 DNS

Details

AGLC: DNS [2016] NSWCATGD 6
Case: [2016] NSWCATGD 6
Decision Date: 26 February 2016

CaseChat Overview and Summary

In the matter of DNS, the court considered the renewal and variation of a guardianship order, the appointment of guardians, and an application to join as a party. The subject person was absent from the hearing, and the court was required to consider their welfare and interests in accordance with section 4 of the Guardianship Act 1987 (NSW). The court also needed to determine whether the access function should be sought and granted. Furthermore, the court had to assess the admissibility of video evidence presented to it, considering the privacy and consent of the subject person in line with section 36 of the Civil and Administrative Tribunal Act 2013 (NSW). Lastly, the court needed to decide on an application to join as a party, applying the relevant principles under section 44(1) of the same act.

The court found that the guardianship order should be renewed and varied, with separate functions assigned to the public and private guardians. The public guardian was granted the authority to make decisions about accommodation, while the private guardian was given the authority to make decisions about health care and consent to medical and dental treatment. In regards to the application to join as a party, the court dismissed the application, finding that it did not meet the applicable principles. The court also decided not to provide the video evidence to the parties, as it considered the privacy and consent of the subject person to be of paramount importance.

The court's decision resulted in the renewal and variation of the guardianship order, with the appointment of public and private guardians with separate functions. The application to join as a party was dismissed, and the video evidence was not provided to the parties due to privacy and consent concerns. The court's ruling ensured that the welfare and interests of the subject person were considered throughout the decision-making process, in accordance with the relevant legislation.

The final orders of the court were the renewal and variation of the guardianship order, with the appointment of public and private guardians for a period of 12 months. The public guardian was granted the authority to make decisions about accommodation, while the private guardian was given the authority to make decisions about health care and consent to medical and dental treatment. The application to join as a party was dismissed, and the video evidence was not provided to the parties due to privacy and consent concerns.

Orders

Orders of the court

Guardianship order renewed and varied. Public and Private Guardians appointed for 12 months with separate functions. Public Guardian given the authority to make decisions about accommodation; Private Guardian given the authority to make decisions about health care and consent to medical and dental treatment.

Application to be joined as a party refused.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	DNS [2016] NSWCATGD 6
Hearing dates:	26 February 2016
Date of orders:	26 February 2016
Decision date:	26 February 2016
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) S Fogg, General Member (Community)
Decision:	Guardianship order renewed and varied. Public and Private Guardians appointed for 12 months with separate functions. Public Guardian given the authority to make decisions about accommodation; Private Guardian given the authority to make decisions about health care and consent to medical and dental treatment. Application to be joined as a party refused.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – subject person absent from the hearing – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function sought – guardianship order renewed and varied – public and private guardians appointed with separate functions INTERLOCUTORY – application to be joined as a party – consideration of applicable principles – section 44(1), Civil and Administrative Tribunal Act 2013 (NSW) – application dismissed PROCEDURE – video evidence provided to the Tribunal – relevance of evidence – privacy and consent of subject person – consideration of section 36, Civil and Administrative Tribunal Act 2013 (NSW) – evidence not provided to parties
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36 and 44 (1)(a), 49 (2); cl 7 and 7(1) of sch 6 Guardianship Act 1987 (NSW), ss 3F, 4, 6K (3), 14(2), 17(1) Powers of Attorney Act 2003 (NSW), ss 33 to 35, 35(3), 36(4)(f)
Cases Cited:	Kioa v West [1985] HCA 81; (1985) 159 CLR 550 LA v Protective Commissioner [2004] NSWADTAP 39
Category:	Principal judgment
Parties:	Mrs DNS (person under guardianship) Mrs KBS (an appointed guardian of Mrs DNS) The Public Guardian (an appointed guardian of Mrs DNS)
Representation:	Nil
File Number(s):	57583
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify a person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).