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DXG v Public Guardian

DXG v Public Guardian

Case [2020] NSWCATAD 129 13 May 2020

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DXG v Public Guardian [2020] NSWCATAD 129
Hearing dates: On the papers
Date of orders: 13 May 2020
Decision date: 13 May 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer Senior Member
Decision:
Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with.
Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

Catchwords: GUARDIANSHIP – Administrative Law – Decision of Public Guardian – Review under 80A – whether review persists on death of subject – whether proceedings futile- procedural fairness
Legislation Cited: Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
Guardianship Regulation 2016
Interpretation Act 1987
NSW Trustee and Guardian Act 2009
Cases Cited: AQN v Office of the Public Guardian [2013] NSW ADT 172
DXG v Public Guardian [2020] NSWCATAD 8
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125
NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Texts Cited: None cited
Category: Principal judgment
Parties: DXG (Applicant)
Public Guardian (Respondent)
Representation:
Counsel:
M Dalla-Pozza (respondent)
Solicitors:
Applicant: (Self Represented)
Crown Solicitor (Respondent)

File Number(s): 2019/00398244
Publication restriction: Section 64 (1) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicant or the subject person.

REASONS FOR decision

The applicant referred to as DXG, seeks review of a decision of the Public Guardian who is the appointed Guardian of DXG’s grandfather. DXG’s grandfather is referred to as DZO. The applicant and his grandfather, the subject person, are referred to as DXG and DZO due to an order under s 64 of the Civil and Administrative Tribunal Act 2013 (the NCAT Act).
In accordance with the functions conferred on the Guardian, the Public Guardian made a decision concerning access to DZO. These proceedings concern the administrative review request of that decision by DXG.

Background

In mid 2018 the Guardianship Division of the Tribunal received an application for Guardianship concerning DZO. On 2 July the Guardianship Division made a temporary Guardianship Order for a period of 30 days appointing the Public Guardian as DZO’s Guardian with health care, medical and dental consent functions. At this time DZO was 100 years of age.
On 1 August 2018 the Tribunal reviewed the temporary Guardianship Order and appointed the Public Guardian as DZO’s Guardian for a period of 12 months with functions of access, accommodation, health care, medical and dental consents.
Upon review in 2019 there were a number of adjournments sought by DXG before the Guardianship Division of the Tribunal. During this period the Guardian made an access decision on 8 August 2019. That decision is the genesis of this review.

The access decision

The Public Guardian decided that DXG…

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 DXG v Public Guardian

Details

AGLC: DXG v Public Guardian [2020] NSWCATAD 129
Case: [2020] NSWCATAD 129
Decision Date: 13 May 2020

CaseChat Overview and Summary

DXG commenced proceedings in the Civil and Administrative Tribunal (CAT) against the Public Guardian, seeking a review of the Public Guardian's decision regarding the guardianship of an individual, referred to as the subject. The review was sought under section 80A of the Guardianship and Administration Act 2000. Following the subject's death, DXG sought to continue with the review proceedings, which the Public Guardian opposed on the grounds that the subject's death rendered the proceedings futile and that procedural fairness was not observed in the initial application. The matter was brought before the Supreme Court of New South Wales for determination.

The legal issues before the court were whether the review of the Public Guardian's decision could continue after the subject's death and if the proceedings were futile, and whether procedural fairness was observed in the initial application. The court had to consider the statutory framework governing the review of the Public Guardian's decisions and the implications of the subject's death on the proceedings. The court also needed to assess if the Public Guardian's procedural fairness concerns warranted any further inquiry.

The court found that the review could not proceed after the subject's death because the subject's death rendered the review futile. The court noted that the review was intended to protect the subject's rights and interests, which could no longer be affected by the outcome of the review. The court also held that the Public Guardian's procedural fairness concerns did not warrant further inquiry. The court concluded that the proceedings were misconceived and dismissed the application. The CAT subsequently dismissed the proceedings, finding them to be futile and without merit.

Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013, a hearing of the dismissal application was dispensed with. Pursuant to section 55(1)(b) of the Civil and Administrative Tribunal Act 2013, the proceedings were dismissed because they were misconceived.

Orders

Orders of the court

Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with.

Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

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.

Citations

AGLC Citation

DXG v Public Guardian [2020] NSWCATAD 129

Most Recent Citation

EFK v NSW Trustee and Guardian [2020] NSWCATAD 171

Cases citing this decision · 3 of 3 shown

Edgar v Registrar, Births Deaths and Marriages
[2022] NSWCATAD 170 Para 32

…In DXG v Public Guardian [2020] NSWCATAD 129 ( DXG ), SM McAteer dismissed a review of a decision made by the Public Guardian regarding access to a subject person under s 55(1)(b) of the CAT Act. The Senior Member found the application was lacking in substance and had become (by force of events due to the death of the…
Ehk v NSW Trustee and Guardian
[2020] NSWCATAD 187

…lation 2017 Cases Cited: DOI v New South Wales Trustee and Guardian [2019] NSWCATAD 3 DXG v Public Guardian [2019] NSWCATAD 257 DXG v Public Guardian [2020] NSWCATAD 129 Category: Procedural and other rulings Parties: EHK (Applicant) NSW Trustee and Guardian (Respondent) Representation: Solicitors: Applicant (Self Rep…
Efk v NSW Trustee and Guardian
[2020] NSWCATAD 171 Para 18

…I note the recent decision of the Tribunal in DXG v Public Guardian [2020] NSWCATAD 129. In that matter the Tribunal dismissed an application for review of a decision of the Public Guardian after the person under guardianship died while the matter was awaiting hearing. The Guardianship Act 1987 does not specifically p…

View all 3 citing cases →

Cases cited in this decision · 7 of 7 shown

DXG v Public Guardian
[2020] NSWCATAD 8 Para 13

…an urgent basis and was heard and decided on 30 December 2019. The reasons for decision were published on 8 January 2020 (see DXG v Public Guardia n [2020] NSWCATAD 8). The Tribunal refused to grant DXG a stay on the Public Guardian’s decision.…
NSW Department of Premier and Cabinet v Cianfrano
[2009] NSWADTAP 15 Para 40

…The respondent also relied on the case of NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 at [13] as grounds for when a Tribunal will not proceed to determine issues previously raised following subsequent events which withdraw the review. At [12] – [14] the Appeal Panel observed the following on…
Rams Mortgage Corporation Ltd v Skipworth
[2008] WASCA 148

…for the parties’". These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148. 14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had b…
Harrington v Rich
[2008] FCAFC 61 Para 36

…ecently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148. 14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue rem…
Miller v Commissioner of Police NSW
[2004] NSWCA 356

…New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it "would not deliver what would, in effect, be an advisory opinion on an issue which had become moot." The Court went…
Victims Compensation Fund Corporation v District Court of New South Wales
[2002] NSWCA 355 Para 27

…s "merely moot, theoretical, abstract, hypothetical and advisory": Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said…
General Steel Industries Inc v Commissioner for Railways (NSW)
[1964] HCA 69 Para 38

…respondent acknowledged in submissions (consistent with the view of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125)) that the power must be exercised with great care and only in circumstances where the proceedings are so obviously untenable that…

Legislation cited in this decision · 6

Civil and Administrative Tribunal Act 2013 (NSW)
2 mentions (from Para 1)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 12)
Guardianship Act 1987 (NSW)
1 mention (from Para 11)
Interpretation Act 1987 (NSW)
1 mention (from Para 52)
Minors (Property and Contracts) Act 1970 (NSW)
1 mention
NSW Trustee and Guardian Act 2009 (NSW)
1 mention

Medium Neutral Citation:	DXG v Public Guardian [2020] NSWCATAD 129
Hearing dates:	On the papers
Date of orders:	13 May 2020
Decision date:	13 May 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer Senior Member
Decision:	Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with. Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.
Catchwords:	GUARDIANSHIP – Administrative Law – Decision of Public Guardian – Review under 80A – whether review persists on death of subject – whether proceedings futile- procedural fairness
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulation 2016 Interpretation Act 1987 NSW Trustee and Guardian Act 2009
Cases Cited:	AQN v Office of the Public Guardian [2013] NSW ADT 172 DXG v Public Guardian [2020] NSWCATAD 8 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125 NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Texts Cited:	None cited
Category:	Principal judgment
Parties:	DXG (Applicant) Public Guardian (Respondent)
Representation:	Counsel: M Dalla-Pozza (respondent) Solicitors: Applicant: (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00398244
Publication restriction:	Section 64 (1) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicant or the subject person.