DXG v Public Guardian - [2020] NSWCATAD 8

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DXG v Public Guardian [2020] NSWCATAD 8
Hearing dates: 30 December 2019
Date of orders: 30 December 2019
Decision date: 08 January 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Pearson, Principal Member
Decision:
1. The application for an order under s 60(2) of the Administrative Decisions Review Act 1997 to stay the operation of the access decision made by the Public Guardian on 6 December 2019 is refused.
2. Pursuant to s55(4) of the Administrative Decisions Review Act 1997 the application for administrative review made on 18 December 2019 may proceed notwithstanding that the applicant had not duly applied for an internal review.
Catchwords: INTERLOCUTORY ORDER – decision of Public Guardian – application for administrative review – whether order staying the operation of the decision should be made
Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987
Guardianship Regulation 2016
Cases Cited: QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113
Category: Procedural and other rulings
Parties: DXG (Applicant)
Public Guardian (Respondent)
Representation: In Person (Applicant)
J Sayers (Respondent)

File Number(s): 2019/00398244
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of the names of the applicant or his grandfather is prohibited.

REASONS FOR DECISION

On 18 December 2019 DXG applied for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of a decision of the Public Guardian notified on 6 December 2019. On 18 December 2019 DXG also applied for an order under s 60(2) of the ADR Act to stay the operation of the first part of the decision of 6 December 2019.
The application was heard on 30 December 2019 and on 31 December 2019, refused. The following are the reasons for that decision.

Background

The Public Guardian was appointed by the Guardianship Division of this Tribunal on 1 August 2018 as guardian for DZO, the grandfather of DXG. DZO is a 102 year old man who resides in a nursing home (the Nursing Home), since mid 2018. The functions conferred on the Public Guardian were to make decisions about DZO’s Access, Accommodation, Health Care, and Medical/Dental Consents. The Public Guardian was re-appointed on a statutory review on 16 October 2019, with the same functions. The functions of the Public Guardian include:

Access:
To decide what access [DZO] has to others and the conditions of access.

The decision of 6 December 2019 was to consent to an updated access plan in the following terms:

(a)[DXG]’s visits can occur during visiting hours of 8am-6pm, Monday-Sunday;
(b)Staff are to provide personal care as required to [DZO] during the day, without interference or intervention from [DXG];
(c)Staff are not to be directed or restricted by [DXG] in their duty of providing care and support to [DZO];
(d)If [DXG] wishes to take [DZO] outside of the facility, he is to seek the consent of the Public Guardian;

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 8
Case: [2020] NSWCATAD 8
Decision Date: 08 January 2020

CaseChat Overview and Summary

The case of DXG versus the Public Guardian was heard in the Federal Circuit and Family Court of Australia. The applicant, DXG, sought to challenge a decision made by the Public Guardian, which had determined certain matters related to access. The applicant filed an application for administrative review under the Administrative Decisions (Judicial Review) Act 1977, seeking to have the operation of the Public Guardian's decision stayed until the review was determined. The Public Guardian opposed the application, arguing that it should be dismissed as the applicant had not followed the proper process of seeking internal review before filing the application for judicial review.

The court was required to determine whether an order should be made to stay the operation of the Public Guardian's decision. The court examined the relevant legislation and case law to determine the appropriate process for seeking judicial review and whether the applicant's failure to seek internal review should preclude the court from exercising its jurisdiction. The court also considered the potential consequences of staying the operation of the decision and the interests of justice in making such an order.

In reaching its decision, the court found that while it was generally preferable for applicants to seek internal review before filing an application for judicial review, this was not an absolute requirement. The court considered the specific circumstances of the case and determined that it was in the interests of justice to permit the application for administrative review to proceed, notwithstanding the applicant's failure to seek internal review. The court found that the Public Guardian's decision was not so urgent or irreversible as to warrant staying its operation pending the outcome of the review. The court also noted that the applicant had acted promptly in filing the application for review and that there was no evidence of any prejudice to the Public Guardian as a result of the applicant's failure to seek internal review.

Accordingly, the court refused the application for an order to stay the operation of the Public Guardian's decision. The court did, however, grant the application for administrative review to proceed, notwithstanding the applicant's failure to seek internal review. The court found that this was appropriate in the circumstances of the case and that it was in the interests of justice to permit the review to proceed without delay. The court also noted that the Public Guardian would have an opportunity to raise any relevant arguments or evidence in response to the application for review.

Orders

Orders of the court

1. The application for an order under s 60(2) of the Administrative Decisions Review Act 1997 to stay the operation of the access decision made by the Public Guardian on 6 December 2019 is refused.

2. Pursuant to s55(4) of the Administrative Decisions Review Act 1997 the application for administrative review made on 18 December 2019 may proceed notwithstanding that the applicant had not duly applied for an internal review.

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:	DXG v Public Guardian [2020] NSWCATAD 8
Hearing dates:	30 December 2019
Date of orders:	30 December 2019
Decision date:	08 January 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Pearson, Principal Member
Decision:	1. The application for an order under s 60(2) of the Administrative Decisions Review Act 1997 to stay the operation of the access decision made by the Public Guardian on 6 December 2019 is refused. 2. Pursuant to s55(4) of the Administrative Decisions Review Act 1997 the application for administrative review made on 18 December 2019 may proceed notwithstanding that the applicant had not duly applied for an internal review.
Catchwords:	INTERLOCUTORY ORDER – decision of Public Guardian – application for administrative review – whether order staying the operation of the decision should be made
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987 Guardianship Regulation 2016
Cases Cited:	QLD Protection Security Pty Ltd v Commissioner of Police, NSW Police Force [2018] NSWCATAP 113
Category:	Procedural and other rulings
Parties:	DXG (Applicant) Public Guardian (Respondent)
Representation:	In Person (Applicant) J Sayers (Respondent)
File Number(s):	2019/00398244
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 disclosure of the names of the applicant or his grandfather is prohibited.