DXG v Public Guardian - [2019] NSWCATAD 257

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DXG v Public Guardian [2019] NSWCATAD 257
Hearing dates: 10 October 2019
Date of orders: 11 December 2019
Decision date: 11 December 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:
(1) The application is dismissed under s55(1) (b) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).
(2) The Respondent is to pay the Applicant’s costs of and incidental to the hearing on 9 September 2019.

Catchwords:
ADMINISTRATIVE REVIEW- Decision by Public Guardian as guardian under guardianship order- application by Public Guardian for dismissal- application misconceived and lacking in substance; want of prosecution. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b) and (d). Dismissal order.
CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch -No reasonable cause of action disclosed
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013, No.2 (NSW)
Civil and Administrative Tribunal Rules 2014
Guardianship Act 1987 (NSW)
Cases Cited: Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139
Kabourakis v Medical Practitioners’ Board of Victoria [2006] VSCA 301; 25 VAR 449
Long v Metromix Pty Ltd [2019] NSWCATAP 198
Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
State of New South Wales v Plaintiff A [2012] NSW CA 248
Young v Holloway [1895] P. 87
Texts Cited: Bullen & Leake & Jacob’s Precedents of Pleadings
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): 2019/00193264
Publication restriction: The publication of the name of the Applicant and the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act No.2 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

REASONS FOR DECISION

What is this matter about?

The Applicant in these proceedings, whom I shall refer to as DXG, has a grandfather, whom I shall refer to as MZG, who is aged 101 years. MZG lived with DXG, who was his primary carer, prior to MZG having a severe stroke on or about 12 May 2018. As a result of his stroke MZG was admitted to Prince of Wales Hospital and subsequently to the Montefiore Nursing Home at Randwick.
On 2 July 2018, on the application of a Neurology Registrar at Prince of Wales Hospital, the Guardianship Division of the Tribunal made a short-term guardianship order for MZG, under which the Public Guardian was appointed as his guardian. That order was reviewed by the Tribunal at a hearing…

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.

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Details

Case: [2019] NSWCATAD 257
Decision Date: 11 December 2019

CaseChat Overview and Summary

DXG sought judicial review of a decision by the Public Guardian, acting as guardian under a guardianship order. The Public Guardian subsequently applied for the proceedings to be dismissed, arguing that the application was misconceived and lacked substance. The matter was heard by the Civil and Administrative Tribunal (CAT) in New South Wales, which had jurisdiction under the Civil and Administrative Tribunal Act, 2013 (NSW).

The legal issues before the tribunal included whether the application was misconceived or lacked substance and if the proceedings had been unduly delayed. The tribunal considered whether the Public Guardian's application for dismissal was justified under section 55(1)(b) and (d) of the Act, which allows for dismissal where proceedings are misconceived, lacking in substance, or there has been a want of due despatch. The tribunal examined whether DXG had disclosed a reasonable cause of action.

The tribunal determined that the application was misconceived and lacking in substance, as it did not provide sufficient grounds for judicial review. The tribunal found that the Public Guardian's application for dismissal was well-founded and that the proceedings had been unduly delayed, warranting dismissal under section 55(1)(b) and (d) of the Act. The tribunal concluded that no reasonable cause of action had been disclosed by DXG.

The tribunal ordered that the application be dismissed and that the Public Guardian pay DXG's costs of and incidental to the hearing. This decision underscored the importance of ensuring that applications for judicial review are both well-founded and timely, to avoid unnecessary expenditure of judicial resources.

Orders

Orders of the court

(1) The application is dismissed under s55(1) (b) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

(2) The Respondent is to pay the Applicant’s costs of and incidental to the hearing on 9 September 2019.

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:	DXG v Public Guardian [2019] NSWCATAD 257
Hearing dates:	10 October 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	(1) The application is dismissed under s55(1) (b) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW). (2) The Respondent is to pay the Applicant’s costs of and incidental to the hearing on 9 September 2019.
Catchwords:	ADMINISTRATIVE REVIEW- Decision by Public Guardian as guardian under guardianship order- application by Public Guardian for dismissal- application misconceived and lacking in substance; want of prosecution. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b) and (d). Dismissal order. CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch -No reasonable cause of action disclosed
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013, No.2 (NSW) Civil and Administrative Tribunal Rules 2014 Guardianship Act 1987 (NSW)
Cases Cited:	Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 Kabourakis v Medical Practitioners’ Board of Victoria [2006] VSCA 301; 25 VAR 449 Long v Metromix Pty Ltd [2019] NSWCATAP 198 Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 State of New South Wales v Plaintiff A [2012] NSW CA 248 Young v Holloway [1895] P. 87
Texts Cited:	Bullen & Leake & Jacob’s Precedents of Pleadings
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):	2019/00193264
Publication restriction:	The publication of the name of the Applicant and the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act No.2 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.