DYH v Public Guardian

Case [2021] NSWCATAD 136


Civil and Administrative Tribunal


New South Wales

Medium Neutral Citation: DYH v Public Guardian [2021] NSWCATAD 136
Hearing dates: 15 February 2021
Date of orders: 24 May 2021
Decision date: 24 May 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:

Matter No. 2020/00341901:

The decision by the Public Guardian is affirmed.

Matter No. 2021/00011720:

The decision by the Public Guardian is affirmed.

Catchwords:

ADMINISTRATIVE REVIEW- decisions by Public Guardian as guardian appointed under guardianship order, concerning person under guardianship’s place of accommodation and access to others. Obligations of the decision-maker under Guardianship Act 1987 (NSW)- s4 principles. Each decision complied with s4 and was and the correct and preferable decision.

Legislation Cited:

Administrative Decisions Review Act 1997(NSW); s63

Civil and Administrative Tribunal Act (No.2) 2013 (NSW); ss36, 63,65

Guardianship Act 1987(NSW); ss4, 80A

Guardianship Regulation 2016 (NSW )clause 17

Powers of Attorney Act 2003 (NSW),s36

Cases Cited:

BJF and Anor v Public Guardian [2014] NSWCATAD 141

Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60

McDonald v Guardianship and Administration Board [1993] VR 521

P v NSW Trustee and Guardian [2015] NSWSC 579

Protective Commissioner v D [2004] NSWCA 216; (2004) 60 NSWLR 513

WL v NSW Trustee and Guardian [2011] NSWADTAP 22

YG and GG v Minister for Community Services [2002] NSWCA 247

ZDU v ZDV [2017] NSWCATAP 197

Texts Cited:

The Concise Oxford Dictionary of Current English (6th edition)

Category:Principal judgment
Parties: DYH (First Applicant)
EIV (Second Applicant)
ENC (Third Applicant)
Public Guardian (Respondent)
Representation: First Applicant (For All Applicants)
Respondent (Self Represented)
File Number(s): 2020/0034190; 2021/00011720
Publication restriction: The publication of the name of any of the Applicants and of the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 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?

  1. This matter involves the Tribunal’s review of two decisions by the NSW Public Guardian, which were made in the Public Guardian’s capacity as the appointed guardian of PQX. The review of those decisions was sought by one of PQX’s daughters DYH, her grandson EIV and her estranged husband ENC. DYH represented the other two Applicants at the hearing.

PQX’s background, her family members and her established disabilities

  1. PQX is aged 81 years. She has been diagnosed with dementia in the form of Alzheimer’s disease. PQX migrated to Australia in 1967 and is of Greek culture and heritage. Her first language is Greek and I understand that she speaks little English.

  2. PQX is married to ENC, but they are estranged. ENC has resided mainly in Cyprus over the last 10 years, although, as I understand it, he has made occasional visits to Australia. PQX has two daughters, DYH and PYY and a son LYZ. PQX lives in a…

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AGLC
DYH v Public Guardian [2021] NSWCATAD 136
Case
[2021] NSWCATAD 136
Decision Date

CaseChat Overview and Summary

In the case of DYH v Public Guardian, the applicant sought judicial review of decisions made by the Public Guardian in relation to the placement and access arrangements of a person under guardianship. The applicant contested the Public Guardian’s decisions concerning the placement of the individual and their access to others. The case was heard and determined by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the decisions made by the Public Guardian, in accordance with the Guardianship Act 1987 (NSW), complied with the statutory principles outlined in section 4. Specifically, the court was tasked with determining if each decision made by the Public Guardian was both lawful and the correct and preferable decision in the circumstances. The applicant argued that the decisions did not adequately consider the individual's needs and preferences.

The court examined each decision made by the Public Guardian in detail and found that they were made in accordance with the statutory principles set out in section 4 of the Guardianship Act. The court concluded that the decisions were both lawful and the correct and preferable decisions given the individual's circumstances. As such, the court affirmed the decisions of the Public Guardian.

In summary, the Supreme Court upheld the decisions of the Public Guardian, affirming that they were made in compliance with the statutory requirements and were appropriate in the context of the individual's needs. The court's decision provides clarity for future cases concerning guardianship and the obligations of decision-makers under the Guardianship Act 1987 (NSW).

Orders

Orders of the court

Matter No. 2020/00341901:

The decision by the Public Guardian is affirmed.

Matter No. 2021/00011720:

The decision by the Public Guardian 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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