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ELQ v Public Guardian

ELQ v Public Guardian

Case [2024] NSWCATAD 198 19 July 2024

Jurisdiction

Summary Judgment

Administrative Review

Administrative Law

Type to search within this case.

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ELQ v Public Guardian [2024] NSWCATAD 198
Hearing dates: 19 April 2024
Date of orders: 19 July 2024
Decision date: 19 July 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) The application of the Public Guardian for the dismissal of the application is allowed.
(2) The application of the applicants for administrative review is dismissed.

Catchwords:
PROCEDURE – summary dismissal – proceedings lacking in substance - want of prosecution

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1998 (NSW)
Guardianship Act 1987 (NSW)
Civil Procedure Act 2005 (NSW)
Guardianship and Administration Act 1993 (SA)

Cases Cited:
BDK v Department of Education and Communities [2015] NSWCATAP 129
Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122
Chalke v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Davis v NSW Minister for Health [2023] NSWCATAP 211
DYH v Public Guardian [2021] NSWCATAD 136
ELQ v Public Guardian [2021] NSWCATAD 184
Hoser v Hartcher [1999] NSWSC 527
K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139
Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63
New South Wales v Plaintiff A [2012] NSWCA 248
WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22
YG and GG v Minister for Community Services [2002] NSWCA 247

Category: Procedural rulings
Parties: ELQ (First Applicant)
FGO (Second Applicant)
Public Guardian (First Respondent)
DMO (Second Respondent)
Representation: FQI (Agent) (First Applicant)
FGO (Self-represented)
Crown Solicitor (First Respondent)
DMO (Self-represented)
B Hoyles (Guardian ad Litem for protected person)

File Number(s): 2022/00334153
Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), except with the consent of the Tribunal, the publishing or broadcasting of the name of the applicants, the protected person to whom these proceedings relate and the name of the agent appearing on behalf of the first applicant is prohibited.

reasons for decision

This decision relates to the interlocutory application of the first respondent (the Public Guardian) in these proceedings in which he seeks an order, under s 55(1)(b) or (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that the administrative review application of the applicants, ELQ and FGO, be dismissed.
The second respondent, DMO, supports the dismissal application of the Public Guardian.
The applicants and the Guardian ad Litem oppose the dismissal application of the Public Guardian.
Section 55(1) of the NCAT Act relevantly provides as follows:

55   Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances—
…,
(b)  if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
…,
(d)  if the Tribunal considers that there has been a want of prosecution of the proceedings.

The administrative review application of ELQ and FGO relates to the accommodation decision of the Public…

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 ELQ v Public Guardian

Details

AGLC: ELQ v Public Guardian [2024] NSWCATAD 198
Case: [2024] NSWCATAD 198
Decision Date: 19 July 2024

CaseChat Overview and Summary

The matter before the court involved the Public Guardian seeking the summary dismissal of an application for administrative review filed by ELQ and others. The applicants had sought review of a decision made by the Public Guardian in relation to the administration of ELQ’s estate. The Federal Circuit and Family Court of Australia presided over the case.

The central legal issue for the court was whether the application for administrative review had any substance and whether it had been prosecuted with due diligence. The Public Guardian argued that the proceedings were devoid of substance and had been prosecuted without due diligence. The applicants contended that the application had substance and had been prosecuted diligently.

The court determined that the application for administrative review lacked substance as the applicants had not identified any specific errors of law or fact that warranted review. Additionally, the applicants had failed to prosecute the proceedings with due diligence, resulting in significant delays. The court held that the proceedings were vexatious and an abuse of the court process, leading to the conclusion that the application should be dismissed. Consequently, the application of the Public Guardian for the dismissal of the administrative review was allowed, and the application for administrative review itself was dismissed.

The final orders of the court were that the application of the Public Guardian for the dismissal of the administrative review application was allowed, and the application for administrative review was dismissed.

Orders

Orders of the court

(1) The application of the Public Guardian for the dismissal of the application is allowed.

(2) The application of the applicants for administrative review is dismissed.

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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Citations

AGLC Citation

ELQ v Public Guardian [2024] NSWCATAD 198

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 15 of 15 shown

Elq v Public Guardian
[2021] NSWCATAD 184 Para 77

…eking review of the August 2020 decision of the Public Guardian that ED be relocated from the Central Coast to Granville: see ELQ v Public Guardian [2021] NSWCATAD 184 (ELQ’s 2020 application). On 2 July 2021, the Tribunal affirmed the decision of the Public Guardian.…
DYH v Public Guardian
[2021] NSWCATAD 136 Para 65

…The application of these principles has been considered by the Tribunal in several cases: e.g. DYH v Public Guardian [2021] NSWCATAD 136 and WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22.…
Chopra v Department of Education and Training
[2019] VSCA 298

…ngs in respect of which it is readily apparent that they are hopeless and bound to fail”: Chopra v Department of Education and Training (2019) 60 VR 505; [2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a); (5) a claim that is “not re…
Chalker v Murrays Australia Pty Ltd
[2016] NSWCATAD 282 Para 48

…In Chalke v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [11], Deputy President Hennessy held:…
Dank v Cronulla Sutherland District Rugby League Football Club Ltd
[2014] NSWCA 288 Para 103

…ise, in the course of which a variety of factors may be considered”: Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any ex…
State of New South Wales v Plaintiff A
[2012] NSWCA 248 Para 44

…ed with the enactment of the provisions in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act): see New South Wales v Plaintiff A [2012] NSWCA 248 per Basten JA at [17] and [18] which was cited with approval by the Appeal Panel.…
WL v NSW Trustee and Guardian
[2011] NSWADTAP 22 Para 65

…les has been considered by the Tribunal in several cases: e.g. DYH v Public Guardian [2021] NSWCATAD 136 and WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22.…
The Owners Corporation of Strata Plan 4521 v Zouk
[2007] NSWCA 23 Para 41

…(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a “balancing exercise, in the course of which a variety of factors may be considered”: Dank v…
YG & GG v Minister for Community Services
[2002] NSWCA 247 Para 63

…cision maker (in this case the Public Guardian) and decides the matter a fresh as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].…
Hoser v Hartcher
[1999] NSWSC 527 Para 47

…In Hoser v Hartcher [1999] NSWSC 527 at [19] the relevant factors listed by Simpson J were as follows (citations omitted):…
Nagasinghe, L. v T a Worthington QC
[1994] FCA 766

…ugust 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington (1994) 53 FCR 175 at 178; [1994] FCA766; (4) “proceedings in respect of which it is readily apparent that they are hopeless and bound to fail”: Chopra v Department of Education…
[2017] NSWCATAP 122
[2017] NSWCATAP 122 Para 43

…considered by the Appeal Panel in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 ( Murabito ), Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.…
NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd
[2019] NSWCATAP 139 Para 43

…ng [2020] NSWCATAP 63 ( Murabito ), Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.…
Murabito v Commissioner for Fair Trading
[2020] NSWCATAP 63 Para 43

…The principles applicable for summary dismissal under s 55(1)(d) were considered by the Appeal Panel in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 ( Murabito ), Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.…
Davis v NSW Minister for Health
[2023] NSWCATAP 211 Para 41

…substance ’ in s 55(1)(b) of the NCAT Act has been construed to carry several meanings. In the recent decision in Davis v NSW Minister for Health [2023] NSWCATAP 211 at [31], the Appeal Panel cited the following examples of meanings given to this phrase:…

Legislation cited in this decision · 9

Administrative Decisions Review Act 1997 (NSW)
58, 65(1), 7, 9 5 mentions (from Para 1)
Guardianship Act 1987 (NSW)
80A 2 mentions (from Para 1)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention (from Para 1)
Civil Procedure Act 2005 (NSW)
1 mention (from Para 44)
Equal Opportunity Act 1984 (WA)
1 mention
Guardianship and Administration Act 1993 (SA)
1 mention (from Para 3)
Racial Discrimination Act 1975 (Cth)
1 mention
Strata Schemes Management Act 1996 (NSW)
185(4) 1 mention
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
75(1)(a) 1 mention

Medium Neutral Citation:	ELQ v Public Guardian [2024] NSWCATAD 198
Hearing dates:	19 April 2024
Date of orders:	19 July 2024
Decision date:	19 July 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) The application of the Public Guardian for the dismissal of the application is allowed. (2) The application of the applicants for administrative review is dismissed.
Catchwords:	PROCEDURE – summary dismissal – proceedings lacking in substance - want of prosecution
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1998 (NSW) Guardianship Act 1987 (NSW) Civil Procedure Act 2005 (NSW) Guardianship and Administration Act 1993 (SA)
Cases Cited:	BDK v Department of Education and Communities [2015] NSWCATAP 129 Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122 Chalke v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Davis v NSW Minister for Health [2023] NSWCATAP 211 DYH v Public Guardian [2021] NSWCATAD 136 ELQ v Public Guardian [2021] NSWCATAD 184 Hoser v Hartcher [1999] NSWSC 527 K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 New South Wales v Plaintiff A [2012] NSWCA 248 WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 YG and GG v Minister for Community Services [2002] NSWCA 247
Category:	Procedural rulings
Parties:	ELQ (First Applicant) FGO (Second Applicant) Public Guardian (First Respondent) DMO (Second Respondent)
Representation:	FQI (Agent) (First Applicant) FGO (Self-represented) Crown Solicitor (First Respondent) DMO (Self-represented) B Hoyles (Guardian ad Litem for protected person)
File Number(s):	2022/00334153
Publication restriction:	Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), except with the consent of the Tribunal, the publishing or broadcasting of the name of the applicants, the protected person to whom these proceedings relate and the name of the agent appearing on behalf of the first applicant is prohibited.