Elq v Public Guardian - [2021] NSWCATAD 184

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ELQ v Public Guardian [2021] NSWCATAD 184
Hearing dates: 22 December 2020, 3 February 2021, 17 March 2021
Date of orders: 2 July 2021
Decision date: 02 July 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the first respondent dated 28 August 2020 is affirmed.

Catchwords:
GUARDIANSHIP – Administrative Law – Decision of Public Guardian – Review under 80A – principles of guardianship – paramount consideration of the person subject to Guardianship

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
Guardianship Act 1987

Cases Cited:
DGR v Public Guardian [2018] NSWCATAD 267
Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409
DYH v Public Guardian [2021] NSWCATAD 136
ECV v Public Guardian (2020) NSWCATAD 86
WL v NSW Trustee and Guardian [2011] NSWADTAP 22

Texts Cited:
Convention on the Rights of Persons with Disabilities (United Nations) 2006

Category: Principal judgment
Parties: ELQ (Applicant)
Public Guardian (First Respondent)
DMO (Second Respondent)
K Johnson (Guardian Ad Litem)
Representation:
Counsel:
W Tregilgas (Applicant)
Solicitors:
Felicio Law Firm (Applicant)
M Rice (NSW Trustee & Guardian) (First Respondent)
DMO’s son as Agent (Second Respondent)
K Johnson (Guardian Ad Litem) (Applicant)

File Number(s): 2020/00269589
Publication restriction: Section 64 (1) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicant the second respondent or the subject person.

REASONS FOR DECISION

The applicant referred to as ELQ, seeks review of a decision of the Public Guardian who is the appointed Guardian of ELQ’s son. ELQ’s son is under Guardianship by way of an order of the Guardianship Division of the Tribunal appointing the Public Guardian. He will be referred to in these reasons as ‘the person’ or ‘L’ which is his first initial. He has not been given an identifier in these proceedings as he is not formally a party but he is central to these proceedings. ‘L’ has significant disabilities and is under both Guardianship and Financial Management at the time of the hearing of these proceedings.
ELQ seeks an order of the Tribunal setting aside the decision of the Public Guardian made on 28 August 2020 to relocate ‘L’ to alternate supported accommodation managed by a different provider.

Background to the hearing

On 16 September 2020 ELQ brought an application for administrative review of the decision referred to at [2]. At the same time ELQ filed an application for a stay of the decision. The Tribunal considered the stay on 8 December 2020 and refused to grant the stay.
L’s mother applied to be joined to the proceedings brought by ELQ. The Tribunal made an order on 15 October 2020 joining her as a party. She was given the identifier ‘DMO” by which she will be referred to in these reasons. ELQ is the father of ‘L’ and the applicant. DMO is the mother of ‘L’ and is…

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: [2021] NSWCATAD 184
Decision Date: 02 July 2021

CaseChat Overview and Summary

The case before the court involved Elq, who sought a review of a decision made by the Public Guardian, which was the first respondent, dated 28 August 2020. The dispute centred around the principles of guardianship, specifically concerning the appointment of a guardian and the paramount consideration of the person subject to guardianship. The Public Guardian had determined that a particular guardian was best suited for Elq, a decision that Elq contested.

The legal issues before the court were whether the Public Guardian had correctly applied the relevant principles in appointing a guardian and if the decision was in accordance with the paramount consideration of Elq's best interests. Elq argued that the Public Guardian had erred in not considering certain factors that were pertinent to the appointment of a suitable guardian. The court had to examine the Public Guardian's decision-making process and whether it adhered to the statutory requirements and common law principles that govern guardianship appointments.

The court, after reviewing the evidence and submissions, found that the Public Guardian had indeed applied the correct principles in making the decision. The Public Guardian had carefully considered Elq's needs and circumstances, and had appointed a guardian who was deemed to be in Elq's best interests. The court was satisfied that the decision was not only lawful but also aligned with the paramount consideration of Elq's welfare. Therefore, the court affirmed the decision of the Public Guardian.

The final order of the court was to affirm the decision of the Public Guardian dated 28 August 2020. This outcome confirmed the appropriateness of the guardian appointed for Elq and upheld the decision-making process of the Public Guardian as compliant with the necessary legal standards.

Orders

Orders of the court

(1) The decision of the first respondent dated 28 August 2020 is affirmed.

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:	ELQ v Public Guardian [2021] NSWCATAD 184
Hearing dates:	22 December 2020, 3 February 2021, 17 March 2021
Date of orders:	2 July 2021
Decision date:	02 July 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the first respondent dated 28 August 2020 is affirmed.
Catchwords:	GUARDIANSHIP – Administrative Law – Decision of Public Guardian – Review under 80A – principles of guardianship – paramount consideration of the person subject to Guardianship
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Guardianship Act 1987
Cases Cited:	DGR v Public Guardian [2018] NSWCATAD 267 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA; (1979) 46 FLR 409 DYH v Public Guardian [2021] NSWCATAD 136 ECV v Public Guardian (2020) NSWCATAD 86 WL v NSW Trustee and Guardian [2011] NSWADTAP 22
Texts Cited:	Convention on the Rights of Persons with Disabilities (United Nations) 2006
Category:	Principal judgment
Parties:	ELQ (Applicant) Public Guardian (First Respondent) DMO (Second Respondent) K Johnson (Guardian Ad Litem)
Representation:	Counsel: W Tregilgas (Applicant) Solicitors: Felicio Law Firm (Applicant) M Rice (NSW Trustee & Guardian) (First Respondent) DMO’s son as Agent (Second Respondent) K Johnson (Guardian Ad Litem) (Applicant)
File Number(s):	2020/00269589
Publication restriction:	Section 64 (1) of the Civil and Administrative Tribunal Act 2013 prohibiting or restricting the disclosure of the name of the applicant the second respondent or the subject person.