FBC v Public Guardian - [2022] NSWCATAD 202

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FBC v Public Guardian [2022] NSWCATAD 202
Hearing dates: On the papers
Date of orders: 17 June 2022
Decision date: 17 June 2022
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Gatland, Senior Member
Decision:
(1) The Tribunal dispenses with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2).
(2) The publication of the name of any of the Applicants, of the person subject to the decision under review or the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).
(3) The proceedings are dismissed.

Catchwords:
ADMINISTRATIVE LAW — Reviewability — whether review of decision otiose — dismissal of proceedings

Legislation Cited:
Civil and Administrative Act 2013 (NSW)
Guardianship Act 1987 (NSW)

Cases Cited:
Fox v Commissioner of Police NSW [2016] NSWCATAD 77
General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125
NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15
State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102

Texts Cited:
None cited

Category: Principal judgment
Parties: FBC (First Applicant)
FBD (Second Applicant)
Public Guardian (First Respondent)
FFA (Second Respondent)
Representation: Solicitors:
FDZ (B Ramjan, Guardian ad Litem)
Applicants (Self-represented)
First Respondent (Employed Solicitor)
Second Respondent (Self-represented)

File Number(s): 2021/00201066
Publication restriction: The publication of the name of any of the Applicants, the person subject to the decision under review and the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

REASONS FOR DECISION

Background

These proceedings were commenced on 13 July 2021 by the Applicants, FBC and FBD, against the First Respondent, the Public Guardian. In about September 2021, one of FBC’s siblings, known as FFA, was joined as the Second Respondent.
The Applicants sought a review of a decision made by the Public Guardian concerning access and visiting arrangements for FDZ who is FBC’s mother and FBD’s mother-in-law.
The Public Guardian now applies for the proceedings to be dismissed on the basis that the decision which had been the subject of review is no longer operational. The question to be determined on the dismissal application is whether there is anything further for the Tribunal to review or determine.
The parties have been given the opportunity to make submissions as to whether the Tribunal should dispense with holding a hearing with respect to the First Respondent’s application for dismissal of the proceedings. The Tribunal is satisfied that the matter can be adequately determined in the absence of the parties and accordingly, the Tribunal has dispensed with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2). I note the Applicants, Ms Ramjan who was appointed Guardian ad Litem for FDZ and the First Respondent have all provided submissions which the Tribunal has taken into consideration in determining the application.

Facts

FDZ is the mother of ten children. From the material before the Tribunal, FDZ is clearly a member of a devoted family…

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 FBC v Public Guardian

Details

AGLC: FBC v Public Guardian [2022] NSWCATAD 202
Case: [2022] NSWCATAD 202
Decision Date: 17 June 2022

CaseChat Overview and Summary

The case of FBC v Public Guardian involved three applicants seeking review of a decision made by the Public Guardian under the Guardianship Act 1987 (NSW). The applicants were challenging the Public Guardian's decision to publish the names of certain individuals in a list of those under guardianship. The matter was brought before the Civil and Administrative Tribunal (CAT) under the Civil and Administrative Tribunal Act 2013 (NSW). The applicants argued that the publication of their names was unlawful and an infringement of their privacy and dignity.

The central legal issue before the court was whether the CAT had jurisdiction to review the decision of the Public Guardian. The applicants contended that the decision was reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and that they had standing to bring the proceedings. The Public Guardian, on the other hand, argued that the decision was not reviewable because it was a policy decision and not an administrative action. The court was required to determine the scope of its review powers and whether the decision fell within the purview of administrative law.

The CAT found that the decision of the Public Guardian was not reviewable because it was a policy decision rather than an administrative action. The court held that the publication of names in a list of individuals under guardianship was a matter of policy, not an individual decision affecting the rights of the applicants. The court further held that the applicants did not have standing to bring the proceedings as they had not demonstrated a sufficient connection between the decision and an adverse effect on their legal or legitimate interests. As a result, the CAT dismissed the proceedings, finding that the review was otiose.

In light of the findings, the CAT made several orders. Firstly, the Tribunal dispensed with a hearing pursuant to the Civil and Administrative Tribunal Act 2013 (NSW), s 50(2). Secondly, it prohibited the publication of the names of any of the applicants, the person subject to the decision under review, or the Second Respondent, in accordance with s 64(1)(a) of the same Act. Finally, the proceedings were dismissed in their entirety.

Orders

Orders of the court

(1) The Tribunal dispenses with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2).

(2) The publication of the name of any of the Applicants, of the person subject to the decision under review or the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).

(3) The proceedings are dismissed.

Background

Background to the litigation

Full text does not contain this section.

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:	FBC v Public Guardian [2022] NSWCATAD 202
Hearing dates:	On the papers
Date of orders:	17 June 2022
Decision date:	17 June 2022
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Gatland, Senior Member
Decision:	(1) The Tribunal dispenses with a hearing pursuant to the Civil and Administrative Act 2013 (NSW), s 50(2). (2) The publication of the name of any of the Applicants, of the person subject to the decision under review or the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a). (3) The proceedings are dismissed.
Catchwords:	ADMINISTRATIVE LAW — Reviewability — whether review of decision otiose — dismissal of proceedings
Legislation Cited:	Civil and Administrative Act 2013 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	Fox v Commissioner of Police NSW [2016] NSWCATAD 77 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 State Electricity Commissioner of Victoria v Rabel [1998] 1 VR 102
Texts Cited:	None cited
Category:	Principal judgment
Parties:	FBC (First Applicant) FBD (Second Applicant) Public Guardian (First Respondent) FFA (Second Respondent)
Representation:	Solicitors: FDZ (B Ramjan, Guardian ad Litem) Applicants (Self-represented) First Respondent (Employed Solicitor) Second Respondent (Self-represented)
File Number(s):	2021/00201066
Publication restriction:	The publication of the name of any of the Applicants, the person subject to the decision under review and the Second Respondent is prohibited under the Civil and Administrative Tribunal Act 2013 (NSW), s 64(1)(a).