FHJ v Public Guardian - [2024] NSWCATAD 42

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: FHJ v Public Guardian [2024] NSWCATAD 42
Hearing dates: 13 November 2023
Last date for submissions:18 December 2023
Date of orders: 21 February 2024
Decision date: 21 February 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:
(1) The disclosure of the names of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.
(2) The Second Applicant’s application for adjournment of the hearing is dismissed.
(3) The decision of the Public Guardian under review is affirmed.

Catchwords:
ADMINISTRATIVE LAW- Merits review- Guardianship- Public Guardian- decision to refuse to appoint independent advocate for person under guardianship- principles in Guardianship Act 1987, section 4 (a) - welfare and interests of person to be given paramount consideration – decision under review the correct and preferable one- decision affirmed.
EVIDENCE - relevance - inferences- Jones v Dunkel inference- availability in Tribunal proceedings- Civil and Administrative Tribunal Act 2013, section 38 (2).

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW) sections 38 (2), 45(4D)
Guardianship Act 1987 (NSW) section 4

Cases Cited:
ASIC v Hellicar (2012) 247 CLR 345
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26
DYH v Public Guardian [2021] NSWCATAD 136 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Meacham v Commissioner of Police [2020] NSWCATAP 107
Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; [1980] FCA 85.
P v NSW Trustee and Guardian [2015] NSWSC 579; WL v NSW Trustee and Guardian [2011] NSWADTAP
ZDU v ZDV [2017] NSWCATAP 197
ZWA v ZWB [2022] NSWCATAP 113

Category: Principal judgment
Parties: FHJ (First Applicant)
FYD (Second Applicant)
Public Guardian (Respondent)
Representation:
First Applicant: No appearance
Second Applicant: Self-represented
Solicitors:
Crown Solicitor (Respondent)

File Number(s): 2023/00222988
Publication restriction:
The disclosure of the name of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.
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?

This is an administrative review of a decision by the Public Guardian, made in the Public Guardian’s capacity as the guardian of a 28 year-old man who has a severe intellectual disability. I have anonymised his real name and made a non-disclosure order in respect of it. I shall refer to him as FZZ.
The Public Guardian was appointed as FZZ’s guardian by order of the Guardianship Division of this Tribunal in September 2013. As the result of the most recent review hearing for FZZ on 17 March 2022, the Public Guardian…

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 FHJ v Public Guardian

Details

AGLC: FHJ v Public Guardian [2024] NSWCATAD 42
Case: [2024] NSWCATAD 42
Decision Date: 21 February 2024

CaseChat Overview and Summary

The proceedings in FHJ v Public Guardian involved the First Applicant, FHJ, and the Second Applicant, who sought to challenge a decision made by the Public Guardian not to appoint an independent advocate for the person under guardianship. The dispute was heard in the Civil and Administrative Tribunal (CAT), with the Tribunal reviewing the merits of the Public Guardian's decision under the Guardianship Act 1987. The primary legal issue before the Tribunal was whether the Public Guardian's decision was correct and preferable, given the statutory obligation to consider the welfare and interests of the person under guardianship as paramount.

The Tribunal examined the evidence presented and considered whether the Public Guardian's decision aligned with the statutory requirement to prioritise the welfare and interests of the person under guardianship. It was also necessary to determine whether the inference drawn from the evidence by the Public Guardian was reasonable and supported by the material before the Tribunal. The Tribunal noted that the Jones v Dunkel inference was applicable in Tribunal proceedings under section 38 (2) of the Civil and Administrative Tribunal Act 2013 and could be drawn if the evidence supported such an inference. Ultimately, the Tribunal found that the Public Guardian's decision was the correct and preferable one, as it was consistent with the statutory obligations and based on a reasonable inference drawn from the evidence.

The Tribunal affirmed the Public Guardian's decision not to appoint an independent advocate, finding that it was consistent with the statutory requirements and based on a reasonable inference from the evidence. Additionally, the Tribunal dismissed the Second Applicant's application for an adjournment of the hearing, finding that it was not in the interests of justice to grant an adjournment. Finally, the Tribunal prohibited the disclosure of the names of the person under guardianship, the First Applicant, and the Second Applicant under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013, in order to protect their privacy.

Orders

Orders of the court

(1) The disclosure of the names of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013.

(2) The Second Applicant’s application for adjournment of the hearing is dismissed.

(3) The decision of the Public Guardian under review is affirmed.

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:	FHJ v Public Guardian [2024] NSWCATAD 42
Hearing dates:	13 November 2023 Last date for submissions:18 December 2023
Date of orders:	21 February 2024
Decision date:	21 February 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	(1) The disclosure of the names of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013. (2) The Second Applicant’s application for adjournment of the hearing is dismissed. (3) The decision of the Public Guardian under review is affirmed.
Catchwords:	ADMINISTRATIVE LAW- Merits review- Guardianship- Public Guardian- decision to refuse to appoint independent advocate for person under guardianship- principles in Guardianship Act 1987, section 4 (a) - welfare and interests of person to be given paramount consideration – decision under review the correct and preferable one- decision affirmed. EVIDENCE - relevance - inferences- Jones v Dunkel inference- availability in Tribunal proceedings- Civil and Administrative Tribunal Act 2013, section 38 (2).
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW) sections 38 (2), 45(4D) Guardianship Act 1987 (NSW) section 4
Cases Cited:	ASIC v Hellicar (2012) 247 CLR 345 Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 DYH v Public Guardian [2021] NSWCATAD 136 Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 Meacham v Commissioner of Police [2020] NSWCATAP 107 Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41; [1980] FCA 85. P v NSW Trustee and Guardian [2015] NSWSC 579; WL v NSW Trustee and Guardian [2011] NSWADTAP ZDU v ZDV [2017] NSWCATAP 197 ZWA v ZWB [2022] NSWCATAP 113
Category:	Principal judgment
Parties:	FHJ (First Applicant) FYD (Second Applicant) Public Guardian (Respondent)
Representation:	First Applicant: No appearance Second Applicant: Self-represented Solicitors: Crown Solicitor (Respondent)
File Number(s):	2023/00222988
Publication restriction:	The disclosure of the name of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013. 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.