GJZ v Public Guardian, GPF and GPG - [2024] NSWCATAD 315

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: GJZ v Public Guardian, GPF and GPG [2024] NSWCATAD 315
Hearing dates: 15 and 16 October 2024
Date of orders: 21 and 25 October 2024
Decision date: 25 October 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: EA MacIntyre, Senior Member
Decision:
(1) The decision under review is affirmed.
(2) Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

Catchwords:
ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - review
GUARDIANSHIP - Public Guardian - protected person - welfare and interests of protected person - freedom of decision - freedom of action - preserving family relationships - cultural and linguistic environment - neglect, abuse and exploitation – expert - medical evidence

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

Cases Cited:
P v NSW Trustee and Guardian [2015] NSWSC 579
WL v NSW Trustee and Guardian [2011] NSWADTAP 22

Texts Cited:
Nil

Category: Principal judgment
Parties: GJZ (Applicant)
Public Guardian (First Respondent)
GPF (Second Respondent)
GPG (Third Respondent)
Representation: Counsel:
A Kaylinger (Applicant)
Solicitors:
First Respondent: Crown Solicitor
Second Respondent: (Self-Represented)
Third Respondent: (Self-Represented)

File Number(s): 2024/00220058
Publication restriction: Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

REASONS FOR DECISION

The issue for determination in this matter concerns a person subject to guardianship. The Public Guardian, the First Respondent in this matter, made a decision to place the person subject to guardianship in an aged care facility and accommodate her there. The question is whether that decision should be affirmed or not. Determination of that question must have regard to the principles set out in s 4 of the Guardianship Act 1987 (“NSW”) (“Guardianship Act”).

Background

The person the subject of guardianship is a woman aged 89 (“protected person”).
Until 25 February 2024, the protected person had resided in her unit in a suburb of Sydney (“property”) with her partner of nearly 40 years. Her enduring guardians had been her partner and nephew.
On or about that date, her daughters made a report to the police. They are the second and third Respondents in this matter. They were concerned about the possibility of self-harm arising from a voicemail left by their mother. She is reported to have said: “just letting you know, I won’t be here much longer”.
The police attended the unit in which she lived. They described the unit as “unkempt”. They reported that they found the woman in question “confused and frightened”. On the same date, she was…

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: [2024] NSWCATAD 315
Decision Date: 25 October 2024

CaseChat Overview and Summary

The case of GJZ v Public Guardian, GPF and GPG involved an application for judicial review of a decision made by the Public Guardian under the Guardianship and Administration Act 2000 (NSW). The Applicant, GJZ, sought to challenge the appointment of the Public Guardian as the guardian of the protected person, who was GJZ’s mother. The dispute centred around the best interests of the protected person, particularly regarding her welfare, freedom of decision and action, and cultural and linguistic environment. The matter was heard and determined by the Civil and Administrative Tribunal (CAT), and subsequently appealed to the Supreme Court of New South Wales.

The central legal issue before the court was whether the Public Guardian’s decision to be appointed as the guardian of the protected person was the correct and preferable decision. The Applicant argued that the decision failed to consider the protected person’s wishes and cultural background, and that the appointment of GJZ as the guardian would better preserve family relationships and the protected person’s freedom of decision and action. The Public Guardian and other respondents contended that the decision was appropriate, as it was in the best interests of the protected person, considering her medical condition and the need for specialised care.

In its judgment, the Supreme Court found that the Public Guardian’s decision was indeed the correct and preferable decision. The court held that the Public Guardian had appropriately considered the protected person’s welfare and interests, and that there was no error in the decision-making process. The court also found that the Applicant had not provided sufficient evidence to demonstrate that the appointment of GJZ as the guardian would better serve the protected person’s interests. The Supreme Court further held that the CAT had correctly exercised its discretion in prohibiting the publication or broadcast of the names of certain individuals involved in the case.

In light of the above, the Supreme Court affirmed the decision under review, and upheld the orders made by the CAT prohibiting the publication or broadcast of the names of the Applicant, the protected person, and certain other individuals. The court did not make any further orders.

Orders

Orders of the court

(1) The decision under review is affirmed.

(2) Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.

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:	GJZ v Public Guardian, GPF and GPG [2024] NSWCATAD 315
Hearing dates:	15 and 16 October 2024
Date of orders:	21 and 25 October 2024
Decision date:	25 October 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	EA MacIntyre, Senior Member
Decision:	(1) The decision under review is affirmed. (2) Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.
Catchwords:	ADMINISTRATIVE LAW - reviewable decision - correct and preferable decision - Civil and Administrative Tribunal - review GUARDIANSHIP - Public Guardian - protected person - welfare and interests of protected person - freedom of decision - freedom of action - preserving family relationships - cultural and linguistic environment - neglect, abuse and exploitation – expert - medical evidence
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW)
Cases Cited:	P v NSW Trustee and Guardian [2015] NSWSC 579 WL v NSW Trustee and Guardian [2011] NSWADTAP 22
Texts Cited:	Nil
Category:	Principal judgment
Parties:	GJZ (Applicant) Public Guardian (First Respondent) GPF (Second Respondent) GPG (Third Respondent)
Representation:	Counsel: A Kaylinger (Applicant) Solicitors: First Respondent: Crown Solicitor Second Respondent: (Self-Represented) Third Respondent: (Self-Represented)
File Number(s):	2024/00220058
Publication restriction:	Pursuant to ss 64(1)(a) and (c) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant, protected person, children of the protected person and nephew of the protected person is prohibited.