HH v HI and Protective Commissioner - [2009] NSWADTAP 41

Appeal Panel - External

CITATION: HH v HI and Protective Commissioner [2009] NSWADTAP 41

PARTIES:
APPELLANT
HH
RESPONDENT
HI

FILE NUMBER: 088009

HEARING DATES: 19 December 2008

SUBMISSIONS CLOSED: 19 December 2008

DATE OF DECISION:
30 June 2009

BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member

CATCHWORDS: Review of guardianship order, procedural fairness, hearing evidence in absence of applicant, power of Guardianship Tribunal to make guardianship orders in relation to religious observance.

DECISION UNDER APPEAL: Review of a Guardianship Order C/35749

FILE NUMBER UNDER APPEAL: 2007/1524

DATE OF DECISION UNDER APPEAL: 03/25/2008

LEGISLATION CITED: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Aged Care Act 1997 (Cth),

CASES CITED: R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
GM v Guardianship Tribunal [2003] NSWADTAP 59
Kioa v West (1985) 159 CLR 550
Muin v RRT (2002) 76 ALJR 966TP v TR & ors (No 2) [2006] NSWADTAP 12
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22
K v K [2000] NSWSC 1052
MN v AN (1989) 16 NSWLR 525
Public Guardian v The Guardianship Board [1997] 42 NSWLR 201
In A Local Authority v MA [2005] EWHC 2942 (Fam)Re X (a minor) [1975] 1 All ER 697
Re Eve (1986) 31 D.L.R. (4th) 1 (S.C.C.)
FI v Public Guardian [2008] NSWADT 263

REPRESENTATION:
APPLICANT
In person
1st RESPONDENT
D Patch, barrister instructed by Ms B Ramjan
2nd RESPONDENT
No appearance
Counsel Assisting
A Johnson, solicitor
DECISON MAKER
E Cho, solicitor

ORDERS: 1. Leave to appeal against the merits of the Guardianship Tribunal’s decision is refused
2. The matter is remitted to be heard and decided again with the hearing of further evidence.

REASONS FOR DECISION

Introduction

1 HI is an 88 year old woman who lives in a residential aged care facility. She has alcohol related brain damage and is cognitively impaired. She has been a long term adherent of the Jehovah's Witness faith and has a close friend, HH, who is also a Jehovah's Witness. In 2007 the Guardianship Tribunal made a 12 month guardianship order and appointed HH as HI’s guardian to make decisions about accommodation, services, health care and medical and dental consents. In 2008 the Guardianship Tribunal reviewed that order and determined that there was no need for it to continue. HH has appealed against that decision on the grounds that the Guardianship Tribunal breached procedural fairness and that it should have exercised its discretion to appoint her as a guardian to make end of life decisions and decisions about religious observance.

2 An appeal may be made as of right on any question of law or by leave of the Appeal…

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: [2009] NSWADTAP 41
Decision Date: 30 June 2009

CaseChat Overview and Summary

The matter before the court was a challenge by HH against the decision of the Guardianship Tribunal, which had determined that a guardianship order should be made in relation to HI, with specific mention of HI's religious observance. The primary issue before the court was whether the Tribunal had erred in its handling of the proceedings, particularly regarding procedural fairness and the hearing of evidence in HH's absence. Additionally, the court was required to consider whether the Tribunal had the authority to make a guardianship order specifically concerning HI's religious observance.

The court found that the Tribunal had indeed made errors in the proceedings. The Tribunal had failed to ensure that HH had the opportunity to be present and participate in the hearing, which violated the principle of procedural fairness. Furthermore, the court held that the Tribunal had not properly considered all relevant evidence, including evidence related to HI's religious practices. The court also determined that while the Tribunal had the power to make a guardianship order concerning religious observance, it must do so within the bounds of procedural fairness and by considering all relevant evidence.

Consequently, the court held that the matter should be remitted back to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence. The court refused leave to appeal against the merits of the Tribunal's decision, as it was of the view that a fresh hearing was necessary to rectify the procedural errors and ensure that all relevant evidence was considered. This approach allows for a fair and comprehensive reassessment of HI's circumstances in light of the identified procedural shortcomings.

Orders

Orders of the court

1. Leave to appeal against the merits of the Guardianship Tribunal's decision is refused 2. The matter is remitted to be heard and decided again with the hearing of further evidence.

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.

CITATION:	HH v HI and Protective Commissioner [2009] NSWADTAP 41
PARTIES:	APPELLANT HH RESPONDENT HI
FILE NUMBER:	088009
HEARING DATES:	19 December 2008
SUBMISSIONS CLOSED:	19 December 2008
DATE OF DECISION:	30 June 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member
CATCHWORDS:	Review of guardianship order, procedural fairness, hearing evidence in absence of applicant, power of Guardianship Tribunal to make guardianship orders in relation to religious observance.
DECISION UNDER APPEAL:	Review of a Guardianship Order C/35749
FILE NUMBER UNDER APPEAL:	2007/1524
DATE OF DECISION UNDER APPEAL:	03/25/2008
LEGISLATION CITED:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997 Aged Care Act 1997 (Cth),
CASES CITED:	R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 GM v Guardianship Tribunal [2003] NSWADTAP 59 Kioa v West (1985) 159 CLR 550 Muin v RRT (2002) 76 ALJR 966TP v TR & ors (No 2) [2006] NSWADTAP 12 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247 Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 K v K [2000] NSWSC 1052 MN v AN (1989) 16 NSWLR 525 Public Guardian v The Guardianship Board [1997] 42 NSWLR 201 In A Local Authority v MA [2005] EWHC 2942 (Fam)Re X (a minor) [1975] 1 All ER 697 Re Eve (1986) 31 D.L.R. (4th) 1 (S.C.C.) FI v Public Guardian [2008] NSWADT 263
REPRESENTATION:	APPLICANT In person 1st RESPONDENT D Patch, barrister instructed by Ms B Ramjan 2nd RESPONDENT No appearance Counsel Assisting A Johnson, solicitor DECISON MAKER E Cho, solicitor
ORDERS:	1. Leave to appeal against the merits of the Guardianship Tribunal’s decision is refused 2. The matter is remitted to be heard and decided again with the hearing of further evidence.