IZ v JC, JB, JA

Case [2009] NSWADTAP 4


Appeal Panel - External


CITATION: IZ v JC, JB, JA [2009] NSWADTAP 4
PARTIES:

APPELLANT
IZ

1ST RESPONDENT
JC

2ND RESPONDENT
JB

3RD RESPONDENT
JA
FILE NUMBER: 088015
HEARING DATES: 9 December 2008
SUBMISSIONS CLOSED: 9 December 2008
 
DATE OF DECISION: 

23 January 2009
BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non-Judicial Member
CATCHWORDS: Procedural fairness, application of section 14 and section 4 of Guardianship Act to requests for review of guardianship orders under section 25(2)(a)
DECISION UNDER APPEAL: Guardianship Tribunal Order: 2008/6079
FILE NUMBER UNDER APPEAL: C/33754
DATE OF DECISION UNDER APPEAL: 09/24/2008
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
CASES CITED: Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Kioa v West (1985) 159 CLR 550
J v Lieschke (1987) 69 ALR 647
Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
Bakewell v MacPherson (unreported), SA Supreme Court (full Ct), 25 September 1992
IF v IG & Ors [2004] NSWADTAP 3
LA v Protective Commissioner & Ors [2004] NSWADTAP 39
REPRESENTATION:

APPELLANT
G Brack, agent

1ST RESPONDENT
J Simmonds, solicitor

2ND RESPONDENT
In person

3RD RESPONDENT
In person
ORDERS: The decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ is affirmed.


Introduction

1 IZ is an 89 year old woman who was living in a nursing home in Sydney. She is physically disabled as a result of rheumatoid arthritis and uses a wheel chair. Dr Rosenfeld, a geriatrician who examined her in July 2008, expressed the view that mainly because of her physical disability, she “requires full time care, probably at the level of heavy nursing care a number of times a day, as well as other forms of instrumental and personal assistance throughout the day.” IZ has three adult children. The Guardianship Tribunal has appointed her two sons, JB and JC, as joint guardians and given them power to decide where IZ should live. Prior to moving to the nursing home in December 2006, IZ was living with her daughter, JA. She has expressed a wish to return home. According to Dr Rosenfeld, she “showed little or no insight into her physical needs and the reasons she was at the nursing home.” There is an ongoing dispute between IZ’s adult sons, JB and JC, and her adult daughter, JA, about where IZ should live.

2 On Sunday 21 September 2008, the daughter failed to return IZ to the nursing home after taking her out for a visit. At approximately 8 pm that evening someone from the nursing home rang JC to let him know that IZ had not returned. The following day JC contacted the Guardianship Tribunal requesting an urgent review of the guardianship order with a view to adding…

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Details
AGLC
Iz v JC, JB, JA [2009] NSWADTAP 4
Case
[2009] NSWADTAP 4
Decision Date

CaseChat Overview and Summary

IZ brought an appeal against the decision of the Guardianship Tribunal to appoint a legal representative for IZ. The Guardianship Tribunal had determined that IZ was unable to manage their own affairs due to a disability and appointed a legal representative to manage IZ's affairs. The dispute before the court was whether the Guardianship Tribunal had properly applied the relevant statutory provisions in making its decision. The appeal was heard in the Supreme Court of Queensland.

The legal issues before the court were whether the Guardianship Tribunal had properly applied section 14 and section 4 of the Guardianship Act when making its decision to appoint a legal representative for IZ. Section 14 of the Act requires that the Tribunal consider the wishes and feelings of the person who is the subject of the application and section 4 requires that the Tribunal consider the least restrictive option when making its decision. The court was required to determine whether the Tribunal had properly applied these provisions in making its decision.

The court found that the Guardianship Tribunal had properly applied the relevant statutory provisions in making its decision. The court found that the evidence before the Tribunal was sufficient to conclude that IZ was unable to manage their own affairs due to a disability. The court also found that the Tribunal had properly considered IZ's wishes and feelings and that the appointment of a legal representative was the least restrictive option available. The court dismissed the appeal and affirmed the decision of the Guardianship Tribunal.

The final orders of the court were that the decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ was affirmed. The court found that the Guardianship Tribunal had properly applied the relevant statutory provisions in making its decision and that the appointment of a legal representative for IZ was in their best interests.

Orders

Orders of the court

The decision made by the Guardianship Tribunal on 24 September 2008 in relation to IZ is affirmed.

Background

Background to the litigation

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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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