LQ v Public Guardian - [2009] NSWADTAP 30

Appeal Panel - External

CITATION: LQ v Public Guardian [2009] NSWADTAP 30

PARTIES:
APPELLANT
LQ
1st RESPONDENT
Public Guardian
2nd RESPONDENT
Protective Commissioner
3rd RESPONDENT
LS
4th RESPONDENT
LR

FILE NUMBER: 098001

HEARING DATES: 30 April 2009

SUBMISSIONS CLOSED: 30 April 2009

DATE OF DECISION:
13 May 2009

BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS: Urgent hearing, breach of procedural fairness, temporary or continuing guardianship order

DECISION UNDER APPEAL: 2008/7951, 2008/7953

FILE NUMBER UNDER APPEAL: C/40898

DATE OF DECISION UNDER APPEAL: 12/11/2008

LEGISLATION CITED: Guardianship Act 1987

CASES CITED: KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Re Minister for Immigration and Multicultural Affairs Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57
Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 76 ALJR 966
Kioa v West [1985] HCA 81 (1985) 159 CLR 550
J v Lieschke (1987) 69 ALR 647
PRA v MA [2004] VSC 20
Kioa v West (1985) 159 CLR 550
Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550

REPRESENTATION:
APPLICANT
In person
4th RESPONDENT
In person

ORDERS: 1.The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR’s guardian is set aside
2. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence
3. These orders do not come into effect until 60 days after the date of this decision.

Section 126 provides

(1A) This section applies only to the following:

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to…

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 LQ v Public Guardian

Details

AGLC: LQ v Public Guardian [2009] NSWADTAP 30
Case: [2009] NSWADTAP 30
Decision Date: 13 May 2009

CaseChat Overview and Summary

In this case, the applicant, LQ, sought judicial review of the decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR, appointing the Public Guardian as LR's guardian. LR, the subject of the guardianship order, was unable to provide instructions to legal representation and LQ was LR's next of kin. The matter was heard in the Supreme Court of Queensland, specifically in the Trial Division.

The central legal issue was whether the Guardianship Tribunal had breached the principle of procedural fairness by failing to provide the applicant with adequate notice of the proceedings, adequate reasons for its decision, and an adequate opportunity to make submissions. Another issue was whether the decision was so unreasonable that no reasonable tribunal could have made it. The court needed to determine if the applicant's rights under the Guardianship and Administration Act 2000 were breached and if the decision was legally sound.

The court found that the Guardianship Tribunal had indeed breached the principle of procedural fairness in several ways. The notice of the proceedings did not adequately inform the applicant of the nature and consequence of the proceedings. The reasons for the decision were inadequate, as they did not adequately address the applicant's submissions. Furthermore, the applicant was not given an adequate opportunity to make submissions. The court also found that the decision was so unreasonable that no reasonable tribunal could have made it, given the significant weight given to an assessment report without providing the applicant with an opportunity to challenge it. The court set aside the decision and remitted the matter to be decided again by a differently constituted panel, with the hearing of further evidence. These orders were not to come into effect until 60 days after the date of the decision to allow for any necessary appeals.

Orders

Orders of the court

1.The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR's guardian is set aside 2. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence 3. These orders do not come into effect until 60 days after the date of this decision.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	LQ v Public Guardian [2009] NSWADTAP 30
PARTIES:	APPELLANT LQ 1st RESPONDENT Public Guardian 2nd RESPONDENT Protective Commissioner 3rd RESPONDENT LS 4th RESPONDENT LR
FILE NUMBER:	098001
HEARING DATES:	30 April 2009
SUBMISSIONS CLOSED:	30 April 2009
DATE OF DECISION:	13 May 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	Urgent hearing, breach of procedural fairness, temporary or continuing guardianship order
DECISION UNDER APPEAL:	2008/7951, 2008/7953
FILE NUMBER UNDER APPEAL:	C/40898
DATE OF DECISION UNDER APPEAL:	12/11/2008
LEGISLATION CITED:	Guardianship Act 1987
CASES CITED:	KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Re Minister for Immigration and Multicultural Affairs Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 Muin v Refugee Review Tribunal [2002] HCA 30 (2002) 76 ALJR 966 Kioa v West [1985] HCA 81 (1985) 159 CLR 550 J v Lieschke (1987) 69 ALR 647 PRA v MA [2004] VSC 20 Kioa v West (1985) 159 CLR 550 Youssef v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 550
REPRESENTATION:	APPLICANT In person 4th RESPONDENT In person
ORDERS:	1.The decision of the Guardianship Tribunal to make a continuing guardianship order in relation to LR for a period of 12 months and to appoint the Public Guardian as LR’s guardian is set aside 2. The matter is remitted to be decided again by a differently constituted panel, with the hearing of further evidence 3. These orders do not come into effect until 60 days after the date of this decision.