PV v Public Guardian - [2009] NSWADTAP 68

Appeal Panel - External

CITATION: PV v Public Guardian [2009] NSWADTAP 68

PARTIES:
APPELLANT
PV
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
PW
THIRD RESPONDENT
Teresa Gibbs

FILE NUMBER: 098012

HEARING DATES: 20 October 2009

SUBMISSIONS CLOSED: 24 November 2009

DATE OF DECISION:
25 November 2009

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

CATCHWORDS: External appeal, procedural fairness, reasonable opportunity to be heard

DECISION UNDER APPEAL: Review of a Guardianship Order

FILE NUMBER UNDER APPEAL: C/33264; Matter No. 2009/1156

DATE OF DECISION UNDER APPEAL: 11/24/2009

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59
KA v Public Guardian & Ors [2004] NSWADTAP 25
LA v Protective Commissioner & Ors [2004] NSWADTAP 39
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13

REPRESENTATION:
APPELLANT
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance
THIRD RESPONDENT
No appearance

ORDERS: 1. The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside
2. The matter is remitted to the Guardianship Tribunal to re-determine the application
3. The decision does not come into effect for 28 days after the date of these reasons.

REASONS FOR DECISION

Introduction

1 PW is a 92 year old woman who lives in a nursing home. She has three sons, including PV. On 12 June 2009, the Guardianship Tribunal reviewed the guardianship order that had been made in relation to PW and varied that order to give the Public Guardian extra functions. The extra functions were to make decisions about PW’s health care and to give medical and dental consents. PV has appealed against that decision. He says that he should continue to be the ‘person responsible’ for making those decisions as defined in the Guardianship Act 1987 (Guardianship Act), s 33A.

2 The application for the review of the guardianship order was originally made by the Nursing Unit Manager at the home in which PW resides. The Acting Nursing Unit Manager was substituted as the applicant. The matter was listed for hearing before the Guardianship Tribunal on 9 March 2009 but was adjourned to enable PV to obtain a specialist medical report in relation to his mother. The appeal is against the decision made by the Guardianship Tribunal on 12 June 2009, three months after the adjourned hearing.

3 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision: Guardianship Act, s 67A. An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1). PV indicated that he wished to appeal both on questions of law and against the merits of the Guardianship Tribunal’s decision.

Parties and Representation…

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 PV v Public Guardian

Details

AGLC: PV v Public Guardian [2009] NSWADTAP 68
Case: [2009] NSWADTAP 68
Decision Date: 25 November 2009

CaseChat Overview and Summary

PV initiated an appeal against the Public Guardian concerning a decision made by the Guardianship Tribunal regarding PW. The crux of the dispute was whether the Tribunal had afforded PV a fair opportunity to present their case. This appeal was heard in the Supreme Court, where the court was tasked with reviewing the procedural fairness of the Tribunal's proceedings. The central legal issues were whether the Tribunal had breached the principles of natural justice by not allowing PV a reasonable opportunity to be heard and, if so, whether such a breach necessitated the setting aside of the Tribunal's decision.

The court examined the Guardianship Tribunal's handling of the case, particularly focusing on the procedural fairness provided to PV. It was found that the Tribunal had failed to give PV a reasonable opportunity to present their case adequately. The court noted that the Tribunal did not provide PV with an opportunity to respond to critical evidence presented by the Public Guardian, which was a significant oversight. This failure to allow PV to respond to the evidence presented was deemed to be a breach of natural justice. Consequently, the court concluded that the Tribunal's decision needed to be set aside due to this procedural irregularity.

Given the findings, the court ordered that the decision of the Guardianship Tribunal dated 12 June 2009 be set aside. The matter was to be remitted back to the Tribunal for re-determination, ensuring that PV would have a reasonable opportunity to be heard. The decision did not come into effect for 28 days after the date of the reasons, allowing the parties time to prepare for the rehearing. This outcome aimed to rectify the procedural flaws identified and ensure that the principles of natural justice were upheld in future proceedings.

Orders

Orders of the court

1. The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside

2. The matter is remitted to the Guardianship Tribunal to re-determine the application

3. The decision does not come into effect for 28 days after the date of these reasons.

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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CITATION:	PV v Public Guardian [2009] NSWADTAP 68
PARTIES:	APPELLANT PV FIRST RESPONDENT Public Guardian SECOND RESPONDENT PW THIRD RESPONDENT Teresa Gibbs
FILE NUMBER:	098012
HEARING DATES:	20 October 2009
SUBMISSIONS CLOSED:	24 November 2009
DATE OF DECISION:	25 November 2009
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Bolt M - Non-Judicial Member
CATCHWORDS:	External appeal, procedural fairness, reasonable opportunity to be heard
DECISION UNDER APPEAL:	Review of a Guardianship Order
FILE NUMBER UNDER APPEAL:	C/33264; Matter No. 2009/1156
DATE OF DECISION UNDER APPEAL:	11/24/2009
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 KA v Public Guardian & Ors [2004] NSWADTAP 25 LA v Protective Commissioner & Ors [2004] NSWADTAP 39 R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance
ORDERS:	1. The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside 2. The matter is remitted to the Guardianship Tribunal to re-determine the application 3. The decision does not come into effect for 28 days after the date of these reasons.