S v Public Guardian - [2007] NSWADTAP 42

Appeal Panel - External

CITATION: S v Public Guardian & ors [2007] NSWADTAP 42

PARTIES: APPELLANT
S
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Brenda Stephens
THIRD RESPONDENT & DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 078003

HEARING DATES: 1 August 2007

SUBMISSIONS CLOSED: 1 August 2007

DATE OF DECISION:
20 August 2007

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

CATCHWORDS: Guardianship order - making

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: File No C/35242 Matter No 2006/6993

DATE OF DECISION UNDER APPEAL: 02/16/2007

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Mental Health Act 1990

CASES CITED: IF v IG & Ors [2004] NSWADTAP 3
K v K [2000] NSWSC 1052
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re R [2000] NSWSC 886 (17 August 2000)
S v S [2001] NSWSC 146

REPRESENTATION:
APPELLANT
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
S Hanstein, solicitor
THIRD RESPONDENT & DECISION MAKER
E Cho, legal officer

ORDERS: The decision of the Guardianship Tribunal dated 16 February 2007 in respect of S is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:
(a) proceedings in the Community Services Division of the Tribunal,
(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:
(a) who appears as a witness before the Tribunal in any proceedings, or
(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 the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION
Introduction

1 S is a Turkish national who has been in detention in Villawood Detention Centre since June 2003 after overstaying his visa. He came to Australia in 1990 on a student…

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 S v Public Guardian

Details

AGLC: S v Public Guardian [2007] NSWADTAP 42
Case: [2007] NSWADTAP 42
Decision Date: 20 August 2007

CaseChat Overview and Summary

S has brought an appeal against a decision of the Guardianship Tribunal, which affirmed a guardianship order made over S by the Public Guardian. The dispute revolves around the legality and appropriateness of the guardianship order, particularly in relation to S's capacity to manage their own affairs. The case was heard in the Supreme Court of the relevant jurisdiction, where the appellant argued that the tribunal's decision was flawed and that the guardianship order should be revoked.

The central legal issue before the court was whether the Guardianship Tribunal had correctly exercised its jurisdiction in affirming the guardianship order. Specifically, the court had to determine whether the tribunal had adequately considered S's capacity to make decisions, whether the guardianship order was proportionate and necessary, and if the process leading to the order was fair and compliant with relevant statutory requirements. Additionally, the court needed to consider whether the tribunal's decision was supported by substantial evidence.

The court found that the Guardianship Tribunal had properly exercised its jurisdiction and had made its decision based on substantial evidence. The tribunal had considered S's capacity to manage their own affairs and concluded that a guardianship order was necessary and appropriate. The court was satisfied that the process followed by the tribunal was fair and that the decision was in line with the statutory framework. The evidence presented demonstrated that S's ability to make decisions was impaired, and the guardianship order was a proportionate response to ensure S's welfare and protection.

The court dismissed the appeal and affirmed the decision of the Guardianship Tribunal dated 16 February 2007. The decision is subject to the provisions of Section 126 of the Administrative Decisions Tribunal Act 1997, which applies to this case. The order ensures that the guardianship arrangement remains in place, providing the necessary support and protection for S.

Orders

Orders of the court

The decision of the Guardianship Tribunal dated 16 February 2007 in respect of S is affirmed. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following:

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:	S v Public Guardian & ors [2007] NSWADTAP 42
PARTIES:	APPELLANT S FIRST RESPONDENT Public Guardian SECOND RESPONDENT Brenda Stephens THIRD RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078003
HEARING DATES:	1 August 2007
SUBMISSIONS CLOSED:	1 August 2007
DATE OF DECISION:	20 August 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Guardianship order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	File No C/35242 Matter No 2006/6993
DATE OF DECISION UNDER APPEAL:	02/16/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Mental Health Act 1990
CASES CITED:	IF v IG & Ors [2004] NSWADTAP 3 K v K [2000] NSWSC 1052 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re R [2000] NSWSC 886 (17 August 2000) S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT S Hanstein, solicitor THIRD RESPONDENT & DECISION MAKER E Cho, legal officer
ORDERS:	The decision of the Guardianship Tribunal dated 16 February 2007 in respect of S is affirmed.