UAM

Case [2020] NSWCATGD 85 4 August 2020

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: UAM [2020] NSWCATGD 85
Hearing dates: 4 August 2020
Date of orders: 4 August 2020
Decision date: 04 August 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Decision:
The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 4 August 2020.
3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access UAM has to others and the conditions of access.
b) Accommodation
To decide where UAM may reside.
c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:
i) take UAM to a place approved by the guardian.
ii) keep them at that place.
iii) return them to that place should they leave it.
d) Health care
To decide what health care UAM may receive.
e) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed
PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 4(c), 4(e), 4(g), 14, 14(1)-(2), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(c), 25C; Pt 5

Cases Cited:
Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
IF v IG [2004] NSWADTAP 3
IR v AR [2015] NSWSC 1187
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427
P v NSW Trustee and Guardian [2015] NSWSC 579
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
ZKF v ZKG [2019]…

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

AGLC: UAM [2020] NSWCATGD 85
Case: [2020] NSWCATGD 85
Decision Date: 04 August 2020

CaseChat Overview and Summary

The case involved a review of a guardianship order for UAM, a permanent resident of an aged care facility, where allegations of neglect and abuse by the Public Guardian were raised. Concerns were also expressed about the separation of UAM and their spouse, though it was noted that UAM's service needs were met by the aged care facility. The suitability of the proposed guardian was debated, particularly in light of the absence of supporting material and evidence regarding the guardian's ability to meet statutory criteria. Family conflict was also evident, with a separate representative and a family member opposing the proposed guardian.

The court was required to determine whether the Public Guardian should be reappointed, considering the allegations of neglect and abuse, the suitability of the guardian, and the family's opposition. Additionally, the court had to address procedural issues such as the rejection of an adjournment request and the handling of evidence. The court also needed to consider unsupported allegations of actual bias against a Tribunal member and whether there was sufficient evidence to warrant recusal.

The court found that the Public Guardian should be reappointed as UAM's guardian. The court noted that the allegations of neglect and abuse were unsupported and that UAM's service needs were adequately met by the aged care facility. The court also determined that the absence of supporting material did not provide sufficient evidence to disqualify the proposed guardian. Despite family conflict and opposition, the court found the proposed guardian suitable. Procedurally, the court upheld the rejection of the adjournment request and found no evidence to support the allegations of bias against the Tribunal member.

The court issued a new guardianship order, appointing the Public Guardian as UAM's guardian for a period of two years. The order is a limited guardianship order, granting the guardian specific functions, including access decisions, accommodation decisions, and health care decisions. The guardian is also authorised to authorise others to transport and detain UAM if necessary. The order includes a condition requiring the guardian to take reasonable steps to understand UAM's views before making significant decisions.

Orders

Orders of the court

The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 4 August 2020.

3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access UAM has to others and the conditions of access.

b) Accommodation

To decide where UAM may reside.

c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to:

i) take UAM to a place approved by the guardian.

ii) keep them at that place.

iii) return them to that place should they leave it.

d) Health care

To decide what health care UAM may receive.

e) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent.

CONDITION:

5. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.

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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Citations

UAM [2020] NSWCATGD 85

Cases Citing This Decision

No citing cases yet.

Cases Cited

IR v AR [2015] NSWSC 1187
Citation 1 (Para 104)

…manner consistent with the statutory duty imposed by s 4 of the Act : W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was therefore not satisfied that BYM met the criterion in s 17(1)(c) of the Act.…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 2 (Para 49)

…the Act, s 3(2). He has a significant “need for services to help [him] function normally in community with others” ( P v NSW Trustee and Guardian [2015] NSWSC 579, at [303]) and is incapable of managing his person: the Act, s 3(1).…
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Citation 3 (Para 40)

…These principles are succinctly set out in the decision of the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [68]–[73]:…
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Citation 4 (Para 41)

…n the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33].…
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Citation 5 (Para 97)

…y proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. 69 Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary…
IF v IG [2004] NSWADTAP 3
Citation 6 (Para 52)

…atters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).…
W v G [2003] NSWSC 1170
Citation 7 (Para 104)

…ardianship order, I was not satisfied that he would be able to do so in a manner consistent with the statutory duty imposed by s 4 of the Act : W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was theref…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 8 (Para 72)

…o be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. 70 As Gleeson CJ and Gummow J observed in that cas…
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119
Citation 9

…“68 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) ( Sun v Minister ) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and tha…
[2015] NSWCATAP 77 [2015] NSWCATAP 77
Citation 10 (Para 22)

…“[55] In O’Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should…
NCAT Act and the principles in Armee v Brealey [2017] NSWCATAP 141
Citation 11 (Para 121)

…Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstan…
Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
Citation 12 (Para 33)

…erning adjournment requests were recently set out in the decision of the NCAT Internal Appeal Panel in the decision of Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 at [55]-[56]:…
ZKF v ZKG [2019] NSWCATAP 64
Citation 13 (Para 104)

…s 4 of the Act : W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was therefore not satisfied that BYM met the criterion in s 17(1)(c) of the Act.…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW) 36, 36(1), 38, 38(5)(c), 38(6)(a), 65
7 mentions (from Para 23)
Guardianship Act 1987 (NSW) 3(1)
2 mentions (from Para 1)
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	UAM [2020] NSWCATGD 85
Hearing dates:	4 August 2020
Date of orders:	4 August 2020
Decision date:	04 August 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member
Decision:	The guardianship order for UAM made on 1 August 2019 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 4 August 2020. 3. This is a limited guardianship order giving the guardian(s) custody of UAM to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access UAM has to others and the conditions of access. b) Accommodation To decide where UAM may reside. c) The guardian may authorise others including members of NSW Police and the Ambulance Service of NSW to: i) take UAM to a place approved by the guardian. ii) keep them at that place. iii) return them to that place should they leave it. d) Health care To decide what health care UAM may receive. e) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where UAM is not capable of giving a valid consent. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring UAM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a), 4(c), 4(e), 4(g), 14, 14(1)-(2), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(c), 25C; Pt 5
Cases Cited:	Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 IF v IG [2004] NSWADTAP 3 IR v AR [2015] NSWSC 1187 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 P v NSW Trustee and Guardian [2015] NSWSC 579 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019]…