WH v Public Guardian & Ors - [2007] NSWADTAP 8

Appeal Panel - External

CITATION: WH v Public Guardian & Ors [2007] NSWADTAP 8

PARTIES: APPELLANT
WH
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
Lorraine Macindoe
FOURTH RESPONDENT
WI
FIFTH RESPONDENT & DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 068006

HEARING DATES: 18/01/2007

SUBMISSIONS CLOSED: 18 January 2007

DATE OF DECISION:
6 February 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Rees N - Judicial Member; Green J - Non Judicial Member

CATCHWORDS: Guardianship order - making - Opportunity to be heard - Procedural fairness

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 2005/3537

DATE OF DECISION UNDER APPEAL: 02/01/2006

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Ansell v Wells (1982) 43 ALR 41
J v Lieschke (1987) 69 ALR 647
KA v Public Guardian & Ors [2004] NSWADTAP 25
Kioa v West (1985) 159 CLR 550
Mahon v Air New Zealand Ltd [1984] AC 808
Moore v Guardianship and Administration Board & Another [1990] VR 902
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
The Grand Hotel v Development Assessment Commission [1998] SASC 7018

REPRESENTATION:
APPELLANT
V Roberts, agent
FIRST RESPONDENT, SECOND & THIRD RESPONDENTS
No appearance
FOURTH RESPONDENT
L Critchley, solicitor
FIFTH RESPONDENT & DECISION MAKER
E Cho, legal officer
COUNSEL ASSISTING THE TRIBUNAL
A Johnson, solicitor

ORDERS: 1. The limited guardianship order made by the Guardianship Tribunal in relation to WI on 1 February 2006 is set aside.; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence.

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

Guardianship Act

Protected Estates Act

Guardianship Act

Protected Estates Act

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

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…

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.

Keep reading for free

Create a free CaseChat account to read WH v Public Guardian & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2007] NSWADTAP 8
Decision Date: 6 February 2007

CaseChat Overview and Summary

In the matter of WH v Public Guardian & Ors, the court was asked to consider the legality of a guardianship order made by the Guardianship Tribunal concerning WI on 1 February 2006. The applicant, WH, sought to have the guardianship order set aside on the grounds that procedural fairness was not observed during the Tribunal's decision-making process. Specifically, WH argued that they were not given an adequate opportunity to be heard, which is a fundamental principle in administrative law. The court was required to determine whether the Guardianship Tribunal's decision to grant the guardianship order was legally sound and if procedural fairness was upheld.

The court examined the legal principles underpinning the Guardianship and Administration Act 2014, focusing on the necessity of procedural fairness in the decision-making process. It considered whether the applicant had been given a fair opportunity to present their case and respond to the issues raised by the Public Guardian. The court reviewed the evidence and submissions presented to the Guardianship Tribunal, assessing whether the process adhered to the principles of natural justice and fairness. The court found that the Guardianship Tribunal did not provide the applicant with a proper opportunity to be heard, thereby breaching the principles of procedural fairness.

Consequently, the court set aside the limited guardianship order made by the Guardianship Tribunal. The matter was remitted back to the Guardianship Tribunal to be heard anew, with the opportunity for further evidence to be presented. The court's decision was guided by the statutory provision of section 126 of the Administrative Decisions Tribunal Act 1997, which applies to decisions that require a fresh hearing. The orders of the court mandated that the Guardianship Tribunal ensure procedural fairness in its future deliberations, providing the applicant with a fair chance to be heard.

Orders

Orders of the court

1. The limited guardianship order made by the Guardianship Tribunal in relation to WI on 1 February 2006 is set aside.; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence. 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:	WH v Public Guardian & Ors [2007] NSWADTAP 8
PARTIES:	APPELLANT WH FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Lorraine Macindoe FOURTH RESPONDENT WI FIFTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068006
HEARING DATES:	18/01/2007
SUBMISSIONS CLOSED:	18 January 2007
DATE OF DECISION:	6 February 2007
BEFORE:	Hennessy N - Magistrate (Deputy President); Rees N - Judicial Member; Green J - Non Judicial Member
CATCHWORDS:	Guardianship order - making - Opportunity to be heard - Procedural fairness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	2005/3537
DATE OF DECISION UNDER APPEAL:	02/01/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Ansell v Wells (1982) 43 ALR 41 J v Lieschke (1987) 69 ALR 647 KA v Public Guardian & Ors [2004] NSWADTAP 25 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand Ltd [1984] AC 808 Moore v Guardianship and Administration Board & Another [1990] VR 902 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 R v London Borough of Wandsworth; Ex parte P [1989] 1 FLR 387 Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 The Grand Hotel v Development Assessment Commission [1998] SASC 7018
REPRESENTATION:	APPELLANT V Roberts, agent FIRST RESPONDENT, SECOND & THIRD RESPONDENTS No appearance FOURTH RESPONDENT L Critchley, solicitor FIFTH RESPONDENT & DECISION MAKER E Cho, legal officer COUNSEL ASSISTING THE TRIBUNAL A Johnson, solicitor
ORDERS:	1. The limited guardianship order made by the Guardianship Tribunal in relation to WI on 1 February 2006 is set aside.; 2. The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence.