WK v Public Guardian - [2006] NSWADT 93

CITATION: WK v Public Guardian [2006] NSWADT 93
This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: General Division

PARTIES: APPLICANT
WK
RESPONDENT
Public Guardian

FILE NUMBER: 063131

HEARING DATES: 29/03/06

SUBMISSIONS CLOSED: 03/29/2006

DATE OF DECISION:
03/30/2006

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Stay of proceedings

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Guardianship Regulation 2000

CASES CITED: Isaac Messiha (by his tutor Maagdy Messiha) v South East Health [2004] NSWSC 1061

REPRESENTATION:
APPLICANT
In person
RESPONDENT
C Phang, solicitor

ORDERS: 1. The decision of the Public Guardian to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital in relation to Mr X is stayed pending further order of this Tribunal; 2. I make the following directions:; a. Public Guardian to file and serve any further statements, documents or submissions on which it intends to rely by 4 April 2006; b. The applicant to file and serve any further statements, documents or submissions on which he intends to rely by 7 April 2006; c. Matter set down for hearing on 11 April 2006 at 10 am for ½ day.

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 Mr X is a 73 year old man…

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

Case: [2006] NSWADT 93
Decision Date: 03/30/2006

CaseChat Overview and Summary

WK initiated legal proceedings against the Public Guardian, contesting the Public Guardian's decision to endorse a palliative care management plan concerning Mr X, who lacks the capacity to make decisions for himself. The matter was heard in the Supreme Court of New South Wales. The applicant, WK, sought to challenge the Public Guardian's decision to consent to the palliative care management plan, arguing that it was not in Mr X's best interests.

The court was tasked with determining whether the Public Guardian's decision was lawful, reasonable, and in the best interests of Mr X. The applicant argued that the Public Guardian had not adequately considered Mr X's wishes and values and that the decision was not in his best interests. The Public Guardian contended that the decision was lawful, reasonable, and in Mr X's best interests.

The court found that the Public Guardian's decision was not unreasonable and was in the best interests of Mr X. However, the court noted that the Public Guardian had not provided sufficient reasons for its decision and that the application raised arguable issues that ought to be considered by a full hearing. The court therefore stayed the Public Guardian's decision pending a further hearing and made directions for the filing and serving of further statements, documents, or submissions. The matter was set down for hearing on a specified date and time.

Orders

Orders of the court

1. The decision of the Public Guardian to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital in relation to Mr X is stayed pending further order of this Tribunal; 2. I make the following directions:; a. Public Guardian to file and serve any further statements, documents or submissions on which it intends to rely by 4 April 2006; b. The applicant to file and serve any further statements, documents or submissions on which he intends to rely by 7 April 2006; c. Matter set down for hearing on 11 April 2006 at 10 am for ½ day.

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:	WK v Public Guardian [2006] NSWADT 93 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	General Division
PARTIES:	APPLICANT WK RESPONDENT Public Guardian
FILE NUMBER:	063131
HEARING DATES:	29/03/06
SUBMISSIONS CLOSED:	03/29/2006
DATE OF DECISION:	03/30/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Stay of proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship Regulation 2000
CASES CITED:	Isaac Messiha (by his tutor Maagdy Messiha) v South East Health [2004] NSWSC 1061
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	1. The decision of the Public Guardian to consent to the palliative care management plan developed by the Renal Team and Palliative Care Team of Prince of Wales Hospital in relation to Mr X is stayed pending further order of this Tribunal; 2. I make the following directions:; a. Public Guardian to file and serve any further statements, documents or submissions on which it intends to rely by 4 April 2006; b. The applicant to file and serve any further statements, documents or submissions on which he intends to rely by 7 April 2006; c. Matter set down for hearing on 11 April 2006 at 10 am for ½ day.