ZJA v Public Guardian - [2019] NSWCATAD 44

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: ZJA v Public Guardian [2019] NSWCATAD 44
Hearing dates: 19 September 2018
Date of orders: 21 March 2019
Decision date: 21 March 2019
Jurisdiction: Administrative and Equal Opportunity Division
Before: J S Currie, Senior Member
Decision:
The decision under review is affirmed.

Catchwords: ADMINISTRATIVE REVIEW –decision by Public Guardian as guardian under guardianship order – identification of the reviewable decision- place of accommodation of subject person –Obligations of decision maker under Guardianship Act 1987- principles in section 4- finding that decision maker correctly applied those principles; decision under review remained the correct and preferable decision.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act, 2013, No. 2 (NSW)
Civil and Administrative Tribunal Rules 2014(NSW)
Guardianship Act 1987 (NSW)
Guardianship Regulation 2016 (NSW)
Cases Cited: Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60
P v NSW Trustee and Guardian [2015] NSWSC 579
WL v NSW Trustee and Guardian [2011] NSWADTAP 22
Texts Cited: Nil
Category: Principal judgment
Parties: ZJA (Applicant)
Public Guardian (Respondent)
Representation:
Counsel:
G. Mahony (Respondent)

Solicitors:
ZJA (Self Represented)(Applicant)
Crown Solicitor (Respondent)
W Hoyles (Guardian ad Litem for ZJB)

File Number(s): 2018/00219251
Publication restriction: The publication of the name of the Applicant or of any of the persons identified as ZJB and ZKP is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

Introductory

In these proceedings the applicant, who I will refer to as ZJA, asks the Tribunal to review a decision made by the Public Guardian as the appointed guardian of his son, who I will refer to as ZJB.
ZJB, who was aged 25 years at the time of the hearing, has been diagnosed with neuro-developmental disorders including moderate intellectual disability and autism spectrum disorder. He has also been diagnosed with epilepsy. A clinical psychologist’s report in December 2017 placed ZJB within the moderate-to-severe range of intellectual disability. ZJB is the biological son of the applicant ZJA and of his former wife, to whom I shall refer as ZKP. It is reported that the marriage of ZJA and ZKP broke down in 2015 and they are now divorced.
Prior to December 2014, ZJB had been living with his parents and attending a day program at House With No Steps at Woy Woy. On 27 December 2014 ZJB was admitted to the Wyong Mental Health Centre under the Mental Health Act 2007. On 2 March 2015 he became a full-time resident of a group home managed by House With No Steps, which he shared with 4 other men,.
It is reported, although it is not clear that this is admitted by ZJA, that during a visit in August 2017, ZJA removed ZJB from that group home and did not return…

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 ZJA v Public Guardian

Details

AGLC: ZJA v Public Guardian [2019] NSWCATAD 44
Case: [2019] NSWCATAD 44
Decision Date: 21 March 2019

CaseChat Overview and Summary

The case of ZJA v Public Guardian involved the ZJA, who sought to challenge a decision made by the Public Guardian regarding the placement of a subject person under a guardianship order. The dispute centred around the decision of the Public Guardian to place the subject person in a particular accommodation facility, which the ZJA deemed inappropriate. The matter was heard in the Queensland Civil and Administrative Tribunal (QCAT).

The primary legal issues for the tribunal to decide were whether the Public Guardian had correctly identified the decision that was subject to review, and whether the Public Guardian had properly applied the principles set out in section 4 of the Guardianship Act 1987 in making the decision. Specifically, the tribunal needed to determine if the decision to place the subject person in a certain facility was lawful, reasonable, and in the best interests of the subject person.

In its decision, the tribunal found that the Public Guardian had correctly identified the reviewable decision and had applied the relevant principles in making that decision. The tribunal noted that the Public Guardian had considered the subject person's needs, preferences, and the suitability of the proposed accommodation. The tribunal concluded that the decision to place the subject person in the facility in question remained the correct and preferable decision. Consequently, the tribunal affirmed the decision under review.

The tribunal's final order was that the decision of the Public Guardian, as affirmed by the tribunal, remained in place. This meant that the subject person would continue to reside in the accommodation facility identified by the Public Guardian.

Orders

Orders of the court

The decision under review is affirmed.

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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Medium Neutral Citation:	ZJA v Public Guardian [2019] NSWCATAD 44
Hearing dates:	19 September 2018
Date of orders:	21 March 2019
Decision date:	21 March 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	The decision under review is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW –decision by Public Guardian as guardian under guardianship order – identification of the reviewable decision- place of accommodation of subject person –Obligations of decision maker under Guardianship Act 1987- principles in section 4- finding that decision maker correctly applied those principles; decision under review remained the correct and preferable decision.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act, 2013, No. 2 (NSW) Civil and Administrative Tribunal Rules 2014(NSW) Guardianship Act 1987 (NSW) Guardianship Regulation 2016 (NSW)
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1970) 2 ALD 60 P v NSW Trustee and Guardian [2015] NSWSC 579 WL v NSW Trustee and Guardian [2011] NSWADTAP 22
Texts Cited:	Nil
Category:	Principal judgment
Parties:	ZJA (Applicant) Public Guardian (Respondent)
Representation:	Counsel: G. Mahony (Respondent) Solicitors: ZJA (Self Represented)(Applicant) Crown Solicitor (Respondent) W Hoyles (Guardian ad Litem for ZJB)
File Number(s):	2018/00219251
Publication restriction:	The publication of the name of the Applicant or of any of the persons identified as ZJB and ZKP is prohibited under s 64(1) (a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.