DG v Public Guardian and ors [2008] NSWADTAP 58

DG v Public Guardian and ors [2008] NSWADTAP 58

The appeal was allowed because the Guardianship Tribunal erred in finding that HZ was not DG's person responsible. HZ had provided domestic services and support to DG without remuneration over an extended period and therefore had care of DG for the purposes of the Guardianship Act 1987. That error affected the Tribunal's consideration of whether services could practicably be provided to DG without a guardianship order, particularly because the initiating concern included DG's need for medical investigations and consent. The error involved taking account of an irrelevant consideration or failing to take account of a relevant consideration and warranted setting aside and remittal.

Jurisdiction
Australia
Judgment Date
03 September 2008
Procedural Posture
External Appeal From a Guardianship Tribunal Decision Reviewing a Guardianship Order / Appeal Panel Decision
Outcome
Appeal allowed; decision and order of the Guardianship Tribunal set aside; matter remitted to the Guardianship Tribunal to be heard and decided again.
Legal Topics
['guardianship Order' 'review of Guardianship Order' 'person Responsible for Medical or Dental Consent' 'standing to Apply for Guardianship Order' 'procedural Fairness' 'relevant and Irrelevant Considerations' 'remittal']
['guardianship Law' 'administrative Law'] ['guardianship Order' 'review of Guardianship Order' 'person Responsible for Medical or Dental Consent' 'standing to Apply for Guardianship Order' 'procedural Fairness' 'relevant and Irrelevant Considerations' 'remittal']

Case Brief

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Procedural Posture

External Appeal From a Guardianship Tribunal Decision Reviewing a Guardianship Order / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether Ms Tonkin had standing under section 9(1)(d) of the Guardianship Act 1987 to bring the initiating application.' 'Whether HZ was joined as a party under sections 3D and 3F of the Guardianship Act 1987.' "Whether the Tribunal misapplied sections 4 and 14(2) of the Guardianship Act 1987 by failing to have proper regard to DG's and HZ's views and to the practicability of services without a guardianship order." "Whether the Tribunal erred by finding that HZ was not DG's person responsible under section 33A(4) of the Guardianship Act 1987." 'What orders should be made under section 118C(1) of the Administrative Decisions Tribunal Act 1997.']

Ratio Decidendi

The appeal was allowed because the Guardianship Tribunal erred in finding that HZ was not DG's person responsible. HZ had provided domestic services and support to DG without remuneration over an extended period and therefore had care of DG for the purposes of the Guardianship Act 1987. That error affected the Tribunal's consideration of whether services could practicably be provided to DG without a guardianship order, particularly because the initiating concern included DG's need for medical investigations and consent. The error involved taking account of an irrelevant consideration or failing to take account of a relevant consideration and warranted setting aside and remittal.

Court Disposition

Appeal allowed; decision and order of the Guardianship Tribunal set aside; matter remitted to the Guardianship Tribunal to be heard and decided again.

Orders

  • ['Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007' 'The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred...