DXG v Public Guardian [2020] NSWCATAD 129

DXG v Public Guardian [2020] NSWCATAD 129

The Tribunal held that the issues on the dismissal application could be adequately determined on the papers. The Guardianship Act 1987 contemplates guardianship over living persons only; on DZO's death the Public Guardian no longer had custody of DZO or guardianship functions to exercise, so the access decision under review no longer had power or effect. The review had therefore become otiose, futile and lacking in substance, and the proceedings were misconceived within s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013.

Jurisdiction
Australia
Judgment Date
13 May 2020
Procedural Posture
Administrative Review Under S 80 a of the Guardianship Act 1987 of a Public Guardian Access Decision / Respondent's Dismissal Application Determined on the Papers
Outcome
Proceedings dismissed because they are misconceived.
Legal Topics
['review of Public Guardian Decision' 'access Decision' 'death of Subject Person' 'futility and Mootness' 'dismissal of Misconceived Proceedings' 'dispensing With Hearing']
['guardianship' 'administrative Law' 'civil Procedure'] ['review of Public Guardian Decision' 'access Decision' 'death of Subject Person' 'futility and Mootness' 'dismissal of Misconceived Proceedings' 'dispensing With Hearing']

Case Brief

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Procedural Posture

Administrative Review Under S 80 a of the Guardianship Act 1987 of a Public Guardian Access Decision / Respondent's Dismissal Application Determined on the Papers

Legal Issues

  1. 1 ['Whether the dismissal application could be determined without a hearing under s 50 (2) of the Civil and Administrative Tribunal Act 2013.' 'Whether the administrative review proceedings persisted or had utility after the death of DZO, the person under guardianship.' 'Whether the proceedings should be dismissed as misconceived under s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013.' "Whether the applicant's non-compliance with Tribunal orders supported dismissal under s 55 (1) (d) of the Civil and Administrative Tribunal Act 2013."]

Ratio Decidendi

The Tribunal held that the issues on the dismissal application could be adequately determined on the papers. The Guardianship Act 1987 contemplates guardianship over living persons only; on DZO's death the Public Guardian no longer had custody of DZO or guardianship functions to exercise, so the access decision under review no longer had power or effect. The review had therefore become otiose, futile and lacking in substance, and the proceedings were misconceived within s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013.

Court Disposition

Proceedings dismissed because they are misconceived.

Orders

  • ['Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with.' 'Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.']