DXG v Public Guardian [2020] NSWCATAD 8

DXG v Public Guardian [2020] NSWCATAD 8

The Tribunal refused the stay because, having regard to the relevant s 60 considerations, it was not satisfied that an order affecting the operation of the 6 December 2019 access decision was required or appropriate. Although the restricted hours caused distress to DXG and DZO and any successful review could not remedy that lost time, the safety and welfare of DZO were paramount. There was sufficient interlocutory evidence that issues concerning DXG's compliance with access hours and other access conditions, and their impact on the Nursing Home's ability to care for DZO and protect residents and staff, jeopardised DZO's health, safety and continued residence. The Nursing Home's own...

Jurisdiction
Australia
Judgment Date
08 January 2020
Procedural Posture
Application for Administrative Review of a Public Guardian Access Decision and Application for Stay Under S 60(2) of the Administrative Decisions Review Act 1997 / Interlocutory Order
Outcome
Stay application refused; administrative review application permitted to proceed despite no duly applied-for internal review.
Legal Topics
['stay of Administrative Decision' 'public Guardian Access Decision' 'administrative Review' 'internal Review Requirement' 'welfare and Interests of Person Under Guardianship']
['administrative Law' 'guardianship Law'] ['stay of Administrative Decision' 'public Guardian Access Decision' 'administrative Review' 'internal Review Requirement' 'welfare and Interests of Person Under Guardianship']

Case Brief

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Procedural Posture

Application for Administrative Review of a Public Guardian Access Decision and Application for Stay Under S 60(2) of the Administrative Decisions Review Act 1997 / Interlocutory Order

Legal Issues

  1. 1 ["Whether an order should be made under s 60(2) of the Administrative Decisions Review Act 1997 staying or otherwise affecting the operation of the Public Guardian's access decision made on 6 December 2019." 'Whether the administrative review application may proceed notwithstanding that the applicant had not duly applied for an internal review.']

Ratio Decidendi

The Tribunal refused the stay because, having regard to the relevant s 60 considerations, it was not satisfied that an order affecting the operation of the 6 December 2019 access decision was required or appropriate. Although the restricted hours caused distress to DXG and DZO and any successful review could not remedy that lost time, the safety and welfare of DZO were paramount. There was sufficient interlocutory evidence that issues concerning DXG's compliance with access hours and other access conditions, and their impact on the Nursing Home's ability to care for DZO and protect residents and staff, jeopardised DZO's health, safety and continued residence. The Nursing Home's own...

Court Disposition

Stay application refused; administrative review application permitted to proceed despite no duly applied-for internal review.

Orders

  • ['The application for an order under s 60(2) of the Administrative Decisions Review Act 1997 to stay the operation of the access decision made by the Public Guardian on 6 December 2019 is refused.' 'Pursuant to s55(4) of the Administrative Decisions Review Act 1997 the application for administrative review made on...