HH v HI and Protective Commissioner [2009] NSWADTAP 41

HH v HI and Protective Commissioner [2009] NSWADTAP 41

The Guardianship Tribunal breached procedural fairness by failing to properly disclose adverse material to HH and by taking evidence in her absence without justification; although the Tribunal has power to make a guardianship order regarding religious observance if necessary for welfare, whether such an order should be made depends on rehearing and further findings of fact. There was no error in the Tribunal’s decision regarding decisions about medical and dental treatment, as HH, being a close friend, is a 'person responsible' under the Guardianship Act.

Parties
Appellant: HH; Respondent: HI; Respondent: Protective Commissioner
Jurisdiction
Australia
Judgment Date
30 June 2009
Procedural Posture
Appeal / Appeal Panel Decision on Appeal of Review of Guardianship Order
Outcome
Appeal allowed in part: procedural fairness ground upheld; leave to appeal against merits of decision refused.
Legal Topics
Procedural Fairness, Guardianship Orders, Religious Observance, Decision Making for Persons With Disabilities
Guardianship Administrative Law Procedural Fairness Guardianship Orders Religious Observance Decision Making for Persons With Disabilities

Case Brief

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Parties

HH

Appellant

HI

Respondent

Protective Commissioner

Respondent

Procedural Posture

Appeal / Appeal Panel Decision on Appeal of Review of Guardianship Order

Legal Issues

  1. 1 Did the Tribunal breach procedural fairness by failing to provide documents and/or failing to communicate the substance of material to HH?
  2. 2 Did the Tribunal breach procedural fairness by hearing evidence in the absence of HH?
  3. 3 Did the Tribunal err in deciding not to make a guardianship order relating to religious observance?

Ratio Decidendi

The Guardianship Tribunal breached procedural fairness by failing to properly disclose adverse material to HH and by taking evidence in her absence without justification; although the Tribunal has power to make a guardianship order regarding religious observance if necessary for welfare, whether such an order should be made depends on rehearing and further findings of fact. There was no error in the Tribunal’s decision regarding decisions about medical and dental treatment, as HH, being a close friend, is a 'person responsible' under the Guardianship Act.

Court Disposition

Appeal allowed in part: procedural fairness ground upheld; leave to appeal against merits of decision refused.

Orders

  • Leave to appeal against the merits of the Guardianship Tribunal's decision is refused
  • The matter is remitted to be heard and decided again with the hearing of further evidence.