ZFV & anor v ZFW & ors [2018] NSWCATAP 44

ZFV & anor v ZFW & ors [2018] NSWCATAP 44

The subject person was a party to the guardianship proceedings and was entitled to notice of the hearing and the substance of the application. She was not served with the hearing notice or application and the Tribunal's reasons did not show that it considered whether the evidence justified proceeding without her views. Even if urgent risk justified proceeding, it did not justify making a 12-month guardianship order when temporary or shorter reviewable orders were available. Because the Appeal Panel could not be satisfied that the denial of procedural fairness made no difference to the outcome, the appeal was allowed and the matter remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
12 February 2018
Procedural Posture
Internal Appeal From a Guardianship Division Decision Making a Guardianship Order / Appeal Panel Decision
Outcome
Appeal allowed; decision remitted to the Guardianship Division of NCAT for reconsideration.
Legal Topics
['procedural Fairness' 'natural Justice' 'hearing Rule' 'notice of Hearing' 'guardianship Orders' 'remittal']
['administrative Law' 'guardianship' 'human Rights'] ['procedural Fairness' 'natural Justice' 'hearing Rule' 'notice of Hearing' 'guardianship Orders' 'remittal']

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Procedural Posture

Internal Appeal From a Guardianship Division Decision Making a Guardianship Order / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal denied procedural fairness to the subject person by determining the guardianship application without giving her notice of the hearing or an opportunity to participate.' "Whether any urgency or risk to the subject person's welfare justified proceeding without notice and making a 12-month guardianship order." 'Whether the denial of procedural fairness required the appeal to be allowed and the application remitted.']

Ratio Decidendi

The subject person was a party to the guardianship proceedings and was entitled to notice of the hearing and the substance of the application. She was not served with the hearing notice or application and the Tribunal's reasons did not show that it considered whether the evidence justified proceeding without her views. Even if urgent risk justified proceeding, it did not justify making a 12-month guardianship order when temporary or shorter reviewable orders were available. Because the Appeal Panel could not be satisfied that the denial of procedural fairness made no difference to the outcome, the appeal was allowed and the matter remitted for reconsideration.

Court Disposition

Appeal allowed; decision remitted to the Guardianship Division of NCAT for reconsideration.

Orders

  • ['The appeal against the decision made by the Tribunal on 19 June 2017 is allowed.' 'The decision under appeal is remitted to the Guardianship Division of NCAT for reconsideration.' 'The Appeal Panel orders under s 45(4)(c) of the Civil & Administrative Tribunal Act 2013 (NSW), that ZFU be separately represented in...