PV v Public Guardian [2009] NSWADTAP 68

PV v Public Guardian [2009] NSWADTAP 68

The Guardianship Tribunal breached procedural fairness because the Acting Nursing Unit Manager's letter and attachments contained credible, relevant and significant adverse material about PV, and PV was not given a copy of that material before or at the hearing or a reasonable time to read, understand, question and respond to it. Reading the three-page critical letter aloud and giving an immediate opportunity to ask questions was not reasonable in the circumstances. The decision therefore had to be set aside and remitted for re-determination.

Jurisdiction
Australia
Judgment Date
25 November 2009
Procedural Posture
External Appeal From Review of a Guardianship Order / Appeal Panel Decision
Outcome
Appeal allowed; decision set aside and matter remitted to the Guardianship Tribunal for re-determination.
Legal Topics
['procedural Fairness' 'reasonable Opportunity to Be Heard' 'guardianship Order Review' 'substitute Decision Making' 'medical and Dental Consent']
['guardianship Law' 'administrative Law'] ['procedural Fairness' 'reasonable Opportunity to Be Heard' 'guardianship Order Review' 'substitute Decision Making' 'medical and Dental Consent']

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Procedural Posture

External Appeal From Review of a Guardianship Order / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Guardianship Tribunal denied PV procedural fairness by failing to provide adverse material before or at the hearing and by failing to give him a reasonable opportunity to respond.' "Whether the Guardianship Tribunal made a mistake of fact about the qualification to the Public Guardian's accommodation function." "Whether the Guardianship Tribunal failed to consider Dr Joseph's letter and PV's letter of complaint." 'Whether the Guardianship Tribunal erred by failing to refer to the principles in s 4 of the Guardianship Act 1987.' 'Whether the Guardianship Tribunal erred by failing to apply s 14(2) of the Guardianship Act 1987.' 'Whether the Guardianship Tribunal erred by relying on statements PV said were untrue.']

Ratio Decidendi

The Guardianship Tribunal breached procedural fairness because the Acting Nursing Unit Manager's letter and attachments contained credible, relevant and significant adverse material about PV, and PV was not given a copy of that material before or at the hearing or a reasonable time to read, understand, question and respond to it. Reading the three-page critical letter aloud and giving an immediate opportunity to ask questions was not reasonable in the circumstances. The decision therefore had to be set aside and remitted for re-determination.

Court Disposition

Appeal allowed; decision set aside and matter remitted to the Guardianship Tribunal for re-determination.

Orders

  • ['The decision of the Guardianship Tribunal dated 12 June 2009 in relation to PW is set aside.' 'The matter is remitted to the Guardianship Tribunal to re-determine the application.' 'The decision does not come into effect for 28 days after the date of these reasons.']