UP v NSW Trustee and Guardian [2010] NSWADTAP 69

UP v NSW Trustee and Guardian [2010] NSWADTAP 69

The Appeal Panel found that the Guardianship Tribunal erred in law by not taking into account the views of UQ as recorded in the Investigator's Report and/or by not seeking his views by telephone when he was available, and by not providing the parties (especially UP) with a copy of the Investigator's Report such that she could respond. This was contrary to the statutory requirements of sections 4 and 14(2) of the Guardianship Act and the common law requirements of procedural fairness. Accordingly, the decision was set aside and the matter remitted for rehearing.

Jurisdiction
Australia
Judgment Date
29 October 2010
Procedural Posture
External Appeal / Appeal Panel Decision
Outcome
Guardianship Tribunal's orders set aside and matter remitted for rehearing.
Legal Topics
['procedural Fairness' 'guardianship Order' 'notice Requirements' 'participation of Subject Person' 'preservation of Family Relationships' 'appointment of Public Guardian']
['administrative Law' 'guardianship'] ['procedural Fairness' 'guardianship Order' 'notice Requirements' 'participation of Subject Person' 'preservation of Family Relationships' 'appointment of Public Guardian']

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Procedural Posture

External Appeal / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Guardianship Tribunal denied procedural fairness in giving inadequate notice of hearing to parties' 'Whether failure to provide all relevant documents to parties amounted to a breach of procedural fairness' 'Whether the Tribunal erred by not taking into account the views of the person subject to the guardianship order' "Whether the Tribunal's process for appointing a guardian was proper, including consideration of family members" "Whether the Tribunal's informal hearing procedures caused or contributed to procedural unfairness" 'Whether the Tribunal gave proper and paramount consideration to the welfare and interests of the subject person as required by statute' 'Whether family conflict justified appointment of the Public Guardian under s 15(3) of the Guardianship Act']

Ratio Decidendi

The Appeal Panel found that the Guardianship Tribunal erred in law by not taking into account the views of UQ as recorded in the Investigator's Report and/or by not seeking his views by telephone when he was available, and by not providing the parties (especially UP) with a copy of the Investigator's Report such that she could respond. This was contrary to the statutory requirements of sections 4 and 14(2) of the Guardianship Act and the common law requirements of procedural fairness. Accordingly, the decision was set aside and the matter remitted for rehearing.

Court Disposition

Guardianship Tribunal's orders set aside and matter remitted for rehearing.

Orders

  • ["The Guardianship Tribunal's orders in relation to UQ dated 20 April 2010 are set aside." 'The matter is remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further relevant evidence.' 'This decision takes effect on the date the Guardianship Tribunal decides the matter again.']