ZKF v ZKG [2019] NSWCATAP 64

ZKF v ZKG [2019] NSWCATAP 64

The Tribunal misapplied s 17(1)(c) because it treated the appellant's firm commitment to his proposal and the absence of an independent assessment of that proposal as rendering him not "able" to exercise the accommodation function. The word "able" in s 17(1)(c) does not require a proposed guardian to provide a full independent assessment of what is in the subject person's best interests. The central question was whether the appellant was able to make the accommodation decision consistently with the statutory duty to give paramount consideration to his mother's interests. By interpolating an additional requirement and preferring independent decision-making by the Public Guardian, the...

Jurisdiction
Australia
Judgment Date
22 March 2019
Procedural Posture
Internal Appeal Against a Guardianship Division Decision Renewing a Guardianship Order and Re Appointing the Public Guardian / Appeal Panel Decision
Outcome
Appeal allowed; the s 17(1)(c) question remitted for reconsideration; decision to re-appoint the Public Guardian set aside with effect after reconsideration; separate representation ordered for ZHG in the remitted proceedings.
Legal Topics
['appointment of Guardian' 'renewal of Guardianship Order' 'public Guardian' 'meaning of "able to Exercise the Functions Conferred or Imposed by the Proposed Guardianship Order" in S 17(1)(c) of the Guardianship Act 1987 (nsw)' 'error of Law']
['guardianship Law' 'administrative Law'] ['appointment of Guardian' 'renewal of Guardianship Order' 'public Guardian' 'meaning of "able to Exercise the Functions Conferred or Imposed by the Proposed Guardianship Order" in S 17(1)(c) of the Guardianship Act 1987 (nsw)' 'error of Law']

Case Brief

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Procedural Posture

Internal Appeal Against a Guardianship Division Decision Renewing a Guardianship Order and Re Appointing the Public Guardian / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal misapplied s 17(1)(c) of the Guardianship Act 1987 (NSW) by finding that the appellant was not able to exercise the accommodation function.' "Whether the Tribunal impermissibly added a requirement that there be a full independent consideration of the appellant's proposal for his mother to return to England." 'How the appeal should be determined after the finding of error.']

Ratio Decidendi

The Tribunal misapplied s 17(1)(c) because it treated the appellant's firm commitment to his proposal and the absence of an independent assessment of that proposal as rendering him not "able" to exercise the accommodation function. The word "able" in s 17(1)(c) does not require a proposed guardian to provide a full independent assessment of what is in the subject person's best interests. The central question was whether the appellant was able to make the accommodation decision consistently with the statutory duty to give paramount consideration to his mother's interests. By interpolating an additional requirement and preferring independent decision-making by the Public Guardian, the...

Court Disposition

Appeal allowed; the s 17(1)(c) question remitted for reconsideration; decision to re-appoint the Public Guardian set aside with effect after reconsideration; separate representation ordered for ZHG in the remitted proceedings.

Orders

  • ['The appeal is allowed.' 'The question of whether the appellant satisfies s 17(1)(c) of the Guardianship Act 1987 (NSW) is remitted to the Tribunal for reconsideration in accordance with these reasons, on the basis of the evidence that was before the Tribunal at the hearing on 20 July 2018 and any fresh evidence,...