ZPH v ZPI [2020] NSWCATAP 201

ZPH v ZPI [2020] NSWCATAP 201

The Tribunal did not err in law by treating the review of the enduring guardianship appointment as an application for a guardianship order without first determining whether the First EGA had been validly revoked, because s 6K(3) empowered it to do so once satisfied that course was in the Subject Person's best interests. The Tribunal afforded procedural fairness by explaining the proposed course and inviting submissions. The findings that the Appellant was not able to exercise guardianship functions and that the Respondent was able to exercise the relevant functions were open on the evidence, and no sound basis for leave to appeal was established.

Jurisdiction
Australia
Judgment Date
30 September 2020
Procedural Posture
Internal Appeal From a Guardianship Division Decision Reviewing Enduring Guardianship Appointments and Making a Guardianship Order / Appeal Panel Decision
Outcome
The appeal is dismissed and leave to appeal is refused.
Legal Topics
['review of Enduring Guardianship Appointment' 'guardianship Order' 'procedural Fairness' 'leave to Appeal' 'questions of Law' 'appointment of Guardian']
['guardianship' 'administrative Law' 'civil Procedure'] ['review of Enduring Guardianship Appointment' 'guardianship Order' 'procedural Fairness' 'leave to Appeal' 'questions of Law' 'appointment of Guardian']

Case Brief

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Procedural Posture

Internal Appeal From a Guardianship Division Decision Reviewing Enduring Guardianship Appointments and Making a Guardianship Order / Appeal Panel Decision

Legal Issues

  1. 1 ["Whether, in exercising its power to review the First EGA, the Tribunal was obliged to determine whether the Appellant's appointment as enduring guardian had been validly revoked." 'Whether the Tribunal failed to afford the Appellant procedural fairness by proceeding to make a guardianship order.' 'Whether the finding that the Appellant was not able to exercise the functions conferred by the guardianship order was against the weight of evidence or not fair and equitable.' 'Whether the finding that the Respondent was able to exercise the functions conferred by the proposed guardianship order was against the weight of evidence or not fair and equitable.']

Ratio Decidendi

The Tribunal did not err in law by treating the review of the enduring guardianship appointment as an application for a guardianship order without first determining whether the First EGA had been validly revoked, because s 6K(3) empowered it to do so once satisfied that course was in the Subject Person's best interests. The Tribunal afforded procedural fairness by explaining the proposed course and inviting submissions. The findings that the Appellant was not able to exercise guardianship functions and that the Respondent was able to exercise the relevant functions were open on the evidence, and no sound basis for leave to appeal was established.

Court Disposition

The appeal is dismissed and leave to appeal is refused.

Orders

  • ['The appeal is dismissed.' 'Leave to appeal is refused.']