ZVS v ZVT [2022] NSWCATAP 71

ZVS v ZVT [2022] NSWCATAP 71

The Tribunal erred in law by denying the appellant procedural fairness, specifically by impeding access to her McKenzie Friend during the hearing, thus depriving her of necessary legal advice and support contrary to established principles. This error justified rehearing by a differently constituted Guardianship Division.

Parties
Appellant: ZVS; First Respondent: ZVT; Second Respondent: ZVV; Third Respondent: ZVU; Fourth Respondent: NSW Trustee & Guardian; Fifth Respondent: Public Guardian
Jurisdiction
Australia
Judgment Date
16 March 2022
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed; case remitted for rehearing by differently constituted Tribunal; previous orders continue in force.
Legal Topics
Procedural Fairness, Enduring Guardianship, Enduring Power of Attorney, Role of Mc Kenzie Friend, Representation Rights, Appeals
Guardianship Civil Procedure Procedural Fairness Enduring Guardianship Enduring Power of Attorney Role of Mc Kenzie Friend Representation Rights Appeals

Case Brief

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Parties

ZVS

Appellant

ZVT

First Respondent

ZVV

Second Respondent

ZVU

Third Respondent

NSW Trustee & Guardian

Fourth Respondent

Public Guardian

Fifth Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the Tribunal below failed to afford procedural fairness to the appellant
  2. 2 Whether the Tribunal's decision to separate appellant from her McKenzie Friend constituted an error of law
  3. 3 Whether insufficient time was provided for the appellant to present her case

Ratio Decidendi

The Tribunal erred in law by denying the appellant procedural fairness, specifically by impeding access to her McKenzie Friend during the hearing, thus depriving her of necessary legal advice and support contrary to established principles. This error justified rehearing by a differently constituted Guardianship Division.

Court Disposition

Appeal allowed; case remitted for rehearing by differently constituted Tribunal; previous orders continue in force.

Orders

  • Appeal allowed
  • The whole of the case, comprising the First Respondent's two applications to the Guardianship Division subject to appeal, are remitted to the Guardianship Division for re-hearing by a differently constituted Tribunal.