YKX v NSW Ageing and Disability Commissioner [2024] NSWCATAP 248

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YKX v NSW Ageing and Disability Commissioner [2024] NSWCATAP 248 Hearing dates: 25 July 2024 Written submissions 7, 16 and 22 August 2024 Date of orders: 6 December 2024 Decision date: 06 December 2024 Jurisdiction: Appeal Panel Before: A Britton, Deputy President J Kearney, Senior Member (Legal) F Given, General Member (Community) Decision: (1) Leave to appeal is refused. (2) The appeal is dismissed. Catchwords: PROCEDURAL FAIRNESS — hearing rule — Civil and Administrative Tribunal Act 2013 (NSW), s 38(5)(c) — whether Tribunal gave appellant reasonable period of notice of hearing to determine application for guardianship order — considerations relevant to assessment of whether period of notice of hearing was reasonable PROCEDURAL FAIRNESS — hearing rule — whether by not offering an adjournment and proceeding to determine application for guardianship order in her absence the Tribunal failed to afford the appellant procedural fairness APPEALS — principles governing exercise of discretion to grant leave to appeal under s 80(2)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) — whether findings made by Tribunal were against the weight of evidence Legislation Cited: Ageing and Disability Commissioner Act 2019 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), ss 36(1)-(2), 38(2), 38(5)(c), 50, 80(2)(b); Sch 6, cl 5(1), 6A Guardianship Act 1987 (NSW), ss 4, 4(a), 4(g), 10(1A), 14(2)(a)(iii), 25(2)(b) Cases Cited: Bale v Mills 81 NSWLR 498; [2011] NSWCA 226; BPY v BZQ [2015] NSWCATAP 33 C v W [2015] NSWSC 1774 Collins v Urban [2014] NSWCATAP 17 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 Ferella & Anor v Chief Commissioner of State Revenue [2014] NSWCA 378 Kioa v West (1985) 159 CLR 550 at 612; [1985] HCA 81 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90; [2004] HCA 48 Schwartz Family Co Pty Ltd v Capitol Carpets Pty Ltd [2017] NSWCA 223 ZII v ZIJ [2018] NSWCATAP 255 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) Category: Principal judgment Parties: YKX (Appellant) NSW Ageing and Disability Commissioner (First Respondent) YKY (Second Respondent) YKZ (Third Respondent) YJA (Fourth Respondent) NSW Public Guardian (Fifth Respondent) Representation: Solicitors: Hal Ginges and Company (Appellant) Ms C Cox (Director) (First Respondent) Second Respondent (No appearance) Third Respondent (No appearance) Fourth Respondent (Self-represented) M Munroe (Public Guardian) (Fifth Respondent) File Number(s): 2024/00152665 Publication restriction: Under s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 26 March 2024 Before: N Jones, Senior Member (Legal) L Houlahan, Senior Member (Professional) K J McIvor, General Member (Community) File Number(s): 2008/00466264