DYH v Public Guardian [2019] NSWCATAD 211

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYH v Public Guardian [2019] NSWCATAD 211 Hearing dates: 4 October 2019 Date of orders: 14 October 2019 Decision date: 14 October 2019 Jurisdiction: Administrative and Equal Opportunity Division Before: Emeritus Prof GD Walker, Senior Member Decision: 1. Summons to produce documents set aside;

2. Application dismissed for lack of jurisdiction. Catchwords: GUARDIANSHIP -- jurisdiction – whether reviewable decision – application to set aside summons to produce documents. Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Guardianship Act 1987 (NSW). Cases Cited: Karmez v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 149, Knight v Department of Justice [2011] VCAT 1708; Moonee Valley CC v Top Cut Industries Pty Ltd 2010] VCAT 401; Re Boulton; ex parte Construction Forestry Engineering and Mining Union (1998) 73 ALJR 129; Seachange Management Pty Ltd v Bevnol Construction and Developments Pty Ltd [2010] VCAT 269. Category: Principal judgment Parties: DYH (Applicant) Public Guardian (Respondent) Representation: Applicant (Self-represented) Respondent represented by responsible officers. File Number(s): 2019/00216786

reasons for decision 1. The applicant, for the purposes of these proceedings known as DYH, applied to this tribunal on 23 July 2019 for merits review in respect of certain exchanges she has had with the Public Guardian of New South Wales. This is one of a number of applications that the applicant has made in respect of her elderly mother's affairs. 2. On 29 May 2019, this tribunal had made an order appointing the Public Guardian as guardian for the applicant's mother (who for reasons of clarity and convenience will be referred to as Polyxeni). The order, expressed to be for a period of 12 months, gave the guardian custody of the represented person (Polyxeni) to the extent necessary to carry out the guardian's designated functions, which were access, accommodation, health care, medical consents, services and legal services. 3. In the section of the review application form asking the applicant to identify the decision under review, the applicant gave the date 18 July 2019 and attached a letter addressed to her from the Public Guardian bearing that date and signed by Mr Theo Hastings, Assistant Public Guardian Operations. The letter was a reply to a complaint made by the applicant and lodged with the Public Guardian on 24 June 2019. The applicant had complained that the officer handling the matter, Mr Ben Sutton, had taken a one-sided attitude to the matter, had given false information on a number of occasions, had not returned her calls and had been rude to her and she had been denied access to the house where her mother, the person represented, was living. 4. The letter concluded that the officer responsible had acted in accordance with the Guardianship Act and standards. A guardian was appointed as a decision-maker only and is required to put the interests of the represented person first. The letter noted that the applicant had been told that the Public Guardian was not making an access decision at that time, but that did not mean that no access decisions will be made while the Public Guardian was appointed. He invited the applicant to continue to communicate with the officer responsible and submit an access proposal for consideration. 5. On 23 July 2019, the applicant applied for an order staying the Public Guardian's access ruling. That application was dismissed by the Tribunal on 30 July 2019. A number of directions hearings were also held. In orders made following a directions hearing on 3 September 2019, Pearson PM noted that the material supplied with the application for administrative review did not clearly identify whether a decision, and if so, what decision, had been made by the Public Guardian in the exercise of the functions conferred by the guardianship order. The Public Guardian's position was that no administratively reviewable decision had been made. 6. On 6 September 2019, the applicant obtained the issuance of a summons addressed to the respondent seeking inter alia its file on Polyxeni and all material and file notes relating to her administration from 29 May 2019. The respondent, for its part, sought directions from this Tribunal on what were its responsibilities in relation to responding to the summons, as the Public Guardian does not readily allow persons to view client files for confidentiality and privacy reasons, especially when there was a level of family conflict involved, as in this case. 7. The matter was listed for hearing on 4 October 2019, on the basis that issues relating to jurisdiction and the respondent's obligations under the summons required determination. Both parties appeared by telephone.