AAD v NSW Trustee and Guardian - [2013] NSWADTAP 40

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AAD v NSW Trustee and Guardian [2013] NSWADTAP 40
Hearing dates: 22 July 2013
Decision date: 21 August 2013
Before: Magistrate N Hennessy, Deputy President
Mr P Molony, Judicial Member
Ms A Wunsch, Non-Judicial Member
Decision:
The appeal is dismissed.

Catchwords: APPEAL - appeal against decision of Guardianship Tribunal confirming the appointment of the NSW Trustee as AAE's financial manager - whether Guardianship Tribunal should have reviewed financial manager order as well as appointment; whether Guardianship Tribunal breached rules of procedural fairness by not allowing a non-party to speak at the hearing - whether appeal should be extended to grounds other than a question of law
Legislation Cited: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Cases Cited: Italiano v Carbone v Ors [2005] NSWCA 177
Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886 (17 August 2000)
Holt v Protective Commissioner (1993) 31 NSWLR 227.
Category: Principal judgment
Parties: AAD
NSW Trustee and Guardian
AAE
AAF
Guardianship Tribunal
Representation: APY (agent for AAD)
Ms J McIlwraith (Guardian ad litem for AAE)
AAF (3rd respondent in person)
NSW Trustee and Guardian (no appearance)
Guardianship Tribunal (no appearance)

File Number(s): 138004
Publication restriction: Section 126 Administrative Decisions Tribunal Act 1997
Decision under appeal

Citation:

2012/1525
2012/3754

File Number(s):

C/45583

reasons for decision

Introduction

AAE is a 73 year old woman who lives in a nursing home. She has Alzheimer's dementia as well as depression and anxiety. Her daughters, AAD and AAF are estranged. On 13 October 2011, following an application from AAD, the Guardianship Tribunal made a financial management order in relation to AAE and appointed the NSW Trustee as the manager of her estate. In May 2012 AAD applied for a review of the decision to appoint the NSW Trustee as the manager of her mother's estate. AAD wanted the Guardianship Tribunal to appoint her as financial manager. AAE's other daughter, AAF, wanted the NSW Trustee and Guardian to remain as the financial manager. The Guardianship Tribunal confirmed the appointment. AAD has appealed against that decision.

Jurisdiction and parties

The Administrative Decisions Tribunal has jurisdiction to hear this external appeal: Guardianship Act 1987, s 67A(1)(h), Administrative Decisions Tribunal Act 1997 (ADT Act), s 118A. An appeal may be made as of right on a question of law and, with leave, on any other ground: ADT Act, s 118B(1).

The appellant, AAD, was represented by her husband APY, as agent: ADT Act, s 71(1)(b1). The subject person, AAE, was represented by Ms McIlwraith, a guardian ad litem appointed by the Tribunal: ADT Act, s 71(4). The subject person's other daughter, AAF, chose to appear by phone. The Guardianship Tribunal elected to be a party: ADT Act

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read AAD v NSW Trustee and Guardian and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2013] NSWADTAP 40
Decision Date: 21 August 2013

CaseChat Overview and Summary

The case of AAD v NSW Trustee and Guardian concerns an appeal by the appellant, AAD, against the decision of the Guardianship Tribunal to confirm the appointment of the NSW Trustee as the financial manager of the appellant. The appellant, who was already subject to a guardianship order, challenged the Tribunal's decision on multiple grounds, including whether the Tribunal should have reviewed the original financial manager order in addition to the appointment and whether the Tribunal breached procedural fairness by not permitting a non-party to address the hearing. The dispute was heard in the Supreme Court of New South Wales, which had appellate jurisdiction over the Guardianship Tribunal's decisions.

The central legal issues revolved around the scope of the Tribunal's review and the requirements of procedural fairness in its proceedings. The appellant contended that the Tribunal should have assessed the validity of the initial financial manager order in addition to the appointment, and that the exclusion of a non-party from the hearing constituted a procedural irregularity. Furthermore, the appellant sought to extend the grounds of appeal beyond the strictly legal errors, arguing that the Tribunal had acted in a manner that was unfair or unjust.

The Court comprehensively addressed these issues, concluding that the Guardianship Tribunal had correctly exercised its jurisdiction in confirming the appointment without revisiting the original order. The Court also found that the Tribunal had not breached procedural fairness by excluding the non-party from the hearing, as there were no grounds to suggest that the non-party's participation would have significantly affected the outcome. Consequently, the Court dismissed the appeal on the basis that the Tribunal's decisions were legally sound and procedurally fair.

In its final orders, the Court upheld the Guardianship Tribunal's decision and dismissed the appeal brought by the appellant. The NSW Trustee's appointment as the financial manager of the appellant remained in effect, and the appellant's challenge to the Tribunal's decision was rejected.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	AAD v NSW Trustee and Guardian [2013] NSWADTAP 40
Hearing dates:	22 July 2013
Decision date:	21 August 2013
Before:	Magistrate N Hennessy, Deputy President Mr P Molony, Judicial Member Ms A Wunsch, Non-Judicial Member
Decision:	The appeal is dismissed.
Catchwords:	APPEAL - appeal against decision of Guardianship Tribunal confirming the appointment of the NSW Trustee as AAE's financial manager - whether Guardianship Tribunal should have reviewed financial manager order as well as appointment; whether Guardianship Tribunal breached rules of procedural fairness by not allowing a non-party to speak at the hearing - whether appeal should be extended to grounds other than a question of law
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997
Cases Cited:	Italiano v Carbone v Ors [2005] NSWCA 177 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 75 ALJR 52 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886 (17 August 2000) Holt v Protective Commissioner (1993) 31 NSWLR 227.
Category:	Principal judgment
Parties:	AAD NSW Trustee and Guardian AAE AAF Guardianship Tribunal
Representation:	APY (agent for AAD) Ms J McIlwraith (Guardian ad litem for AAE) AAF (3rd respondent in person) NSW Trustee and Guardian (no appearance) Guardianship Tribunal (no appearance)
File Number(s):	138004
Publication restriction:	Section 126 Administrative Decisions Tribunal Act 1997
Decision under appeal	Citation: 2012/1525 2012/3754 File Number(s): C/45583