Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: ADK v NSW Trustee and Guardian [2011] NSWADTAP 60 Hearing dates: 30 September 2011 Decision date: 16 December 2011 Jurisdiction: Appeal Panel - External Before: Magistrate N Hennessy, Deputy President
Mr J Millar, Judicial Member
Dr B Field, Non-Judicial MemberDecision: 1. The decision of the Guardianship Tribunal made on 28 March 2011 in relation to ADM is set aside.
2. The whole matter is remitted to be heard and decided again with the hearing of further evidence if necessary.
3. These orders take effect on the date on which the Guardianship Tribunal determines the matter again.
Catchwords: APPEAL - procedural fairness - adequate notice of hearing - confidential evidence - disclosure of medical reports - adequacy of reasons - findings of fact on material issues Legislation Cited: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Evidence Act 1995Cases Cited: Barghouthi v Transfield Pty Ltd [2002] FCA 666
XYZ v State Trustees Limited [2006] VSC 444
Pilbara Aboriginal Land Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
KA v Public Guardian [2004] NSWADTAP 25
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; [1986] HCA 7 (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311
Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992
Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88
Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502
J v Lieschke (1987) 69 ALR 647
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board of New South Wales v Osmond [1986] HCA 7; [1986] HCA 7; (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311 Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 Nominal Defendant v Kostic [2007] NSWCA 14
Nikolovski v Telstra Corp Ltd [2002] FCA 846
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Re B (No. 1) [2011] NSWSC 1075
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th, Lawbook Co 2009 Category: Principal judgment Parties: ADK (Appellant)
AEJ (2nd Appellant)
NSW Trustee and Guardian (1st Respondent)
ADL (2nd Respondent)
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- Case
- [2011] NSWADTAP 60
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Guardianship Tribunal's process and findings were fair and just. Key issues included whether ADK received adequate notice of the hearing, whether confidential evidence was appropriately handled, and whether the disclosure of medical reports was sufficient. The court also examined whether the Tribunal's reasons for its decision were adequate and whether it made findings on material issues.
The court found that the Guardianship Tribunal failed to ensure procedural fairness. ADK did not receive adequate notice of the hearing, and confidential evidence was not handled properly. Additionally, the Tribunal did not provide sufficient reasons for its decision, and it did not make findings on material issues. The court concluded that these procedural errors and inadequacies in the reasons and findings meant the Tribunal's decision was flawed.
Accordingly, the court set aside the Guardianship Tribunal's decision and remitted the matter for reconsideration. The orders direct that the Tribunal must determine the matter again, including the possibility of hearing further evidence. These orders take effect when the Tribunal reconvenes to decide the matter anew.
Orders
Orders of the court
1. The decision of the Guardianship Tribunal made on 28 March 2011 in relation to ADM is set aside.
2. The whole matter is remitted to be heard and decided again with the hearing of further evidence if necessary.
3. These orders take effect on the date on which the Guardianship Tribunal determines the matter again.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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