ADK v NSW Trustee and Guardian - [2011] NSWADTAP 60

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 Member
Decision:
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 1995
Cases 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 41
Texts 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)

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 ADK 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: [2011] NSWADTAP 60
Decision Date: 16 December 2011

CaseChat Overview and Summary

ADK, on behalf of ADM, appealed to the court challenging the decision of the Guardianship Tribunal that dismissed their application to be appointed as ADM's financial guardian. ADM is an adult with significant intellectual disabilities. ADK is ADM's daughter, and the NSW Trustee and Guardian is the respondent to the appeal. The dispute concerns the adequacy of the Tribunal's process and decision-making, particularly regarding procedural fairness, notice of the hearing, and the disclosure of medical evidence.

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

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:	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 Member
Decision:	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 1995
Cases 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 41
Texts 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)