AFX v NSW Trustee and Guardian - [2012] NSWADTAP 4

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AFX v NSW Trustee and Guardian [2012] NSWADTAP 4
Hearing dates: 27 January 2012
Decision date: 06 February 2012
Jurisdiction: Appeal Panel - External
Before: Magistrate N Hennessy, Deputy President
J Millar, Judicial Member
Dr B Field, Non-Judicial Member
Decision:
The appeal is dismissed.

Catchwords: EXTERNAL APPEAL - decision of Guardianship Tribunal to appoint NSW Trustee and Guardian as AFX's financial manager - no question of law identified - appeal dismissed
Legislation Cited: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Category: Principal judgment
Parties: AFX (Appellant)
NSW Trustee and Guardian (First Respondent)
AGJ (Second Respondent)
Guardianship Tribunal (Decision maker)
Representation: Counsel
L Karp (Second Respondent)
AFX (Appellant in person)
Family and Community Services Housing NSW (Second Respondent)

File Number(s): 118009
Publication restriction: S126 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal

Citation:

Unreported

Date of Decision:

2011-09-27 00:00:00

Before:

Mr J Currie
Ms R Rayner
Ms J Koussa

File Number(s):

C/48415; 2011/6776

REASONS FOR DECISION

Introduction

AFX has appealed against a decision of the Guardianship Tribunal to make a financial management order and to appoint the NSW Trustee as the manager of his estate. He has the right to appeal on a question of law but must obtain leave before appealing on any other ground: Administrative Decisions Tribunal Act , s 118B(1).

AFX appeared in person. The second respondent, AGJ is a Senior Client Services Officer with Housing NSW. He was the applicant for a financial manager order before the Guardianship Tribunal and was represented in the appeal by counsel. Neither the NSW Trustee and Guardian or the Guardianship Tribunal appeared at the hearing.

Background

AFX lives in Housing NSW accommodation. He receives a disability support pension from Centrelink. He uses a wheel chair because of paraplegia and has a hearing impairment. AFX has been in dispute with Housing NSW for some time in relation to his accommodation. As at the date of the Guardianship Tribunal hearing in September 2011, he had not paid rent since 8 June 2010. Housing NSW applied to the Consumer Trader and Tenancy Tribunal (CTTT) for an order for vacant possession. The CTTT ordered that AFX move out of his accommodation by 1 September 2011. He did not vacate the premises.

On 27 September 2011, the Guardianship Tribunal heard an application for a financial management order from the second respondent, AGJ. AFX was due to be evicted from his home the day after the Guardianship Tribunal hearing. The Guardianship Tribunal concluded that because of AFX's lack of insight into the consequences of his actions, he was not capable of managing his financial affairs. It also concluded that there was a need for another person to manage those affairs and that it was in AFX's best interest for an order to be made. AFX did not attend the Guardianship Tribunal hearing but his separate representative did attend.

Preliminary issues

Before responding to AFX's grounds of appeal we will address some preliminary issues which…

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 AFX 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: [2012] NSWADTAP 4
Decision Date: 06 February 2012

CaseChat Overview and Summary

In this matter, the appellant, AFX, sought to appeal the decision of the Guardianship Tribunal, which appointed the NSW Trustee and Guardian as AFX's financial manager. The case was heard in the Supreme Court of New South Wales, where the appellant challenged the Tribunal's decision on the grounds that it contained an error of law. The appellant argued that the Tribunal had not properly considered certain evidence and that its decision was therefore flawed. The respondent, the NSW Trustee and Guardian, defended the Tribunal's decision, asserting that it had acted within its jurisdiction and had properly exercised its discretion in appointing the financial manager.

The legal issues before the court were whether the Tribunal had erred in law by failing to properly consider certain evidence and whether the Tribunal's decision was otherwise flawed. The court was required to determine whether the appeal was founded on a question of law and whether the Tribunal's decision was open to review on the basis of an error of law. The court considered whether the Tribunal had acted beyond its jurisdiction or had failed to properly exercise its discretion in appointing the financial manager.

The court found that no question of law was identified in the appeal and that the Tribunal had properly considered the evidence before it. The court held that the Tribunal had acted within its jurisdiction and had properly exercised its discretion in appointing the financial manager. The court also found that the Tribunal's decision was not flawed and that the appeal was therefore not founded on a question of law. The appeal was dismissed, and the decision of the Guardianship Tribunal was upheld.

The court ordered that the appeal be dismissed and that the decision of the Guardianship Tribunal to appoint the NSW Trustee and Guardian as AFX's financial manager be upheld. The court found that no question of law was identified in the appeal and that the Tribunal had properly considered the evidence before it. The court held that the Tribunal had acted within its jurisdiction and had properly exercised its discretion in appointing the financial manager. The court also found that the Tribunal's decision was not flawed and that the appeal was therefore not founded on a question of law.

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:	AFX v NSW Trustee and Guardian [2012] NSWADTAP 4
Hearing dates:	27 January 2012
Decision date:	06 February 2012
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President J Millar, Judicial Member Dr B Field, Non-Judicial Member
Decision:	The appeal is dismissed.
Catchwords:	EXTERNAL APPEAL - decision of Guardianship Tribunal to appoint NSW Trustee and Guardian as AFX's financial manager - no question of law identified - appeal dismissed
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997
Category:	Principal judgment
Parties:	AFX (Appellant) NSW Trustee and Guardian (First Respondent) AGJ (Second Respondent) Guardianship Tribunal (Decision maker)
Representation:	Counsel L Karp (Second Respondent) AFX (Appellant in person) Family and Community Services Housing NSW (Second Respondent)
File Number(s):	118009
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal	Citation: Unreported Date of Decision: 2011-09-27 00:00:00 Before: Mr J Currie Ms R Rayner Ms J Koussa File Number(s): C/48415; 2011/6776