AHB v NSW Trustee and Guardian

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

AHB v NSW Trustee and Guardian [2014] NSWCA 216

Hearing dates:

18 June 2014

Decision date:

07 July 2014

Before:

McColl JA at [1];
Basten JA at [2];
Meagher JA at [4]

Decision:

(1) Appeal dismissed.

(2) No order as to the costs of the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - appeal against decision of Appeal Panel upholding Administrative Decision Tribunal's decision to confirm respondent's decision as financial manager of protected person's estate to sell family home - appeal grounds involve no question of law - no question of principle

COSTS - exercise of discretion - whether costs should follow event that appeal dismissed - respondent part of executive government and subject to Model Litigant Policy - decision which was subject to appeal not acted upon and no longer relevant - appellant litigant in person - no attempt by respondent to avoid need for hearing of appeal - failure to adhere to requirement of Policy - departure from ordinary rule justified

Legislation Cited:

Administrative Decisions Tribunal Act 1997 (NSW), ss 36, 38, 55, 112, 113, 115, 119
Aged Care Act 1997 (Cth), s 22-1
Civil Procedure Act 2005 (NSW) ss 56, 98
Court Suppression and Non-publication Orders Act 2010 (NSW), s 7
Guardianship Act 1987 (NSW), ss 14, 16, 25E, 25G, 25M, 57
NSW Trustee and Guardian Act 2009 (NSW), ss 6, 39, 62
NSW Trustee and Guardian Regulation 2008 (NSW), cl 43
Uniform Civil Procedure Rules, rr 7.14, 7.15, 36.16

Cases Cited:

AHB v NSW Trustee and Guardian [2012] NSWADT 76
Mahenthirarasa v State Rail Authority of NSW (No 2) [2008] NSWCA 201

Category:

Principal judgment

Parties:

Applicant (Self-represented)
NSW Trustee and Guardian (Respondent)

Representation:

Counsel:
Applicant (Self-represented)
JS Emmett, A Russoniello (Respondent)
Solicitors:
Applicant (Self-represented)
IV Knight, Crown Solicitor (Respondent)

File Number(s):

2013/286294

 Decision under appeal 

Jurisdiction:

9113

Citation:

AHB v NSW Trustee and Guardian [2012] NSWADTAP 37

Date of Decision:

2012-08-08 00:00:00

Before:

N Hennessy Deputy President,
L Goodchild Judicial Member,
B Thomson Non-Judicial Member

File Number(s):

129011

Judgment

1. McCOLL JA: I agree with Meagher JA's reasons and the orders his Honour proposes. I also agree with Basten JA's observation.

1. BASTEN JA: I agree with Meagher JA.

1. There is one additional matter worth noting. For the respondent to maintain the decision under review without reconsideration, in reliance upon a circumstance which existed in 2011, namely that the protected person's ongoing liabilities exceeded her income, would be to ignore the more recent recognition by the Public Guardian of the view of the protected person that she would not wish…