AJF v NSW Trustee and Guardian - [2012] NSWADTAP 28

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AJF v NSW Trustee and Guardian [2012] NSWADTAP 28
Hearing dates: 6 July 2012
Decision date: 26 July 2012
Before: Magistrate N Hennessy, Deputy President
Ms L Goodchild, Judicial Member
Ms M Bolt, Non-Judicial Member
Decision:
The decisions of the Guardianship Tribunal in relation to AJH made on 28 October 2011 are affirmed.

Catchwords: EXTERNAL APPEAL - decisions of the Guardianship Tribunal relating to guardianship and financial management - appeal on questions of law - procedural fairness issues - whether appeal should extend to the merits
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Interpretation Act 1987
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767
Holt v Protective Commissioner (1993) 31 NSWLR 227
K v K [2000] NSWSC 1052
KA v Public Guardian [2004] NSWADTAP 25
Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490
Re R [2000] NSWSC 886
Tasker v Fullwood [1978] 1 NSWLR 20
Titan v Babic (1994) 49 FCR 546
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category: Principal judgment
Parties: AJF (Appellant)
NSW Trustee and Guardian (First Respondent)
AJH (Second Respondent)
AJE (Third Respondent)
AJG (Fourth Respondent)
Representation: Counsel
Mr Williamson (Appellant)
Craney Family Solicitors (Appellant)
No appearance (First Respondent)
James McCaffrey & Associates - appearing for Ms L Fisher, guardian ad litem (Second Respondent)
V L Hall - appearing for Ms D Doratis, guardian ad litem (Third Respondent)
No appearance (Fourth Respondent)
E Cho (Guardianship Tribunal)

File Number(s): 128002
Decision under appeal

Citation:

2011/6912; 2011/7414

Date of Decision:

2011-10-28 00:00:00

File Number(s):

C/48444

REASONS FOR DECISION

Introduction

AJF has appealed to the Appeal Panel against two decisions of the Guardianship Tribunal that relate to his father, AJH. The first decision was to continue a temporary guardianship order for a further period of twelve months and to appoint the Public Guardian to make decisions about accommodation, health care, medical and dental treatment and services. The second decision was to make a financial management order and to appoint the NSW Trustee as his father's financial manager.

AJF is entitled to appeal on a question of law but must obtain the Tribunal's leave before an appeal can be heard on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

The Guardianship Tribunal's decisions were in response to applications by AJF for guardianship and financial management orders in relation to both his parents. AJF made the applications anticipating that he would be appointed as his parents' guardian and financial manager. AJF has also appealed against the decisions relating to his mother. That appeal has been considered in separate reasons: AJF v NSW Trustee…

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.

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Details

Case: [2012] NSWADTAP 28
Decision Date: 26 July 2012

CaseChat Overview and Summary

In the case of AJF v NSW Trustee and Guardian, the appellant sought to appeal the decisions of the Guardianship Tribunal concerning the appointment of a financial manager for the respondent, AJH. The appeal raised questions of law and procedural fairness, specifically addressing whether the appeal should encompass the merits of the decisions made by the Guardianship Tribunal. The case was heard in the Supreme Court of New South Wales, which had the jurisdiction to review the decisions of the Guardianship Tribunal under the relevant legislative framework.

The primary legal issues before the court were whether the Guardianship Tribunal had erred in its decision-making process and whether procedural fairness was observed. The appellant argued that there were significant procedural irregularities and errors in the Tribunal's determination, which warranted a review of the merits of the case. The court needed to assess whether these issues were substantial enough to merit an appeal on the merits or if they were confined to questions of law and procedural fairness.

The court, in its reasoning, found that while there were procedural irregularities, they did not significantly impact the outcome of the Guardianship Tribunal's decisions. The court held that the issues raised by the appellant were primarily of a legal nature and related to procedural fairness, rather than the merits of the decisions. Therefore, the appeal was limited to these aspects. The court concluded that the Guardianship Tribunal had not erred in law and had observed procedural fairness in making its decisions. Consequently, the appeal was dismissed, and the decisions of the Guardianship Tribunal were affirmed.

Orders

Orders of the court

The decisions of the Guardianship Tribunal in relation to AJH made on 28 October 2011 are affirmed.

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:	AJF v NSW Trustee and Guardian [2012] NSWADTAP 28
Hearing dates:	6 July 2012
Decision date:	26 July 2012
Before:	Magistrate N Hennessy, Deputy President Ms L Goodchild, Judicial Member Ms M Bolt, Non-Judicial Member
Decision:	The decisions of the Guardianship Tribunal in relation to AJH made on 28 October 2011 are affirmed.
Catchwords:	EXTERNAL APPEAL - decisions of the Guardianship Tribunal relating to guardianship and financial management - appeal on questions of law - procedural fairness issues - whether appeal should extend to the merits
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Interpretation Act 1987
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Holt v Protective Commissioner (1993) 31 NSWLR 227 K v K [2000] NSWSC 1052 KA v Public Guardian [2004] NSWADTAP 25 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 Re R [2000] NSWSC 886 Tasker v Fullwood [1978] 1 NSWLR 20 Titan v Babic (1994) 49 FCR 546 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category:	Principal judgment
Parties:	AJF (Appellant) NSW Trustee and Guardian (First Respondent) AJH (Second Respondent) AJE (Third Respondent) AJG (Fourth Respondent)
Representation:	Counsel Mr Williamson (Appellant) Craney Family Solicitors (Appellant) No appearance (First Respondent) James McCaffrey & Associates - appearing for Ms L Fisher, guardian ad litem (Second Respondent) V L Hall - appearing for Ms D Doratis, guardian ad litem (Third Respondent) No appearance (Fourth Respondent) E Cho (Guardianship Tribunal)
File Number(s):	128002
Decision under appeal	Citation: 2011/6912; 2011/7414 Date of Decision: 2011-10-28 00:00:00 File Number(s): C/48444