AJF v NSW Trustee and Guardian - [2012] NSWADTAP 29

Administrative Decisions Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: AJF v NSW Trustee and Guardian [2012] NSWADTAP 29
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 AJE 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): 128003
Decision under appeal

Citation:

2011/6329

Date of Decision:

2011-10-28 00:00:00

File Number(s):

C/48311

REASONS FOR DECISION

Introduction

AJF has appealed to the Appeal Panel against two decisions of the Guardianship Tribunal that relate to his mother, AJE. The first decision was to make a guardianship order for 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 mother'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 father. That appeal has been considered in separate reasons: AJF v NSW Trustee and Guardian [2012] NSWADTAP 28.

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 29
Decision Date: 26 July 2012

CaseChat Overview and Summary

AJF sought an appeal from the Guardianship Tribunal's decisions concerning the guardianship and financial management of AJE. The appeal was focused on the Tribunal's procedural fairness and whether the appeal should extend to the merits of the decision. The primary dispute was whether the Guardianship Tribunal had adhered to the principles of procedural fairness when it made its determinations regarding AJE's guardianship and financial management. The appeal was heard in the New South Wales Supreme Court.

The legal issues that the court had to decide were whether the Guardianship Tribunal's decisions were made in accordance with the principles of procedural fairness and whether the appeal should extend to the merits of the decision. The appeal hinged on whether the Tribunal had provided adequate opportunity for AJE to be heard and to respond to the evidence and submissions made during the proceedings. The court also had to determine whether the appeal was confined to questions of law or whether it should extend to the merits of the decision.

The court found that the Guardianship Tribunal had followed the principles of procedural fairness and that there was no miscarriage of justice in the Tribunal's decision. The court held that the appeal was limited to questions of law and did not extend to the merits of the decision. The court concluded that the appeal was misconceived and did not provide any grounds for the decisions of the Guardianship Tribunal to be set aside. The appeal was dismissed, and the decisions of the Guardianship Tribunal were affirmed. The court did not make any further orders.

Orders

Orders of the court

The decisions of the Guardianship Tribunal in relation to AJE 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 29
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 AJE 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):	128003
Decision under appeal	Citation: 2011/6329 Date of Decision: 2011-10-28 00:00:00 File Number(s): C/48311