AJJ v NSW Trustee and Guardian

[2012] NSWADTAP 30

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AJJ v NSW Trustee and Guardian [2012] NSWADTAP 30
Hearing dates:	22 June 2012
Decision date:	22 June 2012
Before:	Magistrate N Hennessy, Deputy President C Huntsman, Judicial Member A Wunsch, Non-judicial Member
Decision:	Leave to appeal on grounds other than a question of law is refused
Catchwords:	APPEAL - leave to appeal on grounds other than a question of law - leave refused
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	K v K [2000] NSWSC 1052
Category:	Principal judgment
Parties:	AJJ (Appellant) NSW Trustee and Guardian (First Respondent) AJK (Second Respondent) AJL (Third Respondent Guardianship Tribunal (Fourth Respondent)
Representation:	Counsel Ms C King (Second Respondent) AJJ - In person NSW Trustee and Guardian - No appearance AJK - Ms B Weule (Guardian ad litem) AJL - In person Guardianship Tribunal - Ms A Sprouster
File Number(s):	128004
Decision under appeal	Citation: 2012/485 Date of Decision: 2012-03-12 00:00:00 File Number(s): C/42546

REASONS FOR DECISION

1. HER HONOUR: This is an appeal by AJJ against a decision of the Guardianship Tribunal made on 12 March 2012. AJJ is the sister of AJK who is a young man with Down's Syndrome. There is a dispute between AJJ and her mother in relation to many aspects of AJK's care, both health care and accommodation issues. Prior to October 2011, AJJ was the guardian and financial manager for her brother. She had the authority to make decisions about where he should live and the health care he should receive. In October 2011 AJJ's mother (AJL) applied to the Guardianship Tribunal for a review of those orders.

1. The Guardianship Tribunal revoked both AJJ's appointments and appointed the Public Guardian and the NSW Public Trustee respectively as AJK's guardian and financial manager. Later in March 2012 the Guardianship Tribunal heard another application for a review of those orders.

1. At that time the Guardianship Tribunal varied the guardianship order giving AJJ power to make decisions about health care and consent to medical and dental treatment. The Guardianship Tribunal retained the Public Guardian to make decisions in relation to accommodation, services and travel and also retained the New South Wales Trustee to make decisions in relation to AJK's finances.

1. It is the decision of 12 March 2012 against which AJJ has appealed. She is entitled to appeal on a question of law but requires the Tribunal's leave to appeal on any other ground: s 118B of the Administrative Decisions Tribunal Act 1997 (ADT Act). AJJ made it clear, firstly, that she was appealing against both decisions of the Guardianship Tribunal; that is, the decision relating to guardianship and the decision relating to financial management, and, secondly, that she was not appealing on any question of law.

1. The issue in these proceedings is whether or not the Appeal Panel should grant leave for AJJ to appeal against either the Guardianship Tribunal's guardianship decision or the Guardianship Tribunal's financial management decision. We have decided to refuse leave in relation to both those matters and I will set out the reasons for that decision.

1. There is no guidance in the ADT Act as to the relevant matters to be taken into account in determining whether leave should be granted, however the Supreme Court has provided some guidance on that question in the case of K v K [2000] NSWSC 1052 (K v K). That case interprets a section of the Guardianship Act 1987, which is the equivalent provision to s 118B(1)(b) of the ADT Act, in relation to appeals from tribunal decisions to the Supreme Court. There is a quote from Young J at para 15 of that decision which sets out the test that this Tribunal must apply. It says:

"It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner, or in a way which is likely to produce an unfair result, so that it would be in the interests of justice for it to be reviewed."

1. AJJ submitted that the Guardianship Tribunal had not taken into account several matters, which she said were relevant to its decision. The response from the guardian ad litem's representative, Ms King, was that many of those matters were mentioned in the previous decision in October 2011, and since the October 2011 decision was appended to the March 2012 decision then, by implication, the Guardianship Tribunal had taken those matters into account. Indeed the Guardianship Tribunal approached its task in March 2012 as being to accept the matters that it had found in October and to ask AJJ to provide any further information on which she wished to rely. That is apparent, in particular, from the last paragraph of the Guardianship Tribunal's decision in relation to financial management where the Guardianship Tribunal says:

"(AJJ) raised no new issues in relation to this matter other than that she would ensure she paid her mother rent for (AJK) until she found alternative accommodation for her brother. This was an issue raised at the previous hearing."

1. I will now address each of the matters that AJJ said that the Guardianship Tribunal had not given sufficient account to. The first matter involved rental or board payments to AJL who is AJK and AJJ's mother. At the time AJK was living with AJL and said that because AJK's pension money was going to AJJ she was not paying her, that is, AJL, any money for AJK's board. AJJ explained to the Guardianship Tribunal that the reason she was not paying cash to her mother was because of a concern about her mother's alleged gambling problem.

1. She said that she was willing to make a payment into an account but that her mother had not accepted that suggestion. This matter was addressed in the October decision but not specifically in the March decision.

1. Applying the test in K v K, even if the Guardianship Tribunal had specifically taken that matter into account it would not have made any difference to the final decision and therefore would not have produced an unfair result. The second matter, which AJJ raised, concerned AJK's bank account. She clarified that AJK's pension money was put into a separate account in his name but that if there was money left over it was then placed into a joint account in her name and AJK's name.

1. While that is a more complete explanation of the evidence that was before the Guardianship Tribunal it does not materially change what the Guardianship Tribunal understood to be the case; that is, that funds were effectively pooled and that AJK's money was under the control of AJJ.

1. The third matter that AJJ mentioned was that the Guardianship Tribunal did not take into account evidence and assertions that she made that related to how well AJK was being fed by his mother and whether or not medications and creams that he required were being applied. Both those matters were mentioned by the Guardianship Tribunal in the October hearing and, in any event, the Guardianship Tribunal in the March hearing gave AJJ the function of health care and providing medical and dental consents so that that issue again would not have made any difference to the outcome at the hearing.

1. Our general conclusion is that the Guardianship Tribunal did take into account the matters that AJJ raised either in the October hearing or the March hearing. Even if it didn't, none of those matters was of such significance that it would have affected the Guardianship Tribunal's decision. For those reasons, leave is refused for the appeal to proceed on any other ground.

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Decision last updated: 02 August 2012