AKX v NSW Trustee and Guardian - [2012] NSWADTAP 49

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AKX v NSW Trustee and Guardian [2012] NSWADTAP 49
Hearing dates: 15 October 2012
Decision date: 23 November 2012
Before: Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
A Wunsch, Non-Judicial Member
Decision:
1. The decision of the Guardianship Tribunal to make a guardianship order in relation to AKZ and to appoint ALA and ALC as his guardians is affirmed.
2. The appeal on a question of law is dismissed.
3. Leave is refused for an appeal to proceed on any other ground.

Catchwords: EXTERNAL APPEAL - appeal on question of law - procedural fairness - application for leave to extend appeal to the merits of Guardianship Tribunal's decision - fact finding process
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Cases Cited: Carew v Protective Commissioner [2005] NSWADTAP 13
GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADT 52
Kioa v West (1985) 159 CLR 550
Northern Territory of Australia v Herbert [2002] NTSC 4
Papakosmas v R (1999) 196 CLR 650
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33
S157/2002 v Commonwealth (2002) 211 CLR 476
Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed
N Rees 'Procedure and Evidence in 'Court Substitute' Tribunals' (2006) 28 Australian Bar Review 41
Category: Principal judgment
Parties: AKX (First Appellant)
AKY (Second Appellant)
NSW Trustee and Guardian (First Respondent)
ALA (Second Respondent)
AKZ (Third Respondent)
ALB (Fourth Respondent)
ALC (Fifth Respondent)
Guardianship Tribunal (Decision Maker)
Representation: AKX (In person)
AKY (In person)
NSW Trustee and Guardian (No appearance)
ALA (In person)
AKZ (Ms L Barry, guardian ad litem)
ALB (No appearance)
ALC (In person)
Guardianship Tribunal (No appearance)

File Number(s): 128011
Decision under appeal

Date of Decision:

2012-06-04 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/48959 - Matter Nos. 2011/8905 and 2011/8906

REASONS FOR DECISION

Introduction

AKZ is an 84 year old man with Alzheimer's disease who lives in an aged care facility. The Guardianship Tribunal made a 12 month guardianship order in relation to AKZ and appointed his cousin and cousin's wife as his guardians. They can make decisions for AKZ about his health care, whether he should consent to medical and dental treatment and the services he should receive. AKZ's nephew and his nephew's wife have appealed against that decision. We have concluded that the appeal should be dismissed because the Guardianship Tribunal gave the nephew and his wife a fair hearing. We have also refused to give the nephew permission to appeal against the merits of the Guardianship Tribunal's decision. It made findings of facts in a fair and orthodox manner and which were based on the evidence.

Not all the grounds of appeal put forward by the nephew as questions of law actually identify a question of law. We appreciate the difficulty of distinguishing between questions of law and other questions.…

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 49
Decision Date: 23 November 2012

CaseChat Overview and Summary

The appeal was brought by AKX, who sought to challenge the decision of the Guardianship Tribunal. The Tribunal had made a guardianship order in relation to AKZ, appointing ALA and ALC as his guardians. The appeal was on a question of law, with AKX also seeking leave to appeal to the merits of the Tribunal’s decision on the grounds of procedural fairness and the fact-finding process. The appeal was heard by the NSW Civil and Administrative Tribunal, which dismissed the appeal and refused leave for an appeal to proceed on any other ground.

The central legal issue before the court was whether the Guardianship Tribunal had made an error of law, specifically regarding procedural fairness and the fact-finding process. The court needed to determine if the Tribunal's process was sufficiently fair and if the evidence considered was appropriate and sufficient. AKX argued that the Tribunal had failed to give adequate weight to certain evidence and had not allowed for proper cross-examination.

The court held that the Guardianship Tribunal's decision was not tainted by any error of law. It found that the Tribunal had acted within its jurisdiction and followed the correct legal principles. The evidence was deemed sufficient and appropriately considered, and there was no procedural unfairness. The court emphasised the importance of the Tribunal’s discretion in balancing the rights of all parties and the welfare of AKZ. The court concluded that the appeal did not disclose any ground for allowing it to proceed on the merits.

In its final orders, the tribunal affirmed the decision of the Guardianship Tribunal, dismissing the appeal on a question of law. It also refused leave for an appeal to proceed on any other ground. This outcome ensures that the guardianship order remains in place, with ALA and ALC continuing as the guardians of AKZ.

Orders

Orders of the court

1. The decision of the Guardianship Tribunal to make a guardianship order in relation to AKZ and to appoint ALA and ALC as his guardians is affirmed.

2. The appeal on a question of law is dismissed.

3. Leave is refused for an appeal to proceed on any other ground.

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:	AKX v NSW Trustee and Guardian [2012] NSWADTAP 49
Hearing dates:	15 October 2012
Decision date:	23 November 2012
Before:	Magistrate N Hennessy, Deputy President P Molony, Judicial Member A Wunsch, Non-Judicial Member
Decision:	1. The decision of the Guardianship Tribunal to make a guardianship order in relation to AKZ and to appoint ALA and ALC as his guardians is affirmed. 2. The appeal on a question of law is dismissed. 3. Leave is refused for an appeal to proceed on any other ground.
Catchwords:	EXTERNAL APPEAL - appeal on question of law - procedural fairness - application for leave to extend appeal to the merits of Guardianship Tribunal's decision - fact finding process
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	Carew v Protective Commissioner [2005] NSWADTAP 13 GS v Protective Commissioner and Guardianship Tribunal [2003] NSWADT 52 Kioa v West (1985) 159 CLR 550 Northern Territory of Australia v Herbert [2002] NTSC 4 Papakosmas v R (1999) 196 CLR 650 R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33 S157/2002 v Commonwealth (2002) 211 CLR 476
Texts Cited:	Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed N Rees 'Procedure and Evidence in 'Court Substitute' Tribunals' (2006) 28 Australian Bar Review 41
Category:	Principal judgment
Parties:	AKX (First Appellant) AKY (Second Appellant) NSW Trustee and Guardian (First Respondent) ALA (Second Respondent) AKZ (Third Respondent) ALB (Fourth Respondent) ALC (Fifth Respondent) Guardianship Tribunal (Decision Maker)
Representation:	AKX (In person) AKY (In person) NSW Trustee and Guardian (No appearance) ALA (In person) AKZ (Ms L Barry, guardian ad litem) ALB (No appearance) ALC (In person) Guardianship Tribunal (No appearance)
File Number(s):	128011
Decision under appeal	Date of Decision: 2012-06-04 00:00:00 Before: Guardianship Tribunal File Number(s): C/48959 - Matter Nos. 2011/8905 and 2011/8906