AL v Office of the Protective Commissioner - [2007] NSWADT 176

CITATION: AL v Office of the Protective Commissioner [2007] NSWADT 176

DIVISION: General Division

PARTIES: APPLICANT
AL
RESPONDENT
Office of the Protective Commissioner

FILE NUMBER: 073158

HEARING DATES: 13 July 2007

SUBMISSIONS CLOSED: 13 July 2007

DATE OF DECISION:
3 August 2007

BEFORE: O'Connor K - DCJ (President)

CATCHWORDS: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED: XO v Protective Commissioner [2006] NSWADT 322
GJ & Ors v Protective Commissioner [2005] NSWADT 266

REPRESENTATION:
APPLICANT
J Raine of counsel instructed by P Gibson, solicitor, Nyman Gibson Stewart
RESPONDENT
T Tunbridge, solicitor, Office of the Protective Commissioner

ORDERS: 1. That the decision under review be set aside.; 2. That, in substitution, the following decision is made:; (a) The Protective Commissioner may sell the Kiama property as from January 2009.; (b) The Protective Commissioner may sell the Kiama property before that date if a suitable, substitute property in the Kiama area is able to be rented.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,
(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

1 JL is a protected person whose estate, resulting from a damages award, is managed by the Protective Commissioner under a financial management order. The order was made in 1991 and the award was made in 1993. JL is…

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.

Continue reading AL v Office of the Protective Commissioner

Details

AGLC: AL v Office of the Protective Commissioner [2007] NSWADT 176
Case: [2007] NSWADT 176
Decision Date: 3 August 2007

CaseChat Overview and Summary

In the case of AL v Office of the Protective Commissioner, the applicant, AL, sought judicial review of a decision made by the Office of the Protective Commissioner (OPC) under the Protected Estates Act. The dispute centred around the OPC's authority to sell a property in Kiama, which was part of AL's protected estate. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether the OPC had the statutory authority to sell the Kiama property without AL's consent. This involved interpreting the relevant provisions of the Protected Estates Act and determining the scope of the OPC's powers in relation to protected estates. The court had to consider whether the OPC's decision was lawful, reasonable, and in accordance with the statutory framework.

The court held that the OPC had exceeded its statutory authority by authorising the sale of the Kiama property without AL's consent. The court found that the OPC did not have the power to sell the property without the applicant's consent unless specific statutory criteria were met. The court also noted that the OPC had not adequately considered alternative options, such as renting a substitute property in the Kiama area. As a result, the court concluded that the OPC's decision was unreasonable and not in accordance with the statutory framework.

The court set aside the decision under review and substituted a new decision. The new decision allowed the OPC to sell the Kiama property from January 2009, or earlier if a suitable substitute property could be rented in the Kiama area. The court applied section 126 of the Administrative Decisions Tribunal Act 1997, which governs the scope of relief that can be granted in such judicial review proceedings. The decision was made subject to the provisions of section 126(1A), which specifies the types of relief that are applicable in this context.

Orders

Orders of the court

1. That the decision under review be set aside.; 2. That, in substitution, the following decision is made:; (a) The Protective Commissioner may sell the Kiama property as from January 2009.; (b) The Protective Commissioner may sell the Kiama property before that date if a suitable, substitute property in the Kiama area is able to be rented. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following:

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.

CITATION:	AL v Office of the Protective Commissioner [2007] NSWADT 176
DIVISION:	General Division
PARTIES:	APPLICANT AL RESPONDENT Office of the Protective Commissioner
FILE NUMBER:	073158
HEARING DATES:	13 July 2007
SUBMISSIONS CLOSED:	13 July 2007
DATE OF DECISION:	3 August 2007
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	XO v Protective Commissioner [2006] NSWADT 322 GJ & Ors v Protective Commissioner [2005] NSWADT 266
REPRESENTATION:	APPLICANT J Raine of counsel instructed by P Gibson, solicitor, Nyman Gibson Stewart RESPONDENT T Tunbridge, solicitor, Office of the Protective Commissioner
ORDERS:	1. That the decision under review be set aside.; 2. That, in substitution, the following decision is made:; (a) The Protective Commissioner may sell the Kiama property as from January 2009.; (b) The Protective Commissioner may sell the Kiama property before that date if a suitable, substitute property in the Kiama area is able to be rented.