Amo v NSW Trustee and Guardian - [2013] NSWADTAP 20

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AMO v NSW Trustee and Guardian [2013] NSWADTAP 20
Hearing dates: 14 February 2013
Decision date: 01 May 2013
Before: Magistrate N Hennessy, Deputy President
Ms S Leal, Judicial Member
Dr B Field, Non-Judicial Member
Decision:
1. AMO's appeal on a question of law is dismissed.
2. Leave is refused for AMO's appeal on other grounds to proceed.

Catchwords: APPEAL - Guardianship Tribunal decision not to vary or revoke financial management order - appeal on question of law - no question of law identified - appeal on other grounds - whether findings made on the basis of outdated or inaccurate evidence
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Cases Cited: K v K [2000] NSWSC 1052
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Category: Principal judgment
Parties: AMO (Appellant)
NSW Trustee and Guardian (Respondent)
Guardianship Tribunal (Decision Maker)
Representation: Dr F Ainsworth (Guardian ad litem for AMO)
No appearance (NSW Trustee and Guardian)
Ms A Sprouster (Guardianship Tribunal)

File Number(s): 128015
Decision under appeal

Date of Decision:

2012-08-29 00:00:00

Before:

Guardianship Tribunal

File Number(s):

File No: C/38909
Matter No: 2012/2743

reasons for decision

Introduction

Late in 2011 AMO applied to the Guardianship Tribunal to review an order it had made in 2008 appointing the NSW Trustee and Guardian as his financial manager. The Guardianship Tribunal dismissed the application. AMO applied for a review of the order again in April 2012. Again, the Guardianship Tribunal refused to vary or revoke the financial management order. The Tribunal was not satisfied either that AMO was capable of managing his affairs or that it was in his best interests for the financial management order to be varied or revoked. AMO has appealed against the Guardianship Tribunal's latest decision. We have dismissed the appeal because the Guardianship Tribunal did not make an error of law in reaching its decision. We have also refused AMO permission to appeal on any other ground.

Background

AMO is a 60 year old man with a schizo affective disorder. Because he is a "protected person" the Tribunal appointed a guardian ad litem, Dr Ainsworth, to act on his behalf: Administrative Decisions Tribunal Act 1997 (ADT Act), s 71(4A). The NSW Trustee and Guardian chose not to play any active role in the appeal. The Guardianship Tribunal's role was limited to providing information about the Guardianship Tribunal's practices and procedures. Ms Sprouster represented the Guardianship Tribunal. We were mindful of the fact that there was no one directly opposing AMO's appeal.

Should the appeal be accepted even though it is late?

AMO lodged his appeal about two weeks late. The general rule is that a person must appeal against a decision of the Guardianship Tribunal within 28 days of being provided with the written reasons for the decision: ADT Act, s 118B(2). The Appeal Panel has power to accept an appeal even if it is lodged out of…

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: [2013] NSWADTAP 20
Decision Date: 01 May 2013

CaseChat Overview and Summary

In the case of Amo v NSW Trustee and Guardian, the appellant, AMO, sought to appeal a decision by the Guardianship Tribunal to maintain a financial management order over her affairs. The Tribunal had rejected AMO's application to either vary or revoke the order, which was originally made due to her diminished capacity to manage her financial affairs. AMO brought the appeal to the Supreme Court of New South Wales, seeking to challenge the decision on both a question of law and other grounds.

The primary legal issues before the court were whether the appeal was validly grounded in a question of law, and if not, whether there were other sufficient grounds to permit the appeal. The court examined whether the appeal was based on an error of law apparent on the face of the record, as required by statute. Additionally, the court considered whether the findings made by the Tribunal were based on outdated or inaccurate evidence, which could provide a basis for appeal on other grounds.

The court found that the appeal did not validly raise a question of law, as there was no error of law evident from the record. The findings of the Tribunal were based on evidence that was both current and accurate. The court held that the appeal did not meet the statutory criteria for a question of law appeal and dismissed the appeal on this basis. Furthermore, the court refused leave for the appeal to proceed on other grounds, as there was no evidence to suggest that the Tribunal's findings were based on outdated or incorrect information.

Accordingly, the court dismissed the appeal on the question of law and refused leave for the appeal to proceed on other grounds. The financial management order over AMO's affairs remained in place, as originally determined by the Guardianship Tribunal.

Orders

Orders of the court

1. AMO's appeal on a question of law is dismissed.

2. Leave is refused for AMO's appeal on other grounds to proceed.

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:	AMO v NSW Trustee and Guardian [2013] NSWADTAP 20
Hearing dates:	14 February 2013
Decision date:	01 May 2013
Before:	Magistrate N Hennessy, Deputy President Ms S Leal, Judicial Member Dr B Field, Non-Judicial Member
Decision:	1. AMO's appeal on a question of law is dismissed. 2. Leave is refused for AMO's appeal on other grounds to proceed.
Catchwords:	APPEAL - Guardianship Tribunal decision not to vary or revoke financial management order - appeal on question of law - no question of law identified - appeal on other grounds - whether findings made on the basis of outdated or inaccurate evidence
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 NSW Trustee and Guardian Act 2009
Cases Cited:	K v K [2000] NSWSC 1052 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Category:	Principal judgment
Parties:	AMO (Appellant) NSW Trustee and Guardian (Respondent) Guardianship Tribunal (Decision Maker)
Representation:	Dr F Ainsworth (Guardian ad litem for AMO) No appearance (NSW Trustee and Guardian) Ms A Sprouster (Guardianship Tribunal)
File Number(s):	128015
Decision under appeal	Date of Decision: 2012-08-29 00:00:00 Before: Guardianship Tribunal File Number(s): File No: C/38909 Matter No: 2012/2743