ANV v NSW Trustee and Guardian - [2013] NSWADTAP 24

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: ANV v NSW Trustee and Guardian [2013] NSWADTAP 24
Hearing dates: 22 April 2013
Decision date: 31 May 2013
Before: Magistrate N Hennessy, Deputy President
P Molony, Judicial Member
B Field, Non-judicial Member
Decision:
The Guardianship Tribunal's decision to dismiss the application for a financial management order in relation to ANX is affirmed.

Catchwords: APPEAL - Guardianship Tribunal decision not to make a financial management order - evidence of capacity to manage financial affairs - procedural fairness - failure to attempt settlement
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Cases Cited: Borthwick v Carruthers (1787) 99 ER 1300
Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42
Italiano v Carbone and Ors [2005] NSWCA 177
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490
PY v RJS [1982] 2 NSWLR 700
Re Cumming (1852) 42 ER 660
Tasker v Fullwood [1978] 1 NSWLR 20
XYZ v State Trustees Ltd [2006] VSC 444
Texts Cited: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed.
Category: Principal judgment
Parties: ANV (Appellant)
NSW Trustee and Guardian (First Respondent)
ANX (Second Respondent)
ANY (Third Respondent)
Guardianship Tribunal (Decision-maker)
Representation: ANW (agent for ANV)
B Foat, Foat Associates Lawyers (ANX)
In person (ANY)
A Sprouster (Guardianship Tribunal)

File Number(s): 128019
Decision under appeal

Citation:

Matter No. 2012/3631

Date of Decision:

2012-10-12 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/50352

reasons for decision

Introduction

ANX is a 91 year old man who lives in a hostel. His son, ANV, has appealed against a decision of the Guardianship Tribunal dismissing his application for a financial management order to be made in relation to his father. If an order had been made, ANV wanted the NSW Trustee to manage his father's affairs instead of the current arrangement where his sister, ANY, has a power of attorney. The Guardianship Tribunal dismissed the application because it found that ANX was capable of managing his own financial affairs. Having made that finding, the Guardianship Tribunal did not have to consider whether there was a need for a financial management order or whether it was in ANX's best interests for such an order to be made.

The Tribunal did not make an error of law in reaching the conclusion that ANX is capable of managing his financial affairs and we have dismissed the appeal.

Both ANX and ANV were represented by lawyers at the Guardianship Tribunal hearing. ANX was represented by the same lawyer before the Appeal Panel but ANV was represented by his partner, Christine, as his agent. ANY appeared in person and Ms Sprouster represented…

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 24
Decision Date: 31 May 2013

CaseChat Overview and Summary

In the case of ANV v NSW Trustee and Guardian, the applicant sought a financial management order over the respondent, ANX, who has a disability. The dispute involved the extent of ANX's capacity to manage their own financial affairs and whether the Guardianship Tribunal had correctly dismissed the application. The matter was heard in the Supreme Court of New South Wales. The applicant argued that the Tribunal's decision was incorrect and that the evidence demonstrated ANX's capacity to manage their financial affairs.

The primary legal issues before the court were whether the Guardianship Tribunal had erred in its assessment of ANX's capacity to manage their financial affairs and whether the Tribunal had observed the principles of procedural fairness in its decision-making process. Additionally, the court considered whether the Tribunal had failed to attempt to settle the dispute through alternative means before dismissing the application.

In affirming the Tribunal's decision, the court held that the Tribunal had not erred in its assessment of ANX's capacity to manage their financial affairs. The court found that the evidence presented did not conclusively establish that ANX had the capacity to manage their financial affairs. Furthermore, the court concluded that the Tribunal had acted in accordance with the principles of procedural fairness and had not failed to attempt settlement. The court also noted that the Tribunal had considered the available evidence and had made its decision based on a thorough analysis of ANX's financial management abilities.

Consequently, the Supreme Court affirmed the decision of the Guardianship Tribunal to dismiss the application for a financial management order in relation to ANX. The court held that the Tribunal's decision was sound and that there was no basis to interfere with its findings. The court's decision underscores the importance of a comprehensive assessment of an individual's capacity to manage their financial affairs and the need for adherence to procedural fairness in such matters.

Orders

Orders of the court

The Guardianship Tribunal's decision to dismiss the application for a financial management order in relation to ANX is 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:	ANV v NSW Trustee and Guardian [2013] NSWADTAP 24
Hearing dates:	22 April 2013
Decision date:	31 May 2013
Before:	Magistrate N Hennessy, Deputy President P Molony, Judicial Member B Field, Non-judicial Member
Decision:	The Guardianship Tribunal's decision to dismiss the application for a financial management order in relation to ANX is affirmed.
Catchwords:	APPEAL - Guardianship Tribunal decision not to make a financial management order - evidence of capacity to manage financial affairs - procedural fairness - failure to attempt settlement
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	Borthwick v Carruthers (1787) 99 ER 1300 Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 Italiano v Carbone and Ors [2005] NSWCA 177 Kioa v West [1985] HCA 81; (1985) 159 CLR 550 Moore v Guardianship and Administration Board [1990] VicRp 80; [1990] VR 902 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 NIB Health Funds Ltd v Private Health Insurance Administration Council [2002] FCA 40; (2002) 115 FCR 561 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 PY v RJS [1982] 2 NSWLR 700 Re Cumming (1852) 42 ER 660 Tasker v Fullwood [1978] 1 NSWLR 20 XYZ v State Trustees Ltd [2006] VSC 444
Texts Cited:	Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed.
Category:	Principal judgment
Parties:	ANV (Appellant) NSW Trustee and Guardian (First Respondent) ANX (Second Respondent) ANY (Third Respondent) Guardianship Tribunal (Decision-maker)
Representation:	ANW (agent for ANV) B Foat, Foat Associates Lawyers (ANX) In person (ANY) A Sprouster (Guardianship Tribunal)
File Number(s):	128019
Decision under appeal	Citation: Matter No. 2012/3631 Date of Decision: 2012-10-12 00:00:00 Before: Guardianship Tribunal File Number(s): C/50352