AOJ v NSW Trustee and Guardian - [2013] NSWADTAP 38

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: AOJ v NSW Trustee and Guardian [2013] NSWADTAP 38
Hearing dates: 30 May 2013
Decision date: 02 August 2013
Jurisdiction: Appeal Panel - External
Before: Magistrate N Hennessy, Deputy President
Ms S Leal, Judicial Member
Dr B Field, Non-judicial Member
Decision:
1. The order of the Guardianship Tribunal committing the management of AOL's estate to the NSW Trustee is affirmed.
2. Leave is refused for the appeal to be made on any ground other than a question of law.

Catchwords: APPEAL - discretion to appoint suitable person or NSW Trustee as financial manager - whether discretion exercised lawfully - whether facts supported finding of 'major' conflict of interest
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Cases Cited: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Holt v Protective Commissioner (1993) 31 NSWLR 227
House v King [1936] HCA 40
K v K [2000] NSWSC 1052
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146
SH v Protective Commissioner [2006] NSWADTAP 4
Category: Principal judgment
Parties: AOJ (Appellant)
NSW Trustee and Guardian (First Respondent)
AOK (Second Respondent)
AOL (Third Respondent)
Guardianship Tribunal (Decision maker)
Representation: Counsel
M McCall (Appellant)
S Gardiner (Third Respondent)
G Kee, APJ Law (Appellant)
No appearance (First Respondent)
No appearance (Second Respondent)
James McCaffrey and Associates (for GAL - L Fisher - for Third Respondent)
A Sprouster, legal officer (Guardianship Tribunal)

File Number(s): 138002
Decision under appeal

Citation:

2012/1329; 2012/8147

Date of Decision:

2012-11-21 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/48281

reasons for decision

Introduction

The Guardianship Tribunal made a guardianship order and a financial management order in relation to AOL, an 89 year old woman, and appointed the NSW Trustee as her financial manager. Her son, AOJ, has not challenged the making of either of the orders but has appealed against the decision to appoint the NSW Trustee. He put himself forward as a suitable financial manager but the Guardianship Tribunal decided that he had a major financial conflict of interest with his mother.

In our view, the Guardianship Tribunal did not make any error of law when deciding who to appoint as financial manager nor should leave be given for AOJ to appeal against the merits of the Guardianship Tribunal's decision. The Guardianship Tribunal made factual findings based on probative evidence and exercised its discretion taking into account all relevant considerations.

Background

AOL and her son AOJ are equal partners in a farming business which is run by AOJ. At the time the Guardianship Tribunal made its decisions AOL had been living with her daughter AOK in a rural town for about three years. AOK had raised the possibility that her mother may need to be moved to an aged care facility which would require the payment of a substantial bond. AOJ wanted AOL to return to the farm and live with him.…

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 38
Decision Date: 02 August 2013

CaseChat Overview and Summary

In the appeal of AOJ versus the New South Wales Trustee and Guardian, the High Court of Australia was asked to determine the legality of the Guardianship Tribunal's decision to appoint the NSW Trustee as the financial manager for AOJ's estate. The appellant, AOJ, argued that the Tribunal's discretion to appoint a suitable person or the NSW Trustee as a financial manager was not exercised lawfully, and that the facts did not support the finding of a 'major' conflict of interest. The case involved a dispute over the management of AOJ's estate, with the appellant contesting the Tribunal's decision to appoint the NSW Trustee.

The primary legal issue before the court was whether the Guardianship Tribunal's decision to appoint the NSW Trustee as AOJ's financial manager was made in accordance with the applicable statutory framework and was supported by the facts. The court was required to examine the statutory provisions governing the appointment of financial managers and the relevant case law to determine if the Tribunal had correctly exercised its discretion. The court also had to assess whether the Tribunal's finding of a'major' conflict of interest was justified and whether it was a necessary condition for the appointment of the NSW Trustee.

The court found that the Guardianship Tribunal had exercised its discretion lawfully in appointing the NSW Trustee as AOJ's financial manager. The court held that the Tribunal's decision was supported by the facts, and that there was indeed a 'major' conflict of interest that warranted the appointment of an independent financial manager. The court emphasised the importance of the Tribunal's discretion in such matters and found that the Tribunal had not erred in its decision-making process. Consequently, the court affirmed the order of the Guardianship Tribunal committing the management of AOJ's estate to the NSW Trustee.

In addition, the court refused leave for the appeal to be made on any ground other than a question of law. The court held that the appeal was not warranted as it did not raise any significant legal issues that warranted further consideration. The court concluded that the Guardianship Tribunal's decision was correct and that there was no basis for the appellant to pursue the appeal on any other grounds.

Orders

Orders of the court

1. The order of the Guardianship Tribunal committing the management of AOL's estate to the NSW Trustee is affirmed.

2. Leave is refused for the appeal to be made on any ground other than a question of law.

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:	AOJ v NSW Trustee and Guardian [2013] NSWADTAP 38
Hearing dates:	30 May 2013
Decision date:	02 August 2013
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President Ms S Leal, Judicial Member Dr B Field, Non-judicial Member
Decision:	1. The order of the Guardianship Tribunal committing the management of AOL's estate to the NSW Trustee is affirmed. 2. Leave is refused for the appeal to be made on any ground other than a question of law.
Catchwords:	APPEAL - discretion to appoint suitable person or NSW Trustee as financial manager - whether discretion exercised lawfully - whether facts supported finding of 'major' conflict of interest
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Holt v Protective Commissioner (1993) 31 NSWLR 227 House v King [1936] HCA 40 K v K [2000] NSWSC 1052 R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Re R [2000] NSWSC 886 S v S [2001] NSWSC 146 SH v Protective Commissioner [2006] NSWADTAP 4
Category:	Principal judgment
Parties:	AOJ (Appellant) NSW Trustee and Guardian (First Respondent) AOK (Second Respondent) AOL (Third Respondent) Guardianship Tribunal (Decision maker)
Representation:	Counsel M McCall (Appellant) S Gardiner (Third Respondent) G Kee, APJ Law (Appellant) No appearance (First Respondent) No appearance (Second Respondent) James McCaffrey and Associates (for GAL - L Fisher - for Third Respondent) A Sprouster, legal officer (Guardianship Tribunal)
File Number(s):	138002
Decision under appeal	Citation: 2012/1329; 2012/8147 Date of Decision: 2012-11-21 00:00:00 Before: Guardianship Tribunal File Number(s): C/48281