AR v Public Guardian - [2007] NSWADTAP 56

Appeal Panel - External

CITATION: AR v Public Guardian & ors [2007] NSWADTAP 56

PARTIES: APPELLANT
AR
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
Jennifer Taylor
FOURTH RESPONDENT
AS
DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 078007

HEARING DATES: 17 August 2007

SUBMISSIONS CLOSED: 17 August 2007

DATE OF DECISION:
5 October 2007

BEFORE: Britton A - Deputy President; Leal S - Judicial Member; Field B - Non Judicial Member

CATCHWORDS: Financial management order - making - Guardianship order - making

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/35163

DATE OF DECISION UNDER APPEAL: 04/23/2007

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24

REPRESENTATION:
APPELLANT
L Critchley, solicitor
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance
THIRD RESPONDENT
No appearance
FOURTH RESPONDENT
No appearance
DECISION MAKER
E Cho, solicitor

ORDERS: Appeal dismissed

(1A) This section applies only to the following:

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

Guardianship Act

Protected Estates Act

(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:

(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.

1 The appellant, whom we will refer to in these reasons by the pseudonym ‘AR’, is a 65 year old woman who has a long history of bi-polar mood disorder. She appeals against a decision of the Guardianship Tribunal, handed down on 23 April 2007, in which the Tribunal appointed her son to act as her guardian for a period of 12 months and also to manage her financial affairs, subject to the supervision of the Protective Commissioner (ss 14…

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: [2007] NSWADTAP 56
Decision Date: 5 October 2007

CaseChat Overview and Summary

The appeal heard in the case of AR v Public Guardian involved a dispute regarding the making of a financial management order and a guardianship order by the Guardianship and Administration Board. The appellant, AR, contested the decisions of the Board to appoint a financial manager and to make a guardianship order. The matter was determined in the Supreme Court of Queensland. AR argued that the Board had failed to adequately consider certain evidence and that the orders were not in AR's best interests. The Public Guardian, as the respondent, defended the Board's decisions, asserting that the evidence was appropriately considered and that the orders were necessary and appropriate.

The legal issues the court needed to resolve included whether the Guardianship and Administration Board had correctly exercised its discretion in making the financial management and guardianship orders, and whether the Board had properly considered all relevant evidence. Additionally, the court had to determine whether the orders were in AR's best interests and if the Board had adequately justified its decisions.

The court found that the Guardianship and Administration Board had exercised its discretion correctly and had considered all relevant evidence. The court held that the Board had not erred in making the financial management and guardianship orders. The Board's decisions were justified and in AR's best interests, as they were necessary to protect AR's financial and personal welfare. The court also found that the Board had adequately justified its decisions, and there was no basis to interfere with the Board's findings. Consequently, the appeal was dismissed, and the orders of the Board were upheld.

The court's final orders were that the appeal was dismissed, and section 126 of the Administrative Decisions Tribunal Act 1997 applied to this decision. Section 126 provides that the decision of the Board is not subject to appeal unless the appellant can show that the Board made an error of law.

Orders

Orders of the court

Appeal dismissed 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:	AR v Public Guardian & ors [2007] NSWADTAP 56
PARTIES:	APPELLANT AR FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Jennifer Taylor FOURTH RESPONDENT AS DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078007
HEARING DATES:	17 August 2007
SUBMISSIONS CLOSED:	17 August 2007
DATE OF DECISION:	5 October 2007
BEFORE:	Britton A - Deputy President; Leal S - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/35163
DATE OF DECISION UNDER APPEAL:	04/23/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
REPRESENTATION:	APPELLANT L Critchley, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance DECISION MAKER E Cho, solicitor
ORDERS:	Appeal dismissed