CU v Protective Commissioner - [2008] NSWADT 36

CITATION: CU v Protective Commissioner [2008] NSWADT 36

DIVISION: General Division

PARTIES:
APPLICANT
CU
RESPONDENT
Protective Commissioner

FILE NUMBER: 073292

HEARING DATES: 8 January 2008

SUBMISSIONS CLOSED: 8 January 2008

DATE OF DECISION:
21 January 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

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

MATTER FOR DECISION: Principle matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

REPRESENTATION:
APPLICANT
In person
RESPONDENT
T Tunbridge, solicitor

ORDERS: 1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed.
2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed.
3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed.
4. The decision of the Protective Commissioner to take no further action in relation to recovering documents and possessions relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.

“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

Introduction

1 The…

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 CU v Protective Commissioner

Details

AGLC: CU v Protective Commissioner [2008] NSWADT 36
Case: [2008] NSWADT 36
Decision Date: 21 January 2008

CaseChat Overview and Summary

The case between CU and the Protective Commissioner involved a dispute under the Protected Estates Act. CU, the executrix of Mr B’s estate, sought an ex gratia payment of $15,000.00 plus interest, while Mrs A, Mr B’s daughter, sought $150,000.00 to compensate for funds allegedly misappropriated by Mr B. The court was also asked to consider the disposal of a burial plot and the recovery of documents and possessions belonging to Mrs A.

The central legal issues before the court were whether the Protective Commissioner had the authority to grant the requested payments, and whether he had acted within his powers in making decisions regarding the burial plot and the recovery of documents and possessions. The court needed to determine whether the Protective Commissioner’s decisions were reasonable, lawful, and in accordance with the Protected Estates Act.

The court found that the Protective Commissioner had correctly exercised his discretion in refusing the requested payments, as there was insufficient evidence to support the claims. The court held that the Protective Commissioner’s decision to take no further action regarding the burial plot was also appropriate, as there was no legal basis for intervening. However, the court determined that the Protective Commissioner’s decision to take no further action in relation to recovering documents and possessions belonging to Mrs A was flawed, as the Protective Commissioner had a duty to obtain relevant documents. The court ordered that the Protective Commissioner take necessary steps to obtain these documents.

The court affirmed the Protective Commissioner’s decisions regarding the ex gratia payments and the burial plot, while setting aside the decision not to recover documents and possessions belonging to Mrs A. The court substituted a new decision that the Protective Commissioner take all necessary steps to obtain relevant documents.

Orders

Orders of the court

1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed. 2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed. 3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed. 4. The decision of the Protective Commissioner to take no further action in relation to recovering documents and possessions relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	CU v Protective Commissioner [2008] NSWADT 36
DIVISION:	General Division
PARTIES:	APPLICANT CU RESPONDENT Protective Commissioner
FILE NUMBER:	073292
HEARING DATES:	8 January 2008
SUBMISSIONS CLOSED:	8 January 2008
DATE OF DECISION:	21 January 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Protected Estates Act - Protective Commissioner - powers as to property - disposition of money
MATTER FOR DECISION:	Principle matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	1. The decision of the Protective Commissioner to refuse to give CU an ex gratia payment of $15,000.00 plus interest is affirmed. 2. The decision of the Protective Commissioner to refuse to give Mrs A an ex gratia payment of $150,000.00 to compensate her for funds which were allegedly misappropriated by Mr B, is affirmed. 3. The decision of the Protective Commissioner to take no further action in relation to the burial plot in which Mr B is buried is affirmed. 4. The decision of the Protective Commissioner to take no further action in relation to recovering documents and possessions relating to or belonging to Mrs A is set aside. In substitution for that decision a decision is made that the Protective Commissioner take all necessary steps to obtain documents relating to Mrs A to which it is entitled.