Davies v Protective Commissioner - [2008] NSWADT 35

CITATION: Davies v Protective Commissioner [2008] NSWADT 35

DIVISION: General Division

PARTIES:
APPLICANT
Samuel Davies
RESPONDENT
Protective Commissioner

FILE NUMBER: 073234

HEARING DATES: 8 November 2007

SUBMISSIONS CLOSED: 8 November 2007

DATE OF DECISION:
21 January 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

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

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED: Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50
McNally v Commissioner of State Revenue [2003] NSWSC 1118

REPRESENTATION:
APPLICANT
In person
RESPONDENT
T Tunbridge, solicitor

ORDERS: The decision to pay the applicant an ex gratia amount of $1,686.00 is affirmed.

“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 Mr Davies has applied to the Tribunal for a review of a decision by the Protective Commissioner to give him an ex gratia payment of $1686.00. The Protective Commissioner paid Mr Davies that money as executor of his mother’s estate, to compensate the estate for the fact that the Protective Commissioner had not claimed an exemption from land tax for his mother’s principal place of residence for three years. Mr Davies says that the payment of $1686.00 was made on the assumption that his mother’s principal place of residence was in Marulan. He says that her principal place of residence for 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 Davies v Protective Commissioner

Details

AGLC: Davies v Protective Commissioner [2008] NSWADT 35
Case: [2008] NSWADT 35
Decision Date: 21 January 2008

CaseChat Overview and Summary

Davies v Protective Commissioner is a case that concerns the powers of the Protective Commissioner under the Protected Estates Act. The applicant, Davies, sought a review of a decision by the Protective Commissioner regarding the administration of an estate. The dispute was heard by the Administrative Appeals Tribunal, which is the relevant court for such matters. The primary issue before the tribunal was whether the Protective Commissioner had acted within his statutory powers when deciding on the distribution of the estate, particularly in relation to the payment of an ex gratia amount to the applicant.

The tribunal examined the statutory framework provided by the Protected Estates Act and the duties and powers of the Protective Commissioner. It was necessary to determine whether the Commissioner had correctly interpreted and applied the relevant provisions of the Act. The applicant argued that the decision to pay an ex gratia amount was incorrect and that a larger sum should have been awarded. The tribunal also had to consider the principles of natural justice and procedural fairness in the context of the Commissioner's decision-making process.

In its decision, the tribunal found that the Protective Commissioner had exercised his powers appropriately and had not erred in law. The tribunal held that the Commissioner had correctly interpreted the Act and had followed a fair and reasonable process in reaching his decision. The tribunal further found that the ex gratia payment was consistent with the statutory provisions and did not constitute an error. Therefore, the tribunal affirmed the decision to pay the applicant the specified amount. The tribunal also confirmed that the applicant's right to seek review was preserved, and section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Orders

Orders of the court

The decision to pay the applicant an ex gratia amount of $1,686.00 is affirmed. "Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

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:	Davies v Protective Commissioner [2008] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Samuel Davies RESPONDENT Protective Commissioner
FILE NUMBER:	073234
HEARING DATES:	8 November 2007
SUBMISSIONS CLOSED:	8 November 2007
DATE OF DECISION:	21 January 2008
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Protected Estates Act - Protective Commissioner - powers as to property
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	Chief Commissioner of State Revenue v Aldridge & Anor [2003] NSWADTAP 50 McNally v Commissioner of State Revenue [2003] NSWSC 1118
REPRESENTATION:	APPLICANT In person RESPONDENT T Tunbridge, solicitor
ORDERS:	The decision to pay the applicant an ex gratia amount of $1,686.00 is affirmed.