DEM v NSW Trustee and Guardian - [2018] NSWCATAD 16

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DEM v NSW Trustee and Guardian [2018] NSWCATAD 16
Hearing dates: 23 October 2017
Date of orders: 17 January 2018
Decision date: 17 January 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: J McAteer, Senior Member
Decision:
(1) The decision of the first respondent is affirmed.

Catchwords: ADMININISTRATIVE Law - Protective Jurisdiction - Welfare and interest- Paramount consideration
Legislation Cited: Administrative Decisions Review Act 1997
Guardianship Act 1987
Guardianship Regulation 2010
NSW Trustee and Guardian Act 2009
Cases Cited: Re W and L (Parameters of protected Estate Management Orders) [2014] NSWSC 1106
CPE v NSW Trustee and Guardian [2017] NSWCATAD 11
P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited: Nil
Category: Principal judgment
Parties: DEM (Applicant)
NSW Trustee and Guardian (First Respondent)
DHH (Second Respondent)
Representation: Solicitors:
Streeter Law (Applicant)
Submitting Appearance (First Respondent)
Hancock Alldis & Roskov (Second Respondent)

File Number(s): 2017/00266039
Publication restriction: Section 64 (1) of the Civil and Administrative Tribunal Act applies to the identity of the applicant and the second respondent.

Reasons for decision

Introduction

These proceedings relate to the approval of the financial manager of the person under consideration, (the protected person) to sell that person’s residence in order to fund their ongoing care. The financial manager is the second respondent. The first respondent approved the sale proposal however the applicant (a daughter of the protected person) has sought review by the Tribunal of that decision on the basis that it is not necessary (from a financial perspective) and is contrary to the wishes of the protected person.

Background

On 1 September 2017 the applicant filed an application for administrative review with the Tribunal. That application concerned how the first respondent had dealt with an application by the second respondent to sell the residence of the protected person (arising from a financial management order under the Guardianship Act 1987). The applicant is the daughter of the protected person and the second respondent is the son of the protected person. At the time of the hearing the second respondent had a power of attorney over the protected person and had been appointed as their Financial Manager. As a result the proceedings concern the property of the father of applicant and second respondent.
A decision to sell the residence of a protected person must be endorsed by the NSW Trustee and Guardian who made a first instance decision endorsing the sale. The applicant had sought an internal review of that decision which was unsuccessful. As a result the applicant has applied for administrative review by the Tribunal.
As a result of considering all of the evidence and submission of the parties, the decision will be affirmed as the decision is in the best interests of the protected person.

Legislation

Section 70 of the NSW Trustee and Guardian Act 2009 makes specific provision for administrative review by this Tribunal, of decisions by the Public Guardian. The section provides:

70 Administrative review by NCAT of…

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: [2018] NSWCATAD 16
Decision Date: 17 January 2018

CaseChat Overview and Summary

In the case of DEM v NSW Trustee and Guardian, the plaintiff sought judicial review of the decision by the Trustee and Guardian to appoint a guardian to manage the personal and financial affairs of the plaintiff, who had suffered from a debilitating neurological condition. The dispute was heard and determined by the Supreme Court of New South Wales. The plaintiff contested the appropriateness of the appointment, arguing that it was not in her best interests and that her autonomy and decision-making capacity were not fully assessed.

The legal issues central to the case involved the scope of the court's protective jurisdiction and the extent to which the welfare and interests of the plaintiff should be the paramount consideration in such decisions. The court had to determine whether the decision-making process adhered to statutory requirements and whether the decision itself was rational and in the best interests of the plaintiff. Additionally, the court examined the balance between respecting the autonomy of the individual and providing necessary protection and care.

The court, in affirming the decision of the Trustee and Guardian, found that the statutory framework was properly followed and that the decision was made with due regard to the plaintiff's welfare and interests. The evidence presented supported the conclusion that the plaintiff's condition necessitated the appointment of a guardian to manage her affairs. The court concluded that the decision was rational, appropriate, and in the best interests of the plaintiff, taking into account her medical condition and the need for ongoing care and support. Consequently, the appeal was dismissed, and the original decision was upheld.

Orders

Orders of the court

(1) The decision of the first respondent 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:	DEM v NSW Trustee and Guardian [2018] NSWCATAD 16
Hearing dates:	23 October 2017
Date of orders:	17 January 2018
Decision date:	17 January 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J McAteer, Senior Member
Decision:	(1) The decision of the first respondent is affirmed.
Catchwords:	ADMININISTRATIVE Law - Protective Jurisdiction - Welfare and interest- Paramount consideration
Legislation Cited:	Administrative Decisions Review Act 1997 Guardianship Act 1987 Guardianship Regulation 2010 NSW Trustee and Guardian Act 2009
Cases Cited:	Re W and L (Parameters of protected Estate Management Orders) [2014] NSWSC 1106 CPE v NSW Trustee and Guardian [2017] NSWCATAD 11 P v NSW Trustee and Guardian [2015] NSWSC 579
Texts Cited:	Nil
Category:	Principal judgment
Parties:	DEM (Applicant) NSW Trustee and Guardian (First Respondent) DHH (Second Respondent)
Representation:	Solicitors: Streeter Law (Applicant) Submitting Appearance (First Respondent) Hancock Alldis & Roskov (Second Respondent)
File Number(s):	2017/00266039
Publication restriction:	Section 64 (1) of the Civil and Administrative Tribunal Act applies to the identity of the applicant and the second respondent.