DG v Public Guardian - [2008] NSWADTAP 58

Appeal Panel - External

CITATION: DG v Public Guardian and ors [2008] NSWADTAP 58

PARTIES:
APPELLANT
DG
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
Maris Tonkin
FOURTH RESPONDENT
HZ
DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 078016

HEARING DATES: 14 August 2008

SUBMISSIONS CLOSED: 14 August 2008

DATE OF DECISION:
3 September 2008

BEFORE: Britton A - Deputy President; Millar J - Judicial Member; Wunsch A - Non Judical Member

CATCHWORDS: Guardianship order - review - financial management order - making

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: Review of a Guardianship Order C/37476

FILE NUMBER UNDER APPEAL: 2007/5747

DATE OF DECISION UNDER APPEAL: 09/17/2007

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
CZ v Public Guardian & ors [2008] NSWADTAP 42
House v The King (1936) 55 CLR 499
IF v IG & Ors [2004] NSWADTAP 3
Ms A v Public Guardian & Ors [2006] NSWADTAP 55
R v Australian Broadcasting Tribunal; Ex p. Hardiman (1980) 144 CLR 13

REPRESENTATION:
APPELLANT
M Armstrong, barrister instructed by B Ramjam guardian ad liten
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance
THIRD RESPONDENT
No appearance
FOURTH RESPONDENT
In person
DECISION MAKER
E Cho, legal officer
COUNSEL ASSISTING
A Johnson, solicitor

ORDERS: The decision of the Appeal Panel is that the appeal is allowed. We make the following orders:
1. Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007
2. The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made and (ii) any additional evidence that the Guardianship Tribunal decides to consider.

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…

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 DG v Public Guardian

Details

AGLC: DG v Public Guardian [2008] NSWADTAP 58
Case: [2008] NSWADTAP 58
Decision Date: 3 September 2008

CaseChat Overview and Summary

The case involved a challenge to a decision made by the Guardianship Tribunal, with the appellant, DG, contesting the Tribunal's ruling that a financial management order should be made. The matter was heard by an appeal panel in the Supreme Court of Victoria. The central issue for the court was whether the Tribunal had correctly exercised its discretion in making a financial management order over the appellant. The court had to determine whether the evidence provided was sufficient to support the Tribunal's decision.

In examining the matter, the court considered whether the Tribunal had appropriately applied the relevant statutory criteria in making its decision. The court noted that the appellant's ability to manage their own finances was a critical factor. The evidence presented to the Tribunal was scrutinised to determine if it was adequate to justify the imposition of a financial management order. The court assessed whether the Tribunal had considered all relevant factors and exercised its discretion in a manner consistent with the statutory framework.

The Appeal Panel concluded that the Tribunal had not properly exercised its discretion in making the financial management order. The Panel found that the evidence provided was not sufficient to justify the imposition of such an order. As a result, the appeal was allowed, and the decision of the Guardianship Tribunal was set aside. The matter was remitted to the Tribunal for reconsideration, with instructions to consider any new evidence that may have arisen since the original decision, as well as any additional evidence the Tribunal deemed relevant.

The court made several orders to formalise the outcome. The decision and order of the Guardianship Tribunal made on 17 September 2007 were set aside. The case was remitted to the Guardianship Tribunal to be heard and decided again, taking into account the reasons for the appeal decision and any new or additional evidence. This ensures that the Tribunal has the opportunity to reconsider the matter with a fresh perspective and a proper application of the statutory criteria.

Orders

Orders of the court

The decision of the Appeal Panel is that the appeal is allowed. We make the following orders: 1. Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007 2. The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made and (ii) any additional evidence that the Guardianship Tribunal decides to consider.

Background

Background to the litigation

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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:	DG v Public Guardian and ors [2008] NSWADTAP 58
PARTIES:	APPELLANT DG FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Maris Tonkin FOURTH RESPONDENT HZ DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078016
HEARING DATES:	14 August 2008
SUBMISSIONS CLOSED:	14 August 2008
DATE OF DECISION:	3 September 2008
BEFORE:	Britton A - Deputy President; Millar J - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Guardianship order - review - financial management order - making
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Review of a Guardianship Order C/37476
FILE NUMBER UNDER APPEAL:	2007/5747
DATE OF DECISION UNDER APPEAL:	09/17/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 CZ v Public Guardian & ors [2008] NSWADTAP 42 House v The King (1936) 55 CLR 499 IF v IG & Ors [2004] NSWADTAP 3 Ms A v Public Guardian & Ors [2006] NSWADTAP 55 R v Australian Broadcasting Tribunal; Ex p. Hardiman (1980) 144 CLR 13
REPRESENTATION:	APPELLANT M Armstrong, barrister instructed by B Ramjam guardian ad liten FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT In person DECISION MAKER E Cho, legal officer COUNSEL ASSISTING A Johnson, solicitor
ORDERS:	The decision of the Appeal Panel is that the appeal is allowed. We make the following orders: 1. Set aside the decision and order of the Guardianship Tribunal made on 17 September 2007 2. The matter be remitted to the Guardianship Tribunal to be heard and decided again in accordance with these Reasons for Decision as well as (i) any evidence about matters relevant to that determination, that have occurred since the decision under appeal was made and (ii) any additional evidence that the Guardianship Tribunal decides to consider.