Ehk v NSW Trustee and Guardian - [2020] NSWCATAD 187

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EHK v NSW Trustee and Guardian [2020] NSWCATAD 187
Hearing dates: On the papers
Date of orders: 23 July 2020
Decision date: 23 July 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
(1) The application is dismissed under s55(1) (b) of the Civil and Administrative Tribunal Act, 2013 (NSW).
(2) The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

Catchwords:
ADMINISTRATIVE REVIEW- Decision by NSW Trustee and Guardian as financial manager under Guardianship Tribunal order- application by NSW Trustee and Guardian for dismissal - application misconceived and lacking in substance, not a reviewable decision. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b. Dismissal order.

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013, (NSW)
Civil and Administrative Tribunal Rules 2014 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
NSW Trustee and Guardian Regulation 2017

Cases Cited:
DOI v New South Wales Trustee and Guardian [2019] NSWCATAD 3
DXG v Public Guardian [2019] NSWCATAD 257
DXG v Public Guardian [2020] NSWCATAD 129

Category: Procedural and other rulings
Parties: EHK (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
Applicant (Self Represented)
M Rice (Respondent)

File Number(s): 2020/00126458
Publication restriction: The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). This includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of the Applicant.

REASONS FOR DECISION

What is this matter about?

These proceedings concerned an application lodged in the Tribunal by EHK on 23 April 2020 to review a decision of the NSW Trustee and Guardian (TaG).
On 28 May TaG filed an application in the Tribunal seeking the dismissal of EHK’s application for review. The Tribunal had to decide whether or not EHK’s application should be dismissed.
For the reasons that follow, the Tribunal has decided to dismiss EHK’s application to review a decision of TaG.
At the Directions Hearing on 2 June 2020 the Tribunal imposed a timetable for EHK to file any material in response to TaG’s application for dismissal of EHK’s application. The Tribunal also decided that TaG’s Application for dismissal should be determined on the papers – that is without a hearing.
The Tribunal also noted at that time that EHK was detained and unable to provide instructions to his legal representative about the application.
EHK did not provide a response to TaG's application to dismiss his application to review a decision made by TaG.
In this decision the Tribunal refers to EHK the Applicant for review as the Applicant and the NSW Trustee and Guardian (TaG) as the Respondent.
The Tribunal made an order under section 64 of the Civil and Administrative Tribunal Act 2013 (CATA) suppressing referral to the Applicant’s name and refers to the Applicant as “EHK”.

Background to…

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: [2020] NSWCATAD 187
Decision Date: 23 July 2020

CaseChat Overview and Summary

In the case of Ehk v NSW Trustee and Guardian, the applicant sought to challenge a decision made by the NSW Trustee and Guardian, which had been appointed as a financial manager under a Guardianship Tribunal order. The applicant's primary contention was that the decision was flawed and warranted dismissal. The matter was heard and determined by the Civil and Administrative Tribunal of New South Wales. The tribunal was tasked with assessing the merits of the applicant's application for administrative review and deciding whether the application was reviewable.

The central legal issue before the tribunal was whether the application for administrative review was validly framed and whether the decision made by the NSW Trustee and Guardian was subject to review under the Civil and Administrative Tribunal Act, 2013 (NSW). The tribunal needed to determine if the application was misconceived and lacking in substance, which would render it non-reviewable. Additionally, the tribunal had to consider the appropriate course of action if the application was indeed found to be misconceived and lacking in substance.

In its decision, the tribunal found that the application for administrative review was indeed misconceived and lacked substance. The tribunal concluded that the decision made by the NSW Trustee and Guardian was not a reviewable decision under the Civil and Administrative Tribunal Act, 2013 (NSW). As a result, the tribunal dismissed the application in accordance with section 55(1)(b) of the Act. Furthermore, the tribunal prohibited the publication of the applicant's name in accordance with section 64(1)(a) of the same Act. These findings and orders reflect the tribunal's assessment of the merits of the application and its determination of the appropriate course of action in this matter.

Orders

Orders of the court

(1) The application is dismissed under s55(1) (b) of the Civil and Administrative Tribunal Act, 2013 (NSW).

(2) The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)

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:	EHK v NSW Trustee and Guardian [2020] NSWCATAD 187
Hearing dates:	On the papers
Date of orders:	23 July 2020
Decision date:	23 July 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	(1) The application is dismissed under s55(1) (b) of the Civil and Administrative Tribunal Act, 2013 (NSW). (2) The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW)
Catchwords:	ADMINISTRATIVE REVIEW- Decision by NSW Trustee and Guardian as financial manager under Guardianship Tribunal order- application by NSW Trustee and Guardian for dismissal - application misconceived and lacking in substance, not a reviewable decision. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b. Dismissal order.
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013, (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) NSW Trustee and Guardian Act 2009 (NSW) NSW Trustee and Guardian Regulation 2017
Cases Cited:	DOI v New South Wales Trustee and Guardian [2019] NSWCATAD 3 DXG v Public Guardian [2019] NSWCATAD 257 DXG v Public Guardian [2020] NSWCATAD 129
Category:	Procedural and other rulings
Parties:	EHK (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: Applicant (Self Represented) M Rice (Respondent)
File Number(s):	2020/00126458
Publication restriction:	The publication of the name of the Applicant is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). This includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of the Applicant.