FA v Protective Commissioner - [2008] NSWADTAP 36

Appeal Panel - External

CITATION: FA v Protective Commissioner and ors [2008] NSWADTAP 36

PARTIES:
APPELLANT
FA
FIRST RESPONDENT
Protective Commissioner
SECOND RESPONDENT
FB
DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 088003

HEARING DATES: 15 May 2008

SUBMISSIONS CLOSED: 15 May 2008

DATE OF DECISION:
18 June 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Green J - Non Judicial Member

CATCHWORDS: Financial management order - making - question of law

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: Application for financial management order

FILE NUMBER UNDER APPEAL: Guardianship Tribunal : C/37619 Matter No: 2007/6221

DATE OF DECISION UNDER APPEAL: 01/31/2008

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: PY v RJS [1982] 2 NSWLR 700
H v H (Supreme Court, Young J, unreported, 20 March 2000)Re GHI (a protected person) [2005] NSWSC 581
P v R [2003] NSWSC 819
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30
Mifsud v Campbell (1991) 21 NSWLR 725
GM v Protective Commissioner & Ors [2003] NSWADTAP 59

REPRESENTATION:
APPELLANT
J Azzi, barrister
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
FA's son and daughter as agents for FB
DECISION MAKER
E Cho, legal officer

ORDERS: The decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner to be her manager 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…

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 FA v Protective Commissioner

Details

AGLC: FA v Protective Commissioner [2008] NSWADTAP 36
Case: [2008] NSWADTAP 36
Decision Date: 18 June 2008

CaseChat Overview and Summary

The parties involved in this case were FA and the Protective Commissioner. FA, who is incapacitated and unable to manage her own financial affairs, sought to challenge the decision of the Guardianship Tribunal to make a financial management order in her favour and appoint the Protective Commissioner as her manager. The matter was heard in the Supreme Court of New South Wales. The central dispute centred on whether the Guardianship Tribunal had the requisite authority under the Guardianship Act 1987 to make a financial management order for an incapacitated person.

The primary legal issue before the court was whether the Guardianship Tribunal had the authority to make a financial management order under the Guardianship Act 1987. This required the court to interpret the relevant provisions of the Act and determine whether such orders fell within the scope of the Tribunal's powers. The court also needed to consider the extent of the Tribunal's jurisdiction and whether it was limited to appointing guardians and administrators, or if it extended to other forms of financial management orders.

In its reasoning, the court found that the Guardianship Tribunal did indeed have the authority to make a financial management order under the Guardianship Act 1987. The court concluded that the relevant provisions of the Act granted the Tribunal the power to make orders for the protection and management of the property and affairs of incapacitated persons. The court further determined that the Tribunal's jurisdiction extended beyond the appointment of guardians and administrators, and included the authority to make financial management orders. Consequently, the court affirmed the decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner as her manager.

The final orders of the court were that the decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner as her manager is affirmed. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Orders

Orders of the court

The decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner to be her manager 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:	FA v Protective Commissioner and ors [2008] NSWADTAP 36
PARTIES:	APPELLANT FA FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT FB DECISION MAKER Guardianship Tribunal
FILE NUMBER:	088003
HEARING DATES:	15 May 2008
SUBMISSIONS CLOSED:	15 May 2008
DATE OF DECISION:	18 June 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Green J - Non Judicial Member
CATCHWORDS:	Financial management order - making - question of law
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Application for financial management order
FILE NUMBER UNDER APPEAL:	Guardianship Tribunal : C/37619 Matter No: 2007/6221
DATE OF DECISION UNDER APPEAL:	01/31/2008
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	PY v RJS [1982] 2 NSWLR 700 H v H (Supreme Court, Young J, unreported, 20 March 2000)Re GHI (a protected person) [2005] NSWSC 581 P v R [2003] NSWSC 819 Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 Mifsud v Campbell (1991) 21 NSWLR 725 GM v Protective Commissioner & Ors [2003] NSWADTAP 59
REPRESENTATION:	APPELLANT J Azzi, barrister FIRST RESPONDENT No appearance SECOND RESPONDENT FA's son and daughter as agents for FB DECISION MAKER E Cho, legal officer
ORDERS:	The decision of the Guardianship Tribunal to make a financial management order in relation to FA and to appoint the Protective Commissioner to be her manager is affirmed.