FNL v NSW Trustee and Guardian

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FNL v NSW Trustee and Guardian [2023] NSWCATAD 46

Hearing dates:

06 December 2022

Date of orders:

06 March 2023

Decision date:

06 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J S Currie, Senior Member

Decision:

(1)   The decision of NSW Trustee and Guardian is affirmed.

(2)   The time for filing the Application is extended to 28 September 2022.

Catchwords:

ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – review of decision made under NSW Trustee and Guardian Act 2009 – interests and welfare of protected person – decision made “in principle” to approve expenditure from protected estate of a maximum amount for purchase of residence for the protected person – whether a “decision” under Administrative Decisions Review Act 1997, section 6 – whether made in compliance with general principles in NSW Trustee and Guardian Act 2009, section 39 – whether decision correct and preferable – meaning of “preferable”

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 6(1), 7, 9, 55, 58, 63, 65

Civil and Administrative Tribunal Act 2013 (NSW), s 41

Civil and Administrative Tribunal Rules 2014 (NSW), rr 24(3), 24(4)(a)

Guardianship Act 1987 (NSW), ss 4, 25M(1)

NSW Trustee and Guardian Act 2009 (NSW) ss 39, 70

Cases Cited:

DCA v Public Guardian [2017] NSWCATAD 364

Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39

DYH v Public Guardian [2021] NSWCATAD 136

McDonald v Guardianship and Administration Board [1993] 1 VR 521

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22

YG and GG v Minister for Community Services [2002] NSWCA 247

ZWA v ZWB [2022] NSWCATAP 113

Category:

Principal judgment

Parties:

FNL (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
NSW Trustee and Guardian (Respondent)

File Number(s):

2022/00289440

Publication restriction:

The name of the Applicant has been anonymised and publication of that name is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: The name of a person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What is this matter about?

1. Ms FNL, whose estate has been committed to management by NSW Trustee and Guardian (NSW Trustee), seeks administrative review of a decision by NSW Trustee made on 20 June 2022.

2. That decision was to give Ms FNL what NSW Trustee has described as “approval in principle” to the expenditure of up to $680,000 from Ms FNL’s estate to cover the purchase of a suitable residential property for her, and all associated costs.

3. NSW Trustee asserts that this was not a decision to purchase any particular property and that no such decision has yet been made. It says that the approval in principle was an attempt to provide some initial guide…