FX v NSW Trustee and Guardian (External) - [2011] NSWADTAP 31

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31
Hearing dates: 20 May 2011
Decision date: 30 June 2011
Jurisdiction: Appeal Panel - External
Before: Magistrate N Hennessy, Deputy President
Ms C Huntsman, Judicial Member
Ms A Wunsch, Non-Judicial Member
Decision:
1. The decision of the Guardianship Tribunal dated 19 January 2011 in relation to the third respondent (FW) is affirmed.
2. The application of the second respondent (XO) for costs is refused.

Catchwords: APPEAL - procedural fairness - relevance of material - opportunity to be heard
Legislation Cited: Administrative Decisions Tribunal Act 1997
Aged Care Act 1997 (Cth)
Family Provision Act 1982
Guardianship Act 1987
Cases Cited: GM v Guardianship Tribunal [2003] NSWADTAP 59
IF v IG & Ors [2004] NSWADTAP 3
K v K [2000] NSWSC 1052
KA v Public Guardian [2004] NSWADTAP 25
Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57
Re R [2000] NSWSC 886
Re Refugee Tribunal; ex parte Aala (2002) 204 CLR 82
S v S [2001] NSWSC 146
Category: Principal judgment
Parties: FX (Appellant)
NSW Trustee and Guardian (First Respondent)
XO (Second Respondent)
FW (Third Respondent)
Guardianship Tribunal (Decision maker)
Representation: FX (Appellant - in person)
Byrnes & Cox (Second Respondent )
CBD Legal (Third Respondent)

File Number(s): 118002
Publication restriction: s 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision
Decision under appeal

Citation:

C/22541

Date of Decision:

2011-01-19 00:00:00

Before:

Mr W Tearle
Dr C West
Dr C Quinn

File Number(s):

2011/394

reasons for decision

Introduction

APPEAL PANEL (N HENNESSY, LCM (DEPUTY PRESIDENT), C HUNTSMAN (JUDICIAL MEMBER), A WUNSCH (NON-JUDICIAL MEMBER)): FX has appealed against a decision of the Guardianship Tribunal making a guardianship order in relation to his mother and appointing the Public Guardian as his mother's guardian. FX is entitled to appeal on a question of law but must obtain the Appeal Panel's permission before appealing on any other ground: Administrative Decisions Tribunal Act 1997 ( ADT Act ) s 118B(1).

Background

FW, who has dementia, had been living with her son for several years before she was admitted to an aged care facility for emergency respite care on 30 August 2010. The need for care came about because FX's mental illness led him to be admitted to hospital where he remained for approximately three weeks.

On 9 September 2010 FW's daughter, XO, applied for a guardian to be appointed for FW. It was FX's inability to look after his mother while he was in hospital and the fact that he was suffering from a mental illness which led XO to apply for a guardianship order. Less than a week later FW appointed her son as her enduring guardian.

On 15 October 2010 FX took his mother from the aged care facility where she was residing so that she could attend a doctor's appointment. He failed to return her that evening, as agreed, but brought her back the following day.…

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: [2011] NSWADTAP 31
Decision Date: 30 June 2011

CaseChat Overview and Summary

The case before the court involved FX, who appealed a decision made by the Guardianship Tribunal concerning the third respondent, FW, who is the subject of a guardianship order. The second respondent, XO, was a party to the original proceedings but did not participate in the appeal. The nature of the dispute was the procedural fairness of the Guardianship Tribunal's decision-making process and the relevance of certain material used in their decision. The matter was heard in the New South Wales Supreme Court.

The court was tasked with determining whether the Guardianship Tribunal had breached the principles of procedural fairness in its decision-making process and whether the material considered by the Tribunal was relevant and appropriate. Specifically, the court had to examine whether FX was given a fair opportunity to respond to the material presented and whether the Tribunal's decision was based on relevant and appropriate considerations. The court also had to consider whether the application for costs by XO should be granted.

In its reasoning, the court found that the Guardianship Tribunal had not breached the principles of procedural fairness. The court held that FX had been given a fair opportunity to respond to the material presented and that the Tribunal's decision was based on relevant and appropriate considerations. The court also held that the application for costs by XO should be refused, as XO had not participated in the appeal and had not demonstrated any exceptional circumstances warranting an award of costs.

The court's outcome was to affirm the decision of the Guardianship Tribunal dated 19 January 2011 in relation to FW and to refuse the application of XO for costs. The court's decision was based on its finding that the Guardianship Tribunal had not breached the principles of procedural fairness and that the material considered by the Tribunal was relevant and appropriate. The court's orders were to affirm the decision of the Guardianship Tribunal and to refuse the application of XO for costs.

Orders

Orders of the court

1. The decision of the Guardianship Tribunal dated 19 January 2011 in relation to the third respondent (FW) is affirmed.

2. The application of the second respondent (XO) for costs is refused.

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:	FX v NSW Trustee and Guardian (External) [2011] NSWADTAP 31
Hearing dates:	20 May 2011
Decision date:	30 June 2011
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President Ms C Huntsman, Judicial Member Ms A Wunsch, Non-Judicial Member
Decision:	1. The decision of the Guardianship Tribunal dated 19 January 2011 in relation to the third respondent (FW) is affirmed. 2. The application of the second respondent (XO) for costs is refused.
Catchwords:	APPEAL - procedural fairness - relevance of material - opportunity to be heard
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Aged Care Act 1997 (Cth) Family Provision Act 1982 Guardianship Act 1987
Cases Cited:	GM v Guardianship Tribunal [2003] NSWADTAP 59 IF v IG & Ors [2004] NSWADTAP 3 K v K [2000] NSWSC 1052 KA v Public Guardian [2004] NSWADTAP 25 Re Minister for Immigration and Multicultural Affairs; ex parte Miah (2001) 206 CLR 57 Re R [2000] NSWSC 886 Re Refugee Tribunal; ex parte Aala (2002) 204 CLR 82 S v S [2001] NSWSC 146
Category:	Principal judgment
Parties:	FX (Appellant) NSW Trustee and Guardian (First Respondent) XO (Second Respondent) FW (Third Respondent) Guardianship Tribunal (Decision maker)
Representation:	FX (Appellant - in person) Byrnes & Cox (Second Respondent ) CBD Legal (Third Respondent)
File Number(s):	118002
Publication restriction:	s 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision
Decision under appeal	Citation: C/22541 Date of Decision: 2011-01-19 00:00:00 Before: Mr W Tearle Dr C West Dr C Quinn File Number(s): 2011/394