FX v NSW Trustee and Guardian (GD)

Appeal Panel - Internal

CITATION:

FX v NSW Trustee and Guardian (GD) [2009] NSWADTAP 61

PARTIES:

FIRST APPELLANT
FX

SECOND APPELLANT
FW

RESPONDENT
NSW Trustee and Guardian

FILE NUMBER:

099007

HEARING DATES:

14 October 2009

SUBMISSIONS CLOSED:

14 October 2009

 
DATE OF DECISION: 

23 October 2009

BEFORE:

O'Connor K - DCJ (President); Leal S - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS:

Protected Person - Decision to Sell Business - Appeal - New Material - Extended to Merits - Appeal Allowed

DECISION UNDER APPEAL:

FW and FX v Protective Commissioner [2009] NSWADT 36

FILE NUMBER UNDER APPEAL:

083133

DATE OF DECISION UNDER APPEAL:

02/19/2009

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997

CASES CITED:

FW and FX v Protective Commissioner [2009] NSWADT 36

REPRESENTATION:

FIRST APPELLANT
In person

SECOND APPELLANT
–

RESPONDENT
T Tunbridge, legal officer

ORDERS:

1. Leave to extend the appeal to the merits granted.
2. Appeal allowed.
3. Decision of NSW Trustee to wind up the protected person’s farming business set aside.

REASONS FOR DECISION

1 The NSW Trustee and Guardian (‘NSW Trustee’) (formerly Protective Commissioner) has, since 17 April 2002, been the financial manager of the affairs of a protected person, FW. FW and her son, FX, each own a half share in a farm. She is the owner of the business of the farm.

2 The Trustee decided on 25 February 2008 to wind up the business for the reason that ‘as sole trader FW is personally liable for all debts and her personal property may be vulnerable for debts and other business liabilities.’ The son, FX, made an application to the Tribunal for review of the decision in which both he and his mother were named as applicants. The filing included a letter written by his mother supporting the application for review. By decision delivered 19 February 2009, the Tribunal affirmed the decision: see FW and FX v Protective Commissioner [2009] NSWADT 36.

3 FX now appeals, as allowed by ss 112 and 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). His notice of appeal names his mother as a party. There is no letter from his mother similar to the one that accompanied the original review application. In our view, FX is the practical appellant in this matter. The Appeal Panel made an attempt to have FW independently represented for the purpose of the appeal, but that proved ineffective, as explained below.

4 The decision of 25 February 2008 has been stayed pending the resolution of these proceedings. It has now been stayed for over 18 months.

5 In this instance the appeal has been before the Appeal Panel on three separate occasions. On the first two occasions (1 May 2009, 21 July 2009), the presiding member was part-time Deputy President Handley, and the appeal was adjourned part-heard. Following his resignation to take up a full-time position with a Commonwealth Tribunal, the President, Judge O’Connor, has replaced him as the presiding member: see ADT Act, s 79(1).

6 An appeal…