GCR v NSW Trustee and Guardian - [2024] NSWCATAD 130

Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: GCR v NSW Trustee and Guardian [2024] NSWCATAD 130
Hearing dates: 12 April 2024
Date of orders: 20 May 2024
Decision date: 20 May 2024
Jurisdiction: Administrative and Equal Opportunity Division
Before: L Bryant, Senior Member
Decision:
Decision of NSW Trustee and Guardian is affirmed.

Catchwords:
ADMINISTRATIVE LAW – review of decision made under NSW Trustee and Guardian Act 2009 – interests and welfare of protected person – decision to decline payment of airfares from UK for granddaughter and two great granddaughters from protected estate to visit protected person in Australia – whether a “gift” under section 76 – whether made in compliance with general principles in NSW Trustee and Guardian Act 2009, section 39 – greater weight to principle 39(e) where high level of family conflict

Legislation Cited:
Administrative Decisions Review Act 1997 (NSW), ss 9, 63, 65
Civil and Administrative Tribunal Act 2013 (NSW), s 30
Guardianship Act 1987 (NSW), s 4
Guardianship and Administration Act 2019 (Vic) ss 3(1), 47
NSW Trustee and Guardian Act 2009 (NSW) ss 39, 59, 62, 70, 76
Powers of Attorney Act 2003 (NSW) Schedule 3

Cases Cited:
Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39
G v G (No. 2) [2020] NSWSC 818
Re PDC [2021] NSWSC 1701
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

Texts Cited:
Professor Gino Dal Pont, Powers of Attorney, 2nd Ed 2014

Category: Principal judgment
Parties: GCR (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Applicant (self-represented)
R Stormont (NSW Trustee and Guardian) (Respondent)

File Number(s): 2023/00448306
Publication restriction: Publication of the name of the Applicant (GCR), or the managed person (Mrs X) is prohibited. Note: 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 identification of the person.

REASONS FOR DECISION

The decision to be reviewed

This case concerned a decision of the NSW Public Trustee and Guardian (“NSWTG”) to decline to provide funds from the estate (“the managed estate”) of the managed person, who I shall refer to as Mrs X, under a financial management order to pay the return airfares of her granddaughter and two great granddaughters from the UK to visit her in Australia (“the respondent’s decision”).
The applicant (“GCR”), who is the daughter of Mrs X, seeks for the NSWTG’s decision to be reviewed by the Tribunal. The granddaughter (“GD”) and two great granddaughters (“GGD1” and “GGD2” respectively) of Mrs X the subject of the respondent’s decision are the daughter and granddaughters of GCR. Mrs X is 103 years old.

The issues

The issues to be decided in this case are:

Does the NSWTG have the power to provide funds for the airfares from the managed estate?

If so, is the decision to decline to provide the funds for the airfares the correct and preferable decision?

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: [2024] NSWCATAD 130
Decision Date: 20 May 2024

CaseChat Overview and Summary

GCR brought a review of a decision made by the NSW Trustee and Guardian to decline payment of airfares from the protected estate for the granddaughter and two great granddaughters of the protected person to visit in Australia. The protected person, due to a cognitive impairment, was subject to the care and management of the Trustee and Guardian. The dispute centred on whether the requested airfares constituted a “gift” under section 76 of the Trustee and Guardian Act 2009, and whether the decision was made in compliance with the general principles outlined in section 39 of the Act.

The court examined whether the decision to decline payment was lawful, rational and procedurally fair. A significant issue was whether the decision appropriately balanced the conflicting interests of the protected person and the family members, particularly in light of the high level of family conflict. The court also had to determine if the decision-making process gave adequate consideration to the welfare and interests of the protected person, and if it aligned with the principles of the Act.

In affirming the decision of the NSW Trustee and Guardian, the court found that the decision to decline payment was lawful and appropriately balanced the interests of the protected person and the family members. The court held that the decision was rational, as it took into account the high level of family conflict and appropriately weighed the principle of acting in the best interests of the protected person. The decision-making process was deemed to be procedurally fair, as it involved consideration of the protected person’s welfare and interests, in line with the principles of the Trustee and Guardian Act 2009.

The final orders of the court were to affirm the decision of the NSW Trustee and Guardian. The court found that the decision to decline payment of the airfares was lawful, rational, and procedurally fair, and therefore upheld the decision.

Orders

Orders of the court

Decision of NSW Trustee and Guardian is affirmed.

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:	GCR v NSW Trustee and Guardian [2024] NSWCATAD 130
Hearing dates:	12 April 2024
Date of orders:	20 May 2024
Decision date:	20 May 2024
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	L Bryant, Senior Member
Decision:	Decision of NSW Trustee and Guardian is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review of decision made under NSW Trustee and Guardian Act 2009 – interests and welfare of protected person – decision to decline payment of airfares from UK for granddaughter and two great granddaughters from protected estate to visit protected person in Australia – whether a “gift” under section 76 – whether made in compliance with general principles in NSW Trustee and Guardian Act 2009, section 39 – greater weight to principle 39(e) where high level of family conflict
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), ss 9, 63, 65 Civil and Administrative Tribunal Act 2013 (NSW), s 30 Guardianship Act 1987 (NSW), s 4 Guardianship and Administration Act 2019 (Vic) ss 3(1), 47 NSW Trustee and Guardian Act 2009 (NSW) ss 39, 59, 62, 70, 76 Powers of Attorney Act 2003 (NSW) Schedule 3
Cases Cited:	Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39 G v G (No. 2) [2020] NSWSC 818 Re PDC [2021] NSWSC 1701 Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31
Texts Cited:	Professor Gino Dal Pont, Powers of Attorney, 2nd Ed 2014
Category:	Principal judgment
Parties:	GCR (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Applicant (self-represented) R Stormont (NSW Trustee and Guardian) (Respondent)
File Number(s):	2023/00448306
Publication restriction:	Publication of the name of the Applicant (GCR), or the managed person (Mrs X) is prohibited. Note: 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 identification of the person.