GW v Protective Commissioner - [2003] NSWADTAP 61

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CITATION: GW v Protective Commissioner & Ors [2003] NSWADTAP 61

PARTIES: APPELLANT
In person
FIRST RESPONDENT
Protective Commissioner
SECOND RESPONDENT
HD
THIRD RESPONDENT
GX
FOURTH RESPONDENT
Guardianship Tribunal

FILE NUMBER: 038007

HEARING DATES: 13/11/03

SUBMISSIONS CLOSED: 11/13/2003

DATE OF DECISION:
11/28/2003

DECISION UNDER APPEAL:
Guardianship Tribunal 2001/5986; 2002/6002

BEFORE: Hennessy N - Magistrate (Acting President); Leal S - Judicial Member; Houlahan L - Member

CATCHWORDS: Financial management order - making - Leave to appeal on other grounds - No error of law

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/10432

DATE OF DECISION UNDER APPEAL: 05/23/2003

LEGISLATION CITED: Administrative Decisions Tribunal (General) Regulation 1998
Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Mental Health Act 1990
Protected Estates Act 1983

CASES CITED: K v K [2000] NSWSC 1052
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13

REPRESENTATION: APPELLANT
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
In person
THIRD RESPONDENT
In person
FOURTH RESPONDENT
E Cho, legal officer

ORDERS: 1 The decision of the Guardianship Tribunal made on 23 May 2003 is affirmed.; 2 Appeal dismissed

(1A) This section applies only to the following:

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(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:

(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 identification of the person.

1 GW is a 43 year old man who lives with his mother. The Guardianship Tribunal made two interim financial management orders for periods of 6 months each in respect of GW. The reason for those orders was to wind up a substantial cattle enterprise, which had been run by GW. His ex-wife (GX), and the family accountant (HD) jointly applied to the Tribunal for a financial management order under the Protected Estates Act 1993.

2 On 23 May 2003, the Guardianship Tribunal made the following orders:

The estate of…

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 GW v Protective Commissioner

Details

AGLC: GW v Protective Commissioner [2003] NSWADTAP 61
Case: [2003] NSWADTAP 61
Decision Date: 11/28/2003

CaseChat Overview and Summary

The case of GW v Protective Commissioner concerns the application of a financial management order. The dispute arose from the Tribunal's decision to affirm a financial management order concerning an individual, GW, who was found to be incapable of managing their own finances. The decision was challenged by GW, and the matter was brought before the court to determine whether the Tribunal had made an error of law in affirming the order.

The primary legal issue before the court was whether the Guardianship Tribunal had erred in law by affirming a financial management order for GW, without sufficient evidence of GW's incapacity. The court was required to assess the process and findings of the Tribunal, and determine if the decision was legally sound.

The court found that the Guardianship Tribunal had not made an error of law in affirming the financial management order. The court noted that the Tribunal had followed the correct procedure, and had made its decision based on sufficient evidence of GW's incapacity to manage their own finances. The court held that the order was appropriate in the circumstances, and affirmed the decision of the Tribunal. The court also dismissed the appeal, finding that there was no other ground on which to allow the appeal.

The final orders of the court were to affirm the decision of the Guardianship Tribunal made on 23 May 2003, and to dismiss the appeal. The court did not find any error of law in the Tribunal's decision, and therefore upheld the financial management order.

Orders

Orders of the court

1 The decision of the Guardianship Tribunal made on 23 May 2003 is affirmed.; 2 Appeal dismissed

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	GW v Protective Commissioner & Ors [2003] NSWADTAP 61
PARTIES:	APPELLANT In person FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT HD THIRD RESPONDENT GX FOURTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038007
HEARING DATES:	13/11/03
SUBMISSIONS CLOSED:	11/13/2003
DATE OF DECISION:	11/28/2003
DECISION UNDER APPEAL:	Guardianship Tribunal 2001/5986; 2002/6002
BEFORE:	Hennessy N - Magistrate (Acting President); Leal S - Judicial Member; Houlahan L - Member
CATCHWORDS:	Financial management order - making - Leave to appeal on other grounds - No error of law
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/10432
DATE OF DECISION UNDER APPEAL:	05/23/2003
LEGISLATION CITED:	Administrative Decisions Tribunal (General) Regulation 1998 Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Mental Health Act 1990 Protected Estates Act 1983
CASES CITED:	K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT In person FOURTH RESPONDENT E Cho, legal officer
ORDERS:	1 The decision of the Guardianship Tribunal made on 23 May 2003 is affirmed.; 2 Appeal dismissed