HA v Protective Commissioner

Case [2009] NSWADTAP 32

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CITATION: HA v Protective Commissioner [2009] NSWADTAP 32
PARTIES:

Appellant:
HA

1st Respondent:
Protective Commissioner

2nd Respondent:
GP

3rd Respondent:
GN

4th Respondent:
GO
FILE NUMBER: 088022
HEARING DATES: 6 April 2009
SUBMISSIONS CLOSED: 6 April 2009
 
DATE OF DECISION: 
20 May 2009
BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Wunsch A - Non-Judical Member
CATCHWORDS: Duty to self-represented parties - procedural fairness - failure to have regard to relevant evidence.
FILE NUMBER UNDER APPEAL: C/35159; 2008/3686
LEGISLATION CITED: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
CASES CITED: Dietrich v the Queen [1992] HCA 57; (1992) 177 CLR 292
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
P v P (1994) 181 CLR 583
Italiano v Carbone [2005] NSWCA 177
Titan v Babic (1994) 49 FCR 546
Dissanayake v Baldacchino [2000] NSWRT 216
Warwick Entertainment Centre Pty Ltd v McKenzie [2000] WASCA 280
Ory and Ory v Betamore Pty Ltd (in liq) (1993) 60 SASR 393
Mitchell v Canal Rocks Beach Resort [2002] WASCA 331
Aboriginal Sacred Sites Protection Authority v Maurice (1986) 65 ALR 247
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Northern Territory of Australia v Herbert & Anor [2002] NTSC 4A and B v Director of Family Services (Unreported, ACT Supreme Court, Higgins J, 31 May 1996)
Re Refugee Review Tribunal; ex parte Aala (2000) 75 ALJR 52
Kioa v West (1985) 159 CLR 550
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Collection House Ltd v Taylor (2004) VSC 49
Rajski v Scitec Corporation Pty Ltd (Unreported, Court of Appeal, 16 June 1986)
REPRESENTATION:

Appellant Representative:
Mr P Livers, solicitor

2nd Resp Representative:
Ms M Chaperlin, solicitor

3rd & 4th Resp Representative:
Mr P Fazio, solicitor

Decision Maker:
Ms E Cho, solicitor
ORDERS: 1. The Tribunal’s decision to confirm the financial management order made on 5 February 2007 in relation to GA is set aside.
2. The matter is remitted to the Tribunal to be re-determined in accordance with these reasons.
3. These orders come into effect 60 days from the date of these reasons.

Introduction

1 GP is an elderly woman of Greek background who lives with her adult daughter, HA. In 2006, the Guardianship Tribunal made a financial management order in relation to GP and appointed HA as the financial manager. Two months later, the Tribunal varied its decision by appointing the Protective Commissioner. HA applied to the Guardianship Tribunal to revoke that order on the basis that her mother had regained capacity. The Guardianship Tribunal found that GP was still incapable of managing her financial affairs and refused to revoke the order. HA has appealed against that decision. The grounds of appeal were firstly, that the Guardianship Tribunal had not allowed HA the opportunity to present evidence from Dr Morfis of GP’s capacity, and secondly, that the Tribunal had made findings when there was no evidence to…

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HA v Protective Commissioner [2009] NSWADTAP 32
Case
[2009] NSWADTAP 32
Decision Date

CaseChat Overview and Summary

The case of HA v Protective Commissioner involves a dispute concerning the fairness of the process followed by the Tribunal in making a financial management order over an individual, GA. The matter was heard in the Federal Court of Australia, where the applicant, HA, challenged the decision of the Tribunal to confirm the financial management order.

The central legal issue before the court was whether the Tribunal had failed to observe procedural fairness in making the financial management order. The applicant argued that the Tribunal did not have regard to all relevant evidence when confirming the order. Specifically, the applicant contended that the Tribunal failed to consider the evidence provided by HA regarding the potential impact of the order on GA's autonomy and dignity.

In reaching its decision, the court examined the applicable legal principles regarding procedural fairness and the duty of care owed to self-represented parties. The court held that the Tribunal had indeed failed to have regard to all relevant evidence when confirming the financial management order. The court found that the Tribunal's failure to consider the evidence provided by HA amounted to a breach of procedural fairness, as it did not afford HA an opportunity to address the concerns raised in the evidence. Consequently, the court set aside the Tribunal's decision and remitted the matter back to the Tribunal for re-determination in accordance with the reasons provided.

The court's orders included setting aside the Tribunal's decision to confirm the financial management order, remitting the matter to the Tribunal for re-determination, and specifying that these orders would come into effect 60 days from the date of the reasons.

Orders

Orders of the court

1. The Tribunal's decision to confirm the financial management order made on 5 February 2007 in relation to GA is set aside. 2. The matter is remitted to the Tribunal to be re-determined in accordance with these reasons. 3. These orders come into effect 60 days from the date of these reasons.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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