He v Murarotta - [2009] NSWADTAP 37

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CITATION: HE v Murarotta [2009] NSWADTAP 37

PARTIES:
APPELLANT
HE
FIRST RESPONDENT
Christen Murarotto
SECOND RESPONDENT
HF
THIRD RESPONDENT
Public Guardian
FOURTH RESPONDENT
Protective Commissioner

FILE NUMBER: 088008

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 19 May 2009

EXTEMPORE DECISION DATE: 16 June 2009

DATE OF DECISION:
18 June 2009

BEFORE: Handley R - Deputy President; Leal S - Judicial Member; Field B - Non-Judicial Member

CATCHWORDS: Guardianship and Financial Management Orders – review – procedural fairness

DECISION UNDER APPEAL: Guardianship Tribunal

FILE NUMBER UNDER APPEAL: C/38676; matter nos 2008/1136 and 2006/1137

DATE OF DECISION UNDER APPEAL: 03/06/2008

LEGISLATION CITED: Guardianship Act 1987
Protected Estates Act 1983
Administrative Decisions Tribunal Act 1997

CASES CITED: TP v TR and ors (No 2) [2006] NSWADTAP 12
WH v Public Guardian [2007] NSWADTAP 8G
S v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52
LA v Protective Commissioner & ors [2004] NSWADTAP 39

REPRESENTATION:
APPLICANT
D Patch, barrister
FIRST and SECOND RESPONDENT
No appearances
THIRD RESPONDENT
E Cho, legal officer
FOURTH RESPONDENT
G Shirm, solicitor

ORDERS: The orders of the Guardianship Tribunal dated 6 March 2008 are set aside and the matter is remitted to the Tribunal for reconsideration in accordance with these Reasons.

1 The appellant, HE, has appealed against a decision of the Guardianship Tribunal dated 6 March 2008 appointing the Public Guardian as HE’s guardian for a period of 12 months and appointing the Protective Commissioner as the financial manager of HE’s estate. He contends that he was denied procedural fairness.

Background

2 HE is a 58 year old man who has been diagnosed as suffering from Lewy body dementia, a form of atypical Parkinson's disease. In a report dated 22 January 2009, HE’s Treating Neurologist, Dr Raymond Schwartz said:

“Whilst [HE] has a probably [sic] Lewy body dementia, and a background or probable premorbid personality disorder, he still retains reasonable cognition, is able to give a good account of his history and discuss issues in a sensible manner. He scored 26/30 on a Felstein minimental state examination today mindful that this does not address issues of frontal lobe function etc.”

3 HE was a high school teacher for many years and was diagnosed as suffering from Parkinson’s disease at the age of 42. He retired at the age of 48. Until recently, HE, who owns his own home, was cared for by his brother (the Second Respondent, HF), with assistance from their mother who is now in her 80s. According to reports before the Guardianship Tribunal (for example, a report of Christen Murarotta, Social Worker (the First Respondent), dated 26 February 2008, and of Megan Forbes, Clinical Psychologist, dated November 2007), HE has in recent years sometimes suffered from delusions and has become aggressive towards his family and difficult to manage, resulting in a number of hospital admissions.

4 On 22 February 2008, Ms Murarotta applied to the Guardianship Tribunal for the appointment of a guardian and financial manager. On 6 March 2008, the…

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 He v Murarotta

Details

AGLC: He v Murarotta [2009] NSWADTAP 37
Case: [2009] NSWADTAP 37
Decision Date: 18 June 2009

CaseChat Overview and Summary

In the case of He v Murarotta, the respondent sought a review of orders made by the Guardianship Tribunal concerning the appointment of a financial manager for the applicant. The dispute centred on the adequacy of the Tribunal’s consideration of procedural fairness in its decision-making process. The matter was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the Guardianship Tribunal had acted in a manner that was procedurally unfair in its decision to appoint a financial manager. This involved assessing whether the Tribunal had adhered to the principles of natural justice and procedural fairness by providing the applicant with a fair opportunity to present their case. The court was required to determine if the Tribunal had sufficiently considered the applicant’s submissions and if any procedural errors had affected the outcome.

In its decision, the court held that the Guardianship Tribunal had indeed failed to observe procedural fairness. The Tribunal had not adequately considered the applicant's submissions and had proceeded to make decisions without giving the applicant a fair opportunity to respond to specific allegations. The court found that these procedural shortcomings meant the Tribunal's decision was flawed. As a result, the court set aside the orders of the Guardianship Tribunal and remitted the matter back to the Tribunal for reconsideration in accordance with the court's reasons.

The court's final order was that the orders of the Guardianship Tribunal dated 6 March 2008 be set aside, and the matter be remitted to the Tribunal for reconsideration in light of the court's findings on procedural fairness.

Orders

Orders of the court

The orders of the Guardianship Tribunal dated 6 March 2008 are set aside and the matter is remitted to the Tribunal for reconsideration in accordance with 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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CITATION:	HE v Murarotta [2009] NSWADTAP 37
PARTIES:	APPELLANT HE FIRST RESPONDENT Christen Murarotto SECOND RESPONDENT HF THIRD RESPONDENT Public Guardian FOURTH RESPONDENT Protective Commissioner
FILE NUMBER:	088008
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	19 May 2009
EXTEMPORE DECISION DATE:	16 June 2009
DATE OF DECISION:	18 June 2009
BEFORE:	Handley R - Deputy President; Leal S - Judicial Member; Field B - Non-Judicial Member
CATCHWORDS:	Guardianship and Financial Management Orders – review – procedural fairness
DECISION UNDER APPEAL:	Guardianship Tribunal
FILE NUMBER UNDER APPEAL:	C/38676; matter nos 2008/1136 and 2006/1137
DATE OF DECISION UNDER APPEAL:	03/06/2008
LEGISLATION CITED:	Guardianship Act 1987 Protected Estates Act 1983 Administrative Decisions Tribunal Act 1997
CASES CITED:	TP v TR and ors (No 2) [2006] NSWADTAP 12 WH v Public Guardian [2007] NSWADTAP 8G S v Protective Commissioner and Guardianship Tribunal [2003] NSWADTAP 52 LA v Protective Commissioner & ors [2004] NSWADTAP 39
REPRESENTATION:	APPLICANT D Patch, barrister FIRST and SECOND RESPONDENT No appearances THIRD RESPONDENT E Cho, legal officer FOURTH RESPONDENT G Shirm, solicitor
ORDERS:	The orders of the Guardianship Tribunal dated 6 March 2008 are set aside and the matter is remitted to the Tribunal for reconsideration in accordance with these Reasons.