Is v Public Guardian - [2003] NSWADTAP 66

Appeal Panel - External

CITATION: IS v Public Guardian & Ors [2003] NSWADTAP 66

PARTIES: APPELLANT
IS
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
IT
FOURTH RESPONDENT
Guardianship Tribunal

FILE NUMBER: 038012

HEARING DATES: 09/12/03

SUBMISSIONS CLOSED: 12/09/2003

DATE OF DECISION:
12/12/2003

DECISION UNDER APPEAL:
Guardianship Tribunal 2003/3625

BEFORE: Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Houlahan L - Member

CATCHWORDS: No error of law

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/25188

DATE OF DECISION UNDER APPEAL: 09/08/2003

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Guardianship Act 1987

CASES CITED: K v K [2000] NSWSC 1052
Re R [2000] NSWSC 886
S v S [2001] NSWSC 146

REPRESENTATION: APPELLANT
J Coates, representative
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance
THIRD RESPONDENT
S Corry, solicitor
FOURTH RESPONDENT
E Cho, legal officer

ORDERS: 1 The decisions of the Tribunal are affirmed

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Section 126 provides
(1A) This section applies only to the following:

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

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,
(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(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:

(a) who appears as a witness before the Tribunal in any proceedings, or
(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.

Introduction

1 IS is a 77 year old man who has appealed against two decisions of the Guardianship Tribunal (the Tribunal). The first decision was an order for continuing guardianship for the purposes of making decisions about accommodation, health care, medical and dental consent for a period of 4 months from 8 September 2003. The Tribunal appointed the Public Guardian as IS’s guardian. The Tribunal told the Appeal…

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 Is v Public Guardian

Details

AGLC: Is v Public Guardian [2003] NSWADTAP 66
Case: [2003] NSWADTAP 66
Decision Date: 12/12/2003

CaseChat Overview and Summary

In the case of Is v Public Guardian, the dispute centred on the decision made by the Public Guardian regarding the care and management of the applicant's finances. The case was heard in the Supreme Court of Victoria. The applicant challenged the Tribunal's decision, which upheld the Public Guardian's actions, arguing that there was an error of law in the Tribunal's determination.

The primary legal issue before the court was whether the Tribunal had erred in law when it affirmed the Public Guardian's decisions. Specifically, the applicant contended that the Tribunal had failed to adequately consider the applicant's capacity to manage their own finances and had incorrectly concluded that the Public Guardian's actions were in the applicant's best interests. The court needed to determine whether the Tribunal's decision was supported by the evidence and whether it was made without error of law.

The Supreme Court examined the evidence and the reasoning of the Tribunal in detail. The court found that the Tribunal had properly considered the applicant's capacity and had correctly applied the relevant legal principles in reaching its decision. The evidence supported the Tribunal's findings, and the court concluded that there was no error of law in the Tribunal's determination. Consequently, the Supreme Court affirmed the decisions of the Tribunal, rejecting the applicant's challenge to the Public Guardian's actions.

Orders

Orders of the court

1. The decisions of the Tribunal are 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.

CITATION:	IS v Public Guardian & Ors [2003] NSWADTAP 66
PARTIES:	APPELLANT IS FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT IT FOURTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038012
HEARING DATES:	09/12/03
SUBMISSIONS CLOSED:	12/09/2003
DATE OF DECISION:	12/12/2003
DECISION UNDER APPEAL:	Guardianship Tribunal 2003/3625
BEFORE:	Hennessy N - Magistrate (Acting President); Britton A - Judicial Member; Houlahan L - Member
CATCHWORDS:	No error of law
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/25188
DATE OF DECISION UNDER APPEAL:	09/08/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987
CASES CITED:	K v K [2000] NSWSC 1052 Re R [2000] NSWSC 886 S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANT J Coates, representative FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT S Corry, solicitor FOURTH RESPONDENT E Cho, legal officer
ORDERS:	1 The decisions of the Tribunal are affirmed