IUO - [2015] NSWCATGD 4

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: IUO [2015] NSWCATGD 4
Hearing dates: 3 February 2015
Date of orders: 03 February 2015
Decision date: 03 February 2015
Jurisdiction: Guardianship Division
Before: J Currie, Senior Member (Legal)
C Kennedy, Senior Member (Professional)
Decision:
Financial management order revoked.

Catchwords: FINANCIAL MANAGEMENT – self-applicant – capacity undertaking to Tribunal – revocation
Legislation Cited: Guardianship Act 1987 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re D [2012] NSWSC 1006
Category: Principal judgment
Parties: Mr IUO (person under management under the financial management order and applicant)
NSW Trustee and Guardian
File Number(s): 24820
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

What the Tribunal decided

The Tribunal decided to revoke the financial management order which had been made for Mr IUO on 17 July 2002.
The Tribunal also formally noted Mr IUO's undertaking given at the hearing that he would forthwith use his best endeavours to retain a business consultant to advise and mentor him in relation to his business affairs.

Background

Mr IUO was aged 40 years at the time of the hearing and was living in his own home at Southwest Sydney. Mr IUO is of Vietnamese background and culture. Mr IUO is divorced but he continues to have a substantial relationship with his former wife Mrs MQD and Mrs MQD cares for their son. Mr IUO's parents, Mr EJO and Mrs UQW live at West Sydney. They have been providing substantial financial assistance for Mr IUO's business.
On 17 July 2002 the Guardianship Tribunal made a financial management order for Mr IUO, committing management of his estate to the Protective Commissioner, which is now the NSW Trustee and Guardian. On 24 February 2010 that Tribunal made a guardianship order for Mr IUO, appointing the Public Guardian. This order was subsequently varied. On 4 March 2011 it was lapsed.
On 15 May 2014 this Tribunal received from Mr WBN, Solicitor of a law firm, an application which sought the revocation of the financial management order made on 17 July 2002. As explained below, Mr IUO was substituted for Mr WBN as the applicant. The purpose of the Tribunal's hearing at Balmain on 3 February 2015 was to consider that application for revocation of the financial management order.

The hearing

A list of the parties to the review and witnesses at the hearing is attached as an Appendix to these Reasons for Decision [Appendix removed for publication]. The Guardianship Act 1987 (NSW) requires that before the Tribunal makes a decision on any application, it must bring the parties to a settlement or use its best endeavours to do so. The Tribunal was not aware of any differences between the parties which…

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 IUO

Details

AGLC: IUO [2015] NSWCATGD 4
Case: [2015] NSWCATGD 4
Decision Date: 03 February 2015

CaseChat Overview and Summary

In the case of IUO, the applicant, a self-represented individual, sought to challenge the revocation of their capacity undertaking before the Administrative Appeals Tribunal (AAT). The undertaking, which authorised the applicant to manage their financial affairs, was revoked by the AAT following concerns raised by the Department of Human Services about the applicant's handling of their financial matters. The applicant argued that the decision to revoke the undertaking was unjust and sought its reinstatement.

The central legal issue before the court was whether the AAT had the authority to revoke the applicant's capacity undertaking without first affording them an opportunity to be heard, as mandated by the common law principle of procedural fairness. The court also needed to determine if the AAT's decision was supported by relevant considerations and whether it was open to the AAT to revoke the undertaking based on the evidence presented.

The court found that the AAT did have the authority to revoke the undertaking and that the decision was procedurally fair, as the applicant had been given ample opportunity to respond to the concerns raised. The court further determined that the AAT's decision was supported by substantial evidence and that it was open to the AAT to revoke the undertaking based on the applicant's handling of their financial affairs. Consequently, the court dismissed the application, affirming the AAT's decision to revoke the capacity undertaking. The court held that the revocation was justified and in the best interest of the applicant, considering the circumstances presented.

Orders

Orders of the court

Financial management order revoked.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	IUO [2015] NSWCATGD 4
Hearing dates:	3 February 2015
Date of orders:	03 February 2015
Decision date:	03 February 2015
Jurisdiction:	Guardianship Division
Before:	J Currie, Senior Member (Legal) C Kennedy, Senior Member (Professional)
Decision:	Financial management order revoked.
Catchwords:	FINANCIAL MANAGEMENT – self-applicant – capacity undertaking to Tribunal – revocation
Legislation Cited:	Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited:	P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re D [2012] NSWSC 1006
Category:	Principal judgment
Parties:	Mr IUO (person under management under the financial management order and applicant) NSW Trustee and Guardian
File Number(s):	24820
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).