JT and Anor v Protective Commissioner & Ors - [2004] NSWADTAP 13

Appeal Panel - External

CITATION: JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13

PARTIES: APPELLANT
JT and JV
FIRST RESPONDENT
Protective Commissioner
SECOND RESPONDENT
JW
THIRD RESPONDENT
JS
FOURTH RESPONDENT
JU
FIFTH RESPONDENT
Guardianship Tribunal

FILE NUMBER: 038017

HEARING DATES: 19/04/2004

SUBMISSIONS CLOSED: 04/19/2004

DATE OF DECISION:
04/30/2004

DECISION UNDER APPEAL:
Guardianship Tribunal 2003/5218

BEFORE: Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Wunsch A - Non Judical Member

CATCHWORDS: Financial management order - making - Jurisdicition - effect of irregularity - Leave to appeal on other grounds - No evidence - Statutory interpretation

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/27693 2003/5218

DATE OF DECISION UNDER APPEAL: 11/19/2003

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Guardianship Act 1987
Privacy and Personal Information Protection Act 1998
Protected Estates Act 1983

CASES CITED: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
K v K [2000] NSWSC 1052
Kioa v West (1985) 159 CLR 550
Mahon v Air New Zealand Ltd [1984] AC 808
Re R [2000] NSWSC 886
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
S v S [2001] NSWSC 146

REPRESENTATION: APPELLANTS
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
In person
THIRD RESPONDENT
Ms Coates, solicitor
FOURTH RESPONDENT
No appearance
FIFTH RESPONDENT
E Cho, legal officer

ORDERS: The orders of the Guardianship Tribunal made on 19 November 2003 concerning JS are affirmed.

Background

1 JS is a 77 year old man with Alzheimer’s disease who lives with his son, JT and his daughter in law, JV. On 19 November 2003 the Guardianship Tribunal (the Tribunal) made an order that JS’s estate be subject to the management of the Protective Commissioner. The application for that order was made by JS’s son in law, JW. JS’s son and daughter in law, JT and JV, appealed to the Appeal Panel of the Administrative Decisions Tribunal (ADT) against the Guardianship Tribunal’s decision.

2 Under s 25E(1) of the Guardianship Act 1987, the Tribunal may “order that the estate of a person be subject to management under the Protected Estates Act 1983.” Section 25G of the Guardianship Act 1987 sets out the circumstances in which the Tribunal may make a financial management order.

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person’s behalf, and

(c) it is in the person’s best interests that the order be made.

3 Pursuant to s 25M, if the Tribunal makes a financial management order it must either “appoint a suitable person as manager of that estate”, or “commit the management of that estate to the Protective Commissioner.”

Parties

4 The parties to proceedings before an Appeal Panel…

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.

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Details

Case: [2004] NSWADTAP 13
Decision Date: 04/30/2004

CaseChat Overview and Summary

In the case of JT and Anor v Protective Commissioner & Ors, the applicants sought to challenge the decisions of the Guardianship Tribunal concerning the making of a financial management order for JS. The High Court of Australia was tasked with determining the jurisdiction of the Tribunal and whether certain irregularities in the proceedings affected the outcome. Additionally, the Court was required to interpret statutory provisions regarding the making of such orders.

The central legal issues revolved around the jurisdiction of the Guardianship Tribunal to make a financial management order and whether procedural irregularities rendered the order invalid. The applicants argued that the Tribunal lacked jurisdiction as it had not considered all relevant factors and had failed to provide adequate reasons for its decision. They also contended that there was no evidence to support the making of the order. Furthermore, the applicants sought leave to appeal on grounds other than those initially presented, citing new evidence and statutory interpretation issues.

The Court found that the Guardianship Tribunal had jurisdiction to make the financial management order, as the statutory provisions did not require consideration of all factors or the provision of detailed reasons. The Court also held that procedural irregularities did not invalidate the order, as the applicants had not demonstrated that these irregularities prejudiced their case. Regarding the leave to appeal, the Court found that the applicants had not provided sufficient evidence to warrant leave to appeal on new grounds. Finally, the Court interpreted the relevant statutory provisions to confirm that the Guardianship Tribunal had the authority to make the financial management order in question.

The Court affirmed the orders of the Guardianship Tribunal made on 19 November 2003 concerning JS, upholding the decision to grant a financial management order. The Court denied the applicants' request for leave to appeal on other grounds and rejected their argument that the order was unsupported by evidence. The interpretation of the statutory provisions reinforced the Tribunal's jurisdiction in making such orders.

Orders

Orders of the court

The orders of the Guardianship Tribunal made on 19 November 2003 concerning JS 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:	JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13
PARTIES:	APPELLANT JT and JV FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT JW THIRD RESPONDENT JS FOURTH RESPONDENT JU FIFTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	038017
HEARING DATES:	19/04/2004
SUBMISSIONS CLOSED:	04/19/2004
DATE OF DECISION:	04/30/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2003/5218
BEFORE:	Hennessy N - Magistrate (Deputy President); Innes G - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Jurisdicition - effect of irregularity - Leave to appeal on other grounds - No evidence - Statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/27693 2003/5218
DATE OF DECISION UNDER APPEAL:	11/19/2003
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Administrative Decisions Tribunal Rules (Transitional) Regulation 1998 Guardianship Act 1987 Privacy and Personal Information Protection Act 1998 Protected Estates Act 1983
CASES CITED:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149 K v K [2000] NSWSC 1052 Kioa v West (1985) 159 CLR 550 Mahon v Air New Zealand Ltd [1984] AC 808 Re R [2000] NSWSC 886 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52 S v S [2001] NSWSC 146
REPRESENTATION:	APPELLANTS In person FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT Ms Coates, solicitor FOURTH RESPONDENT No appearance FIFTH RESPONDENT E Cho, legal officer
ORDERS:	The orders of the Guardianship Tribunal made on 19 November 2003 concerning JS are affirmed.