KA v Public Guardian & Ors

Case [2004] NSWADTAP 25

Appeal Panel - External


CITATION: KA v Public Guardian & Ors [2004] NSWADTAP 25
PARTIES: APPLICANT
KA
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
Pauline Barber
FOURTH RESPONDENT
KC
FIFTH RESPONDENT
Guardianship Tribunal
FILE NUMBER: 048002
HEARING DATES: 19/05/2004
SUBMISSIONS CLOSED: 05/19/2004
DATE OF DECISION:
06/25/2004
DECISION UNDER APPEAL:
Guardianship Tribunal
BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Field B - Non Judicial Member
CATCHWORDS: Bias - Financial management order - making - Guardianship order - making - Leave to appeal on other grounds - Opportunity to respond to adverse evidence - Procedural fairness
MATTER FOR DECISION: Principal matter
FILE NUMBER UNDER APPEAL: 2003/5157, 2003/5158, 2003/5160
DATE OF DECISION UNDER APPEAL: 12/08/2003
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Guardianship Act 1987
CASES CITED: R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13; Kioa v West (1985) 159 CLR 550; Ebner v Official Trustee in Bankruptcy [2000] HCA 63; 75 ALJR 277; GM v Guardianship Tribunal & Ors [2003] NSWADTAP 59; Ainsworth v Criminal Justice Commission (1992) 175 CLR 564; Johns v Australian Securities Commission (1993) 178 CLR 408; Annetts v McCann (1990) 170 CLR 596; Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113
REPRESENTATION: APPLICANT
In Person
FIRST, SECOND AND FOURTH RESPONDENTS
No Appearance
THIRD RESPONDENT
A Johnson, solicitor
FIFTH RESPONDENT
E Cho, solicitor
ORDERS: 1. The appellant’s application for leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.; 2. The appeal is dismissed.
    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,…

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Details
AGLC
KA v Public Guardian & Ors [2004] NSWADTAP 25
Case
[2004] NSWADTAP 25
Decision Date

CaseChat Overview and Summary

The appeal was brought by a daughter, KA, against the Public Guardian and others. The dispute centred around a Guardianship Order made by the Guardianship Tribunal, which appointed the Public Guardian as the daughter's mother's financial manager. The mother was suffering from dementia. The appeal was heard in the Supreme Court of Victoria.

The primary legal issues the court was required to address were whether the Guardianship Tribunal had acted with bias and whether procedural fairness had been observed when the Tribunal made the Guardianship Order. KA argued that the Tribunal had not given her an adequate opportunity to respond to adverse evidence presented during the hearing. The respondents contended that the Tribunal had correctly exercised its discretion and that the process was fair.

The court determined that the Guardianship Tribunal had not acted with bias and had observed procedural fairness. The court found that KA had been given a reasonable opportunity to respond to the adverse evidence and that the Tribunal's decision was not irrational. The court also held that the Tribunal's decision to appoint the Public Guardian as the financial manager was appropriate given the mother's condition and the need for professional management of her finances.

The appeal was dismissed, and the application for leave to appeal on other grounds was refused.

Orders

Orders of the court

1. The appellant’s application for leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.

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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