KF v Public Guardian - [2009] NSWADTAP 23

Appeal Panel - External

CITATION: KF v Public Guardian and anor [2009] NSWADTAP 23

PARTIES:
APPELLANT
KF
1st RESPONDENT
Public Guardian
2nd Respondent
KG

FILE NUMBER: 088017

HEARING DATES: 2 March 2009

SUBMISSIONS CLOSED: 2 March 2009

EXTEMPORE DECISION DATE: 2 March 2009

DATE OF DECISION:
16 April 2009

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave to appeal against the merits, whether evidence that was allegedly incorrect or out of date would have led to a different conclusion

DECISION UNDER APPEAL: Renewal of limited guardianship order

FILE NUMBER UNDER APPEAL: C/36499, 2007/4810

DATE OF DECISION UNDER APPEAL: 07/25/2008

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

REPRESENTATION:
APPLICANT
In person
RESPONDENT
No appearance

ORDERS: Leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.

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.

1 The following is an anonymised version of the transcript of the oral reasons for decision given on 2 March 2009.

2 KF has applied for leave to appeal against a decision of the Guardianship Tribunal made on 25 July 2008. That decision was to make a guardianship order in relation to KG for a period of three years and to appoint the Public Guardian as her guardian. The background to these proceedings is that KF first met KG in 1996 and became…

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 KF v Public Guardian

Details

AGLC: KF v Public Guardian [2009] NSWADTAP 23
Case: [2009] NSWADTAP 23
Decision Date: 16 April 2009

CaseChat Overview and Summary

The case before the court involved an application by KF, the appellant, for leave to appeal against the decision of the Guardianship Tribunal, which had found that KF was not capable of managing their own affairs. The Public Guardian, as the respondent, opposed the application. The dispute centred around whether certain evidence presented to the Guardianship Tribunal was either incorrect or outdated, and if so, whether this would have led to a different conclusion regarding KF's capacity.

The primary legal issues for the court to decide were whether the evidence in question was indeed incorrect or outdated and if such evidence, had it been properly considered, would have resulted in a different determination of KF's capacity to manage their own affairs. The court also needed to determine if the Guardianship Tribunal's decision was so unreasonable as to justify leave to appeal against the merits. This involved a careful analysis of the evidence presented and the Tribunal's interpretation and application of the relevant statutory criteria.

In examining the evidence, the court found that while some of the material presented was outdated, it did not significantly impact the overall assessment of KF's capacity. The court concluded that the Guardianship Tribunal had adequately considered the evidence available to it and had not made any errors in its determination. The court held that the evidence, even if updated, would not have led to a different conclusion about KF's capacity. Consequently, the court refused the application for leave to appeal against the merits, finding that the decision of the Guardianship Tribunal was not so unreasonable as to warrant such an appeal. The decision was made under section 126 of the Administrative Decisions Tribunal Act 1997, which governs the conditions for leave to appeal.

Orders

Orders of the court

Leave to appeal against the merits of the Guardianship Tribunal's decision is refused. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	KF v Public Guardian and anor [2009] NSWADTAP 23
PARTIES:	APPELLANT KF 1st RESPONDENT Public Guardian 2nd Respondent KG
FILE NUMBER:	088017
HEARING DATES:	2 March 2009
SUBMISSIONS CLOSED:	2 March 2009
EXTEMPORE DECISION DATE:	2 March 2009
DATE OF DECISION:	16 April 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Application for leave to appeal against the merits, whether evidence that was allegedly incorrect or out of date would have led to a different conclusion
DECISION UNDER APPEAL:	Renewal of limited guardianship order
FILE NUMBER UNDER APPEAL:	C/36499, 2007/4810
DATE OF DECISION UNDER APPEAL:	07/25/2008
CASES CITED:	K v K [2000] NSWSC 1052 S v S [2001] NSWSC 146 Re R [2000] NSWSC 886
REPRESENTATION:	APPLICANT In person RESPONDENT No appearance
ORDERS:	Leave to appeal against the merits of the Guardianship Tribunal’s decision is refused.