KV v Protective Commissioner

Appeal Panel - External

CITATION:	KV v Protective Commissioner & Ors [2004] NSWADTAP 29
PARTIES:	APPELLANT KV FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT KW THIRD RESPONDENT KX FOURTH RESPONDENT KY FIFTH RESPONDNET KZ SIXTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	048004
HEARING DATES:	24/06/2004
SUBMISSIONS CLOSED:	06/24/2004
DATE OF DECISION:	07/14/2004
DECISION UNDER APPEAL:	Guardianship Tribunal 2004/217
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Urgent Interlocutory Order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	C/28176
DATE OF DECISION UNDER APPEAL:	04/02/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Virtu v The Director of New South Wales Fisheries 2000 NSW ADT AP 25
REPRESENTATION:	APPELLANT No Appearance FIRST RESPONDENT T Tunbridge, solicitor SECOND RESPONDENT In person THIRD RESPONDENT No Appearance FOURTH RESPONDENT No Appearance FIFTH RESPONDENT J Coates, solicitor SIXTH RESPONDENT E Cho, legal officer
ORDERS:	DATE OF ORDERS: 24 June 2004 Application for stay refused.

Introduction

1 On 24 June 2004, the Appeal Panel gave oral reasons for refusing to stay a decision of the Guardianship Tribunal. The appellant did not appear at 9 am when the matter was called. The Registry phoned him and he advised that he was running late and that it would be about an hour before he would reach the Tribunal. In view of the fact that all parties who intended to appear were present and ready to proceed, we decided to hear the application in the absence of the appellant. The appellant had still not arrived at about 10.15 am when the hearing had concluded. This decision elaborates on the oral reasons given by the Appeal Panel on that day.

2 KV, the appellant, is the son of KZ. KZ is currently residing in a nursing home. On 2 April 2004, the Guardianship Tribunal decided to commit the management of KZ’s financial affairs to the Protective Commissioner. KV appealed to the Administrative Decisions Tribunal against that decision and sought a stay of its operation. The effect of the stay would be to re-instate the status quo prior to the making of the financial management order until the substantive appeal had been determined. Prior to that time KV held a power of attorney in relation to his mother’s affairs.

Jurisdiction

3 The source of power for the Appeal Panel to stay the Guardianship Tribunal’s order comes from s118B of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 118B(4) states that:

Subject to any interlocutory order made by the Appeal Panel, an external appeal does not affect the operation of the appealable decision or prevent the taking of action to implement the decision.

4 The brief factual situation is that KZ is living in a nursing home and her son, KV, is living in her home rent free. A bond money of some $35,000 has not been paid to the nursing home and interest is payable on that amount. KZ’s home is her only significant asset.

5 Mr Tunbridge for…