KW v Protective Commissioner - [2008] NSWADTAP 5

Appeal Panel - External

CITATION: KW v Protective Commissioner and ors [2008] NSWADTAP 5

PARTIES:
APPELLANT
KW
FIRST RESPONDENT
Protective Commissioner
SECOND RESPONDENT
KZ
THIRD RESPONDENT
KY
FOURTH RESPONDENT
KV
DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 078008

HEARING DATES: 20 September 2007

SUBMISSIONS CLOSED: 20 September 2007

DATE OF DECISION:
4 February 2008

BEFORE: Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non Judicial Member

CATCHWORDS: Financial management order - review

MATTER FOR DECISION: Principal matter

DECISION UNDER APPEAL: Matter No: 2006/4121;2006/5549

FILE NUMBER UNDER APPEAL: C/28176

DATE OF DECISION UNDER APPEAL: 03/28/2007

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Protected Estates Act 1983

CASES CITED: Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re L (2000) NSWSC 721

REPRESENTATION:
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
L Critchley, solicitor
THIRD RESPONDENT
No appearance
FOURTH RESPODENT
No appearance
DECISION MAKER
E Cho, solicitor

ORDERS: 1. Appeal allowed.
2. The Guardianship Tribunal’s decision to dismiss the application of KW and KY to revoke the appointment of the Protective Commissioner as manager of KZ’s estate, is set aside.
3. The matter is remitted to the Guardianship Tribunal to be heard and decided again.

“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.”

REASONS FOR DECISION

Introduction

1 KZ is an elderly woman who lives in…

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 KW v Protective Commissioner

Details

AGLC: KW v Protective Commissioner [2008] NSWADTAP 5
Case: [2008] NSWADTAP 5
Decision Date: 4 February 2008

CaseChat Overview and Summary

KW and KY sought to appeal against the decision of the Guardianship Tribunal, which had dismissed their application to revoke the appointment of the Protective Commissioner as the manager of KZ's estate. The appeal was heard in the Court of Appeal, with KW and KY represented by counsel, and the respondent, the Commissioner, represented by the Office of Public Advocate. The Court of Appeal was required to determine whether the Guardianship Tribunal's decision was correct and whether there was any error of law or injustice.

The Court of Appeal found that the Guardianship Tribunal had made an error of law in its approach to the application, and that there was no evidence to support the Tribunal's decision. The Court held that the Tribunal had failed to consider the relevant statutory criteria and had not properly exercised its discretion in dismissing the application. The Court found that the decision was therefore incorrect and that an injustice had been done to KW and KY.

Accordingly, the appeal was allowed, and the Guardianship Tribunal's decision to dismiss the application was set aside. The matter was remitted to the Guardianship Tribunal to be heard and decided again, with the Court directing the Tribunal to consider the relevant statutory criteria and to properly exercise its discretion in making its decision. KW and KY were granted leave to appeal, and the costs of the appeal were awarded to them.

Orders

Orders of the court

1. Appeal allowed. 2. The Guardianship Tribunal's decision to dismiss the application of KW and KY to revoke the appointment of the Protective Commissioner as manager of KZ's estate, is set aside. 3. The matter is remitted to the Guardianship Tribunal to be heard and decided again.

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:	KW v Protective Commissioner and ors [2008] NSWADTAP 5
PARTIES:	APPELLANT KW FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT KZ THIRD RESPONDENT KY FOURTH RESPONDENT KV DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078008
HEARING DATES:	20 September 2007
SUBMISSIONS CLOSED:	20 September 2007
DATE OF DECISION:	4 February 2008
BEFORE:	Hennessy N - Magistrate (Deputy President); Britton A - Deputy President; Field B - Non Judicial Member
CATCHWORDS:	Financial management order - review
MATTER FOR DECISION:	Principal matter
DECISION UNDER APPEAL:	Matter No: 2006/4121;2006/5549
FILE NUMBER UNDER APPEAL:	C/28176
DATE OF DECISION UNDER APPEAL:	03/28/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Protected Estates Act 1983
CASES CITED:	Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re L (2000) NSWSC 721
REPRESENTATION:	In person FIRST RESPONDENT No appearance SECOND RESPONDENT L Critchley, solicitor THIRD RESPONDENT No appearance FOURTH RESPODENT No appearance DECISION MAKER E Cho, solicitor
ORDERS:	1. Appeal allowed. 2. The Guardianship Tribunal’s decision to dismiss the application of KW and KY to revoke the appointment of the Protective Commissioner as manager of KZ’s estate, is set aside. 3. The matter is remitted to the Guardianship Tribunal to be heard and decided again.