KY, KX and KW v Protective Commissioner - [2006] NSWADT 197

CITATION: KY, KX and KW v Protective Commissioner [2006] NSWADT 197

DIVISION: General Division

PARTIES: APPLICANTS
KY, KX and KW
RESPONDENT
Protective Commissioner

FILE NUMBER: 063145

HEARING DATES: 14/06/2006

SUBMISSIONS CLOSED: 06/14/2006

DATE OF DECISION:
06/30/2006

BEFORE: Rees N - Judicial Member

CATCHWORDS: Protected Estates Act - Protective Commissioner - decision to enter costs agreement with solicitors - Protective Commissioner - decision to enter costs agreement with solicitors

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Appeals Tribunal Act 1975 (Cth)
Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Powers of Attorney Act 2003
Protected Estates Act 1983
Protected Estates Regulation 2003

CASES CITED: Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 32 ALD 71
In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67
KV v Protective Commissioner (No 2) [2004] NSWADTAP 48
Protective Commissioner v D (2004) 60 NSWLR 513
Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74

REPRESENTATION:
APPLICANTS
KY and KW in person
RESPONDENT
C Phang, solicitor

ORDERS: 1. The decision of the Protective Commissioner made on 25 January 2006 to execute a costs agreement with Crichton-Brownes, Solicitors, concerning payment of reasonable legal expenses in relation to an application to the Supreme Court pursuant to s 35 of the Protected Estates Act 1983 on behalf of KZ is set aside.; 2. The matter is remitted to the Protective Commissioner to be dealt with in accordance with these reasons.

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…

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.

Keep reading for free

Create a free CaseChat account to read KY, KX and KW v Protective Commissioner and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] NSWADT 197
Decision Date: 30/06/2006

CaseChat Overview and Summary

KY, KX, and KW have brought an application to challenge a decision made by the Protective Commissioner under the Protected Estates Act 1983. The dispute revolves around the Commissioner's decision to enter into a costs agreement with Crichton-Brownes, Solicitors, concerning the payment of reasonable legal expenses related to an application to the Supreme Court on behalf of KZ. The case was heard in the Supreme Court of the relevant jurisdiction.

The legal issues before the court were centred around the scope of the Protective Commissioner's authority to enter into a costs agreement with solicitors and whether the Commissioner's decision was in accordance with the law. The applicants argued that the Commissioner lacked the authority to enter into such an agreement and that the decision was flawed as it did not adequately consider the interests of the protected estate. The Commissioner, on the other hand, contended that the decision was within their statutory powers and was appropriate in the circumstances.

The court found that the Protective Commissioner had indeed exceeded their statutory authority by entering into a costs agreement with solicitors without proper consideration of the relevant legislation. The court noted that the Commissioner had failed to adequately consider the interests of the protected estate and had acted in a manner that was inconsistent with the statutory framework. As a result, the decision was set aside, and the matter was remitted to the Protective Commissioner to be dealt with in accordance with the court's reasons. The court emphasised the importance of ensuring that the interests of protected estates are properly safeguarded and that decisions made by the Commissioner are in accordance with the law.

Orders

Orders of the court

1. The decision of the Protective Commissioner made on 25 January 2006 to execute a costs agreement with Crichton-Brownes, Solicitors, concerning payment of reasonable legal expenses in relation to an application to the Supreme Court pursuant to s 35 of the Protected Estates Act 1983 on behalf of KZ is set aside.; 2. The matter is remitted to the Protective Commissioner to be dealt with in accordance with these reasons. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision. Section 126 provides (1A) This section applies only to the following:

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:	KY, KX and KW v Protective Commissioner [2006] NSWADT 197
DIVISION:	General Division
PARTIES:	APPLICANTS KY, KX and KW RESPONDENT Protective Commissioner
FILE NUMBER:	063145
HEARING DATES:	14/06/2006
SUBMISSIONS CLOSED:	06/14/2006
DATE OF DECISION:	06/30/2006
BEFORE:	Rees N - Judicial Member
CATCHWORDS:	Protected Estates Act - Protective Commissioner - decision to enter costs agreement with solicitors - Protective Commissioner - decision to enter costs agreement with solicitors
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Appeals Tribunal Act 1975 (Cth) Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003 Protected Estates Act 1983 Protected Estates Regulation 2003
CASES CITED:	Alphapharm Pty Ltd v Smithkline Beecham (Aust) Pty Ltd (1994) 32 ALD 71 In Re McHattan and Collector of Customs (NSW) (1977) 1 ALD 67 KV v Protective Commissioner (No 2) [2004] NSWADTAP 48 Protective Commissioner v D (2004) 60 NSWLR 513 Re Control Investments Pty Ltd and Australian Broadcasting Tribunal (No 1) (1980) 3 ALD 74
REPRESENTATION:	APPLICANTS KY and KW in person RESPONDENT C Phang, solicitor
ORDERS:	1. The decision of the Protective Commissioner made on 25 January 2006 to execute a costs agreement with Crichton-Brownes, Solicitors, concerning payment of reasonable legal expenses in relation to an application to the Supreme Court pursuant to s 35 of the Protected Estates Act 1983 on behalf of KZ is set aside.; 2. The matter is remitted to the Protective Commissioner to be dealt with in accordance with these reasons.