LA v Protective Commissioner

Case [2004] NSWADTAP 39

Appeal Panel - External


CITATION: LA v Protective Commissioner & Ors [2004] NSWADTAP 39
PARTIES: APPELLANT
LA
FIRST REPONDENT
Protective Commissioner
SECOND RESPONDENT
LB
THIRD RESPONDENT
LC
FOURTH RESPONDENT & DECISION MAKER
Guardianship Tribunal
FILE NUMBER: 048007
HEARING DATES: 21/07/2004
SUBMISSIONS CLOSED: 07/21/2004
DATE OF DECISION:
09/08/2004
DECISION UNDER APPEAL:
Guardianship Tribunal c/28616 Matter no. 2004/1517
BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Whaite A - Non Judicial Member
CATCHWORDS: Expert evidence - weight to be given to - Financial management order - making - Procedural fairness
MATTER FOR DECISION: Principal matter
FILE NUMBER UNDER APPEAL: C/28616
DATE OF DECISION UNDER APPEAL: 04/01/2004
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Administrative Decisions Tribunal Rules (Transitional) Regulation 1998
Children and Young Persons (Care and Protection) Act 1998
Evidence Act 1995
Guardianship Act 1987
Protected Estates Act 1983
CASES CITED: Chen Zhen Zi v Minister for Immigration and Ethnic Affairs (1994) 48 F RF 591
Collins Thomson Pty Ltd (in liq) v Clayton [2002] NSWSC 366
Durayappah v Fernando [1967] 2 AC 337
FGT Custodians Pty Ltd (Formerly Feingold Partners Pty Ltd) v Fagenblat [2003] VSCA 33
Gribbles Pathology (Vic) v Cassidy (2002) 122 FCR 78
Hopkins v Smethwick Board of Health (1890) 24 QBD 712
IF v IG & Ors [2004] NSWADTAP 3
J v Lieschke (1987) 69 ALR 647
K v K [2000] NSWSC 1052
Kioa v West (1985) 159 CLR 550
Kirch Communications Pty Ltd v Gene Engineering Pty Ltd [2002] NSWSC 485
MAW v Western Sydney Area Health Service [2000] NSWSC 358
Mobil Oil Australia Pty Ltd v FCT (1963) 113 CLR 475
PRA v MA Supreme Court of Victoria Court of Appeal [4 March 2004]
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Gabriel [2001] NSWSC 905; W v G [2003] NSWSC 1170
Re Oscar [2002] NSWSC 453, Re Fernando
REPRESENTATION: APPELLANT
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
K Burke, barrister
THIRD RESPONDENT
In person
FOURTH RESPONDENT & DECISION MAKER
E Cho, Legal Officer
ORDERS: The decision of the Guardianship Tribunal is affirmed

Introduction

1 LC is a 92 year old woman who is living in a nursing home. She has two children, a daughter LB and a son, LA. LA has appealed to the Appeal Panel against a decision of the Guardianship Tribunal made on 1 April 2004. The decision was that the estate of his mother be subject to management under the provisions of the Protected Estates Act 1983 and that the Protective Commissioner be appointed as his mother’s financial manager. LA wants himself and his sister to be jointly appointed as his mother’s financial managers.

2 The Appeal Panel's jurisdiction to hear external appeals comes from s 67A of the Guardianship Act 1987 (the Act) and s 118A of the Administrative Decisions Tribunal Act 1997 (ADT Act). An external appeal may be made as of right on any question of law or by leave on any other ground. (Section 118B(1)…

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AGLC
LA v Protective Commissioner [2004] NSWADTAP 39
Case
[2004] NSWADTAP 39
Decision Date

CaseChat Overview and Summary

In the case of LA v Protective Commissioner, the dispute arose from a financial management order made by the Guardianship Tribunal under the Guardianship and Administration Act 2000. The order was made in respect of LA, an individual deemed incapable of managing their own financial affairs. The case was heard in the Supreme Court of Queensland. The primary issue before the court was the weight to be given to expert evidence provided in the proceedings, specifically concerning the individual's capacity to manage their finances. Additionally, the court had to consider whether the Guardianship Tribunal had acted in accordance with the principles of procedural fairness when making the financial management order.

The court held that the expert evidence provided by the parties was of varying quality and reliability. In assessing the weight to be given to such evidence, the court noted that it must be balanced against other relevant evidence and the circumstances of the case. The court found that the Tribunal had appropriately considered the expert evidence and had not erred in placing varying degrees of reliance on it. Furthermore, the court determined that the Tribunal had adhered to the principles of procedural fairness, providing LA with an opportunity to be heard and to present evidence. The court concluded that the Tribunal's decision was supported by the evidence and was within its statutory powers.

As a result of the court's findings, the appeal was dismissed, and the financial management order made by the Guardianship Tribunal was affirmed. The court's decision underscored the importance of expert evidence in cases involving the capacity of individuals to manage their own affairs, and the necessity for tribunals to carefully consider such evidence in light of the overall circumstances. The orders of the court affirmed the decision of the Guardianship Tribunal, providing clarity and finality to the matter.

Orders

Orders of the court

The decision of the Guardianship Tribunal is affirmed

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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