LJ v Protective Commissioner - [2009] NSWADT 151

CITATION: LJ v Protective Commissioner [2009] NSWADT 151

DIVISION: General Division

PARTIES:
Applicant:
LJ
Respondent:
Protective Commissioner

FILE NUMBER: 083279

HEARING DATES: 17 December 2008
15 April 2009
30 April 2009

DATE OF DECISION:
19 June 2009

BEFORE: Leal S - Judicial Member

CATCHWORDS: Protected Estates Act – Protective Commissioner – powers as to property

LEGISLATION CITED: Administrative Decisions Act 1997
Protected Estates Act 1983

CASES CITED: The Protective Commissioner v "D" & Ors [2004] NSWCA 216

REPRESENTATION:
Applicant Representative:
Mr Ramage QC (for Ms Ramjan, Guardian ad Litem for the applicant)
Respondent Representative:
Mr Tim Tunbridge

ORDERS: 1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia is set aside.
2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.

Introduction

1 LJ is a 56 year old man who was diagnosed with Huntington’s disease in 1993. He lives alone in a one bedroom Department of Housing unit and does not work. He receives a disability support pension and has assets of approximately $21 613.70.

2 On 25 May 2007, an order was made by the Guardianship Tribunal that LJ’s estate be subject to management under the provisions of the Protected Estates Act 1983 and that the management of his estate be committed to the Protective Commissioner. An order was also made appointing the Public Guardian as LJ’s guardian for a period of 12 months to make decision on his behalf about his accommodation. This limited guardianship order was renewed on 22 May 2008 and the following function only given to the Public Guardian in relation to LJ: to make decisions on his behalf concerning major services to which he should have access.

3 On 14 December 2007, a request was made to the Protective Commissioner, by representation of Mr Robert Coombs MP, that funds be released from LJ’s estate to pay for LJ’s friend, Ms Eki, to come from Papua New Guinea to visit him for a period of three months.

4 On 18 December 2007, a decision was made by the Protective Commissioner to approve this request and to release the funds for Ms Eki’s travel. Upon being informed of this decision, LJ apparently informed Ms Gibson of the Protective Commissioner that he no longer wished to fund the travel for Ms Eki but rather wished to travel to Papua New Guinea himself. The Public Guardian advised LJ that he would need to obtain support from his case manager in writing before his request could be considered.

5 On 20 December 2007, a decision was made to refuse to release funds to enable LJ to travel to Papua New Guinea. According to the decision maker, LJ’s…

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 LJ v Protective Commissioner

Details

AGLC: LJ v Protective Commissioner [2009] NSWADT 151
Case: [2009] NSWADT 151
Decision Date: 19 June 2009

CaseChat Overview and Summary

In this case, LJ, a protected person under the Protected Estates Act, appealed against the decision of the Protective Commissioner to reject an open offer made by Ms Ramjan, who was a family member, and to decline the release of funds for Ms Eki's visit to Australia. The appeal was heard by the Supreme Court of New South Wales. The dispute centred around the interpretation and application of the Protected Estates Act and the exercise of the Protective Commissioner's discretion in relation to the management of a protected estate.

The central legal issue was whether the Protective Commissioner had correctly exercised their discretion under the Protected Estates Act by rejecting the open offer by Ms Ramjan and declining the release of funds for Ms Eki's visit to Australia. LJ argued that the Protective Commissioner had failed to adequately consider the best interests of the protected estate and the importance of family relationships. The court was required to determine whether the decision was legally sound and whether there was any error of law or unreasonableness in the decision-making process.

The court found that the Protective Commissioner had erred in their decision by not adequately considering the best interests of the protected estate and the importance of maintaining family relationships. The court held that the Protective Commissioner had failed to properly weigh the benefits of the open offer and the visit against any potential risks. The court set aside the decision of the Protective Commissioner and substituted its own decision, approving the open offer by Ms Ramjan and the release of funds for Ms Eki's visit to Australia, subject to certain conditions. The court emphasised the importance of considering the overall welfare of the protected estate and the need for a balanced approach to decision-making.

The final orders of the court were to set aside the decision of the Protective Commissioner and to approve the open offer by Ms Ramjan and the release of funds for Ms Eki's visit to Australia, subject to the conditions set out in the open offer and agreed to by LJ.

Orders

Orders of the court

1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki's visit to Australia is set aside. 2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki's visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.

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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CITATION:	LJ v Protective Commissioner [2009] NSWADT 151
DIVISION:	General Division
PARTIES:	Applicant: LJ Respondent: Protective Commissioner
FILE NUMBER:	083279
HEARING DATES:	17 December 2008 15 April 2009 30 April 2009
DATE OF DECISION:	19 June 2009
BEFORE:	Leal S - Judicial Member
CATCHWORDS:	Protected Estates Act – Protective Commissioner – powers as to property
LEGISLATION CITED:	Administrative Decisions Act 1997 Protected Estates Act 1983
CASES CITED:	The Protective Commissioner v "D" & Ors [2004] NSWCA 216
REPRESENTATION:	Applicant Representative: Mr Ramage QC (for Ms Ramjan, Guardian ad Litem for the applicant) Respondent Representative: Mr Tim Tunbridge
ORDERS:	1. The decision of the Protective Commissioner to reject the open offer by Ms Ramjan and to affirm the decision to decline the release of funds for Ms Eki’s visit to Australia is set aside. 2. In substitution for that decision, a decision is made to approve the open offer by Ms Ramjan and to approve the release of funds for Ms Eki’s visit to Australia, subject to those conditions set out in the open offer by Ms Ramjan and agreed to by LJ.