LX v NSW Trustee - [2009] NSWADTAP 50

Appeal Panel - External

CITATION: LX v NSW Trustee [2009] NSWADTAP 50

PARTIES:
APPELLANT
LX
RESPONDENT 1
NSW Trustee
RESPONDENT 2
Dr Margaret Gartrell
RESPONDENT 3
LY

FILE NUMBER: 098003

HEARING DATES: 26 May 2009

SUBMISSIONS CLOSED: 18 July 2009

DATE OF DECISION:
19 August 2009

BEFORE: Britton A - Deputy President; Leal S - Judicial Member; Wunsch A - Non-Judical Member

CATCHWORDS: New evidence - opportunity to be heard - procedural fairness - expert evidence – weight to be given

DECISION UNDER APPEAL: Making of financial management order – 2008/5841

FILE NUMBER UNDER APPEAL: C/40197

DATE OF DECISION UNDER APPEAL: 05/26/2009

LEGISLATION CITED: Protected Estates Act 1983
Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149
Bruce v Cole (1998) 45 NSWLR 163
Carew v Protective Commissioner and Ors [2005] NSWADTAP 13
FA v Protective Commissioner & Ors [2009] NSWSC 415
GM v Protective Commissioner & Ors [2003] NSWADTAP 59 Haines v Leves (1987) 8 NSWLR 442
KA v Public Guardian & Ors [2004] NSWADTAP 25
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.

REPRESENTATION:
APPELLANT
Dr B Gelin, solicitor
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
In person
THIRD RESPONDENT
No appearance

ORDERS: 1.The decision of the Guardianship Tribunal to make a financial management order in relation to LX and to appoint the NSW Trustee to manage her estate is set aside
2.The matter is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons
3.These orders do not come into effect until 60 days after the date of this decision.

1 The appellant, whom we refer to in these reasons by the pseudonym ‘LX’, appeals against a decision made by the Guardianship Tribunal appointing the NSW Trustee (formerly the Protective Commissioner) to manage her estate. She asserts that the Tribunal denied her procedural fairness, based its decision on flawed expert evidence and failed to have regard to a relevant consideration — namely a proposal to provide her with assistance in managing her affairs.

2 The Tribunal considered and dismissed an application for guardianship orders. That decision is not the subject of this Appeal.

3 The only parties to participate in the Appeal were the appellant and the second respondent. The appellant was represented by solicitor, Dr Ben Gelin. She also participated in the hearing. The second respondent, Dr Margaret Gartrell, attended in person. Dr Gartrell was the applicant in the proceedings before the Guardianship Tribunal. The third respondent, LY, the appellant’s son, wrote to the Appeal Panel advising that he was unable to attend. He stated that he supported the Appeal and believed that his mother was fully competent to make her own decisions and manage her affairs.

4 The appellant made an application to the Administrative Decisions Tribunal for a stay of the financial management order made by the Guardianship Tribunal. That…

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 LX v NSW Trustee

Details

AGLC: LX v NSW Trustee [2009] NSWADTAP 50
Case: [2009] NSWADTAP 50
Decision Date: 19 August 2009

CaseChat Overview and Summary

LX commenced proceedings against the NSW Trustee, seeking relief from a financial management order that had been made by the Guardianship Tribunal. The dispute centred around the process and fairness of the Tribunal's decision, particularly in relation to the admission and weight given to expert evidence. The High Court of Australia was tasked with examining the procedural fairness of the Tribunal's decision-making process and the appropriate weight to be given to expert evidence in such matters.

The central legal issues in this case were whether the Guardianship Tribunal had provided LX with a fair opportunity to respond to new evidence, and if the Tribunal had properly considered and weighed the expert evidence presented. The court was required to determine whether the process followed by the Tribunal met the standards of procedural fairness, and if the weight given to the expert evidence was justifiable under the circumstances.

The court found that the Guardianship Tribunal had not provided LX with a fair opportunity to respond to the new evidence presented, and that the Tribunal had not adequately considered the implications of the expert evidence. The court held that the Tribunal's decision-making process was flawed and that the weight given to the expert evidence was not justifiable. Consequently, the decision of the Guardianship Tribunal was set aside and the matter was remitted to the Tribunal for redetermination in accordance with the court's reasons.

The court ordered that the decision of the Guardianship Tribunal to make a financial management order in relation to LX and to appoint the NSW Trustee to manage her estate be set aside. The matter was to be remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with the court's reasons. These orders were to come into effect 60 days after the date of the decision, providing the parties with an opportunity to prepare for the redetermination process.

Orders

Orders of the court

1.The decision of the Guardianship Tribunal to make a financial management order in relation to LX and to appoint the NSW Trustee to manage her estate is set aside 2.The matter is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons 3.These orders do not come into effect until 60 days after the date of this decision.

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:	LX v NSW Trustee [2009] NSWADTAP 50
PARTIES:	APPELLANT LX RESPONDENT 1 NSW Trustee RESPONDENT 2 Dr Margaret Gartrell RESPONDENT 3 LY
FILE NUMBER:	098003
HEARING DATES:	26 May 2009
SUBMISSIONS CLOSED:	18 July 2009
DATE OF DECISION:	19 August 2009
BEFORE:	Britton A - Deputy President; Leal S - Judicial Member; Wunsch A - Non-Judical Member
CATCHWORDS:	New evidence - opportunity to be heard - procedural fairness - expert evidence – weight to be given
DECISION UNDER APPEAL:	Making of financial management order – 2008/5841
FILE NUMBER UNDER APPEAL:	C/40197
DATE OF DECISION UNDER APPEAL:	05/26/2009
LEGISLATION CITED:	Protected Estates Act 1983 Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Azzopardi v Tasman UED Industries Ltd (1985) 4 NSWLR 149 Bruce v Cole (1998) 45 NSWLR 163 Carew v Protective Commissioner and Ors [2005] NSWADTAP 13 FA v Protective Commissioner & Ors [2009] NSWSC 415 GM v Protective Commissioner & Ors [2003] NSWADTAP 59 Haines v Leves (1987) 8 NSWLR 442 KA v Public Guardian & Ors [2004] NSWADTAP 25 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48.
REPRESENTATION:	APPELLANT Dr B Gelin, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT No appearance
ORDERS:	1.The decision of the Guardianship Tribunal to make a financial management order in relation to LX and to appoint the NSW Trustee to manage her estate is set aside 2.The matter is remitted to the Tribunal as originally or similarly constituted for redetermination in accordance with these reasons 3.These orders do not come into effect until 60 days after the date of this decision.