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Ms A v Public Guardian & Ors

Ms A v Public Guardian & Ors

Case [2006] NSWADTAP 55 27 October 2006

Natural Justice & Procedural Fairness

Procedural fairness

Guardianship order - making

Family Law

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Appeal Panel - External

CITATION: Ms A v Public Guardian & Ors [2006] NSWADTAP 55

PARTIES: APPLICANT
Ms A
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
XS
FOURTH RESPONDENT
Ms B
FIFTH RESPONDENT
Mr D
SIXTH RESPONDENT & DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 068011

HEARING DATES: 20/10/06

SUBMISSIONS CLOSED: 10/23/2006

DATE OF DECISION:
10/27/2006

BEFORE: Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Wunsch A - Non Judical Member

CATCHWORDS: Financial management order - making - Guardianship order - making - Procedural fairness - Relevant/irrelevant considerations

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: Guardianship Tribunal C/31709

DATE OF DECISION UNDER APPEAL: 05/26/2006

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Guardianship and Administration Act1993 (S.A.)
Interpretation Act 1987
Protected Estates Act 1983

CASES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
IF v IG & Ors [2004] NSWADTAP 3
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309
Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 ALD 291
Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Weal v Bathurst City Council (2000) 111 LGERA 181

REPRESENTATION:
APPLICANT
N Perram, SC
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
No appearance
THIRD RESPONDENT
No appearance
FOURTH RESPONDENT
D Khoury, solicitor
FIFTH RESPONDENT
A Bartlett, barrister
SIXTH RESPONDENT & DECISION MAKER
E Cho, solicitor

ORDERS: 1. The Financial Management Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is affirmed; 2. The Guardianship Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is set aside. This order takes effect on 3 November 2006; 3. Leave to extend the appeal to other grounds is refused; 4. The Guardianship application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, in accordance with this decision. This order takes effect on 3 November 2006.

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…

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 Ms A v Public Guardian & Ors

Details

AGLC: Ms A v Public Guardian & Ors [2006] NSWADTAP 55
Case: [2006] NSWADTAP 55
Decision Date: 27/10/2006

CaseChat Overview and Summary

In Ms A v Public Guardian & Ors, Ms A, as the next friend of XS, appealed against the decisions of the Guardianship Tribunal to make a Financial Management Order and a Guardianship Order in relation to XS. The case was heard in the Supreme Court of Victoria. Ms A contested both the financial management and guardianship orders, asserting that the Tribunal had failed to observe procedural fairness by considering irrelevant factors.

The court examined whether the Guardianship Tribunal had adhered to procedural fairness by considering only relevant factors. Specifically, it assessed whether the Tribunal had made an error in determining the appropriate orders by taking into account irrelevant considerations. The court was also required to determine whether the Financial Management Order and the Guardianship Order were correctly made.

The court found that the Tribunal had indeed erred by considering irrelevant factors in making the Guardianship Order. The Tribunal had failed to observe procedural fairness by taking into account matters that were not pertinent to the decision-making process. Consequently, the Guardianship Order was set aside and the matter was remitted to the Tribunal for reconsideration. However, the Financial Management Order was affirmed as the Tribunal had correctly considered the relevant factors in making that order. The court further clarified that the Guardianship application should be heard and decided again, with the opportunity for further evidence to be presented in accordance with the court's decision.

Orders

Orders of the court

1. The Financial Management Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is affirmed;

2. The Guardianship Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is set aside. This order takes effect on 3 November 2006;

3. Leave to extend the appeal to other grounds is refused; 4. The Guardianship application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, in accordance with this decision. This order takes effect on 3 November 2006.

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

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Citations

AGLC Citation

Ms A v Public Guardian & Ors [2006] NSWADTAP 55

Most Recent Citation

LON [2017] NSWCATGD 26

Cases citing this decision · 5 of 5 shown

LON
[2017] NSWCATGD 26 Para 10

…not actually a resident (see, for example, EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501; and Ms A v Public Guardian & Ors [2006] NSWADTAP 55).…
AOJ v NSW Trustee and Guardian
[2013] NSWADTAP 38

…t observing a principle does not mean that, where a discretion exists, a decision maker must make a particular decision: Ms A v Public Guardian & Ors [2006] NSWADTAP 55 (27 October 2006).…
EB & Ors v Guardianship Tribunal & Ors
[2011] NSWSC 767 Para 1

…In Ms A v Public Guardian & Ors [2006] NSWADTAP 55, at [14], it was said that the approach adopted by Giles JA in Weal v Bathurst City Council [2000] NSWCA 88; (2000) 111 LGERA 181, at 201, to the words "shall have regard to" means that there must be a process of evaluation and requires more than simply adverting to…
GN v Public Guardian
[2008] NSWADTAP 71

…ION CITED: Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 CASES CITED: IF v IG & Ors [2004] NSWADTAP 3 Ms A v Public Guardian & Ors [2006] NSWADTAP 55 Weal v Bathurst City Council (2000) 111 LGERA 181 REPRESENTATION: APPELLANT P Fazio, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT S Fri…
DG v Public Guardian
[2008] NSWADTAP 58

…DTAP 13 CZ v Public Guardian & ors [2008] NSWADTAP 42 House v The King (1936) 55 CLR 499 IF v IG & Ors [2004] NSWADTAP 3 Ms A v Public Guardian & Ors [2006] NSWADTAP 55 R v Australian Broadcasting Tribunal; Ex p. Hardiman (1980) 144 CLR 13 REPRESENTATION: APPELLANT M Armstrong, barrister instructed by B Ramjam guardi…

View all 5 citing cases →

Cases cited in this decision · 9 of 9 shown

IF v IG
[2004] NSWADTAP 3

…SES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 A…
Weal v Bathurst City Council
[2000] NSWCA 88

…699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v Bathurst City Council (2000) 111 LGERA 181 REPRESENTATION: APPLICANT N Perram, SC FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOUR…
EMG v Guardianship and Administration Board of Victoria
[1999] NSWSC 501

…7 Protected Estates Act 1983 CASES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Go…
Kumagai Gumi Co Ltd v Federal Commissioner of Taxation
[1999] FCA 235

…iners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 ALD 291 Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v…
Collector of Customs v Pozzolanic Enterprises Pty Ltd
[1993] FCA 456

…1987 Guardianship and Administration Act1993 (S.A.) Interpretation Act 1987 Protected Estates Act 1983 CASES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miner…
Minister for Aboriginal Affairs v Peko-Wallsend Ltd
[1986] HCA 40

…ion, Local Government and Ethnic Affairs 14 ALD 291 Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v Bathurst City Council (2000) 111 LGERA 181 REPRESENTATION: APPLICANT N…
R v Australian Broadcasting Tribunal; Ex Parte Hardiman
[1980] HCA 13

…FCT 1999) 161 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v Bathurst City Council (2000) 111 LGERA 181 REPRESENTATION: APPLICANT N Perram, SC FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance…
Jumbunna Coal Mine NL v Victorian Coal Miners' Association
[1908] HCA 95

…ip and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 ALD 291 Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 Minister for Aboriginal Aff…
Collector of Customs v Pozzolanic
(1993) FCR 280

…ribunal Act 1997 Guardianship Act 1987 Guardianship and Administration Act1993 (S.A.) Interpretation Act 1987 Protected Estates Act 1983 CASES CITED: Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian…

Legislation cited in this decision · 4

Protected Estates Act 1983 (NSW)
76(5) 2 mentions
Administrative Decisions Tribunal Act 1997 (NSW)
1 mention
Guardianship Act 1987 (NSW)
1 mention
Interpretation Act 1987 (NSW)
1 mention

CITATION:	Ms A v Public Guardian & Ors [2006] NSWADTAP 55
PARTIES:	APPLICANT Ms A FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT XS FOURTH RESPONDENT Ms B FIFTH RESPONDENT Mr D SIXTH RESPONDENT & DECISION MAKER Guardianship Tribunal
FILE NUMBER:	068011
HEARING DATES:	20/10/06
SUBMISSIONS CLOSED:	10/23/2006
DATE OF DECISION:	10/27/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Wilson R - Judicial Member; Wunsch A - Non Judical Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Procedural fairness - Relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	Guardianship Tribunal C/31709
DATE OF DECISION UNDER APPEAL:	05/26/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Guardianship and Administration Act1993 (S.A.) Interpretation Act 1987 Protected Estates Act 1983
CASES CITED:	Collector of Customs v Pozzolanic (1993) 43 FCR 280 EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501 IF v IG & Ors [2004] NSWADTAP 3 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309 Khan v Minister for Immigration, Local Government and Ethnic Affairs 14 ALD 291 Kumagai Gumi Co Ltd v FCT 1999) 161 ALR 699 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Weal v Bathurst City Council (2000) 111 LGERA 181
REPRESENTATION:	APPLICANT N Perram, SC FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT D Khoury, solicitor FIFTH RESPONDENT A Bartlett, barrister SIXTH RESPONDENT & DECISION MAKER E Cho, solicitor
ORDERS:	1. The Financial Management Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is affirmed; 2. The Guardianship Order made by the Guardianship Tribunal on 26 May 2006 in relation to XS is set aside. This order takes effect on 3 November 2006; 3. Leave to extend the appeal to other grounds is refused; 4. The Guardianship application is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, in accordance with this decision. This order takes effect on 3 November 2006.