N v Protective Commissioner

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Appeal Panel - External


CITATION: N v Protective Commissioner and ors [2007] NSWADTAP 68
PARTIES:

APPELLANT
N

FIRST RESPONDENT
Protective Commissioner

SECOND RESPONDENT
Nursing Home Owner 1

THIRD RESPONDENT
Nursing Home Owner 2

FOURTH RESPONDENT
M

DECISION MAKER
Guardianship Tribunal
FILE NUMBER: 078001
HEARING DATES: 1 June 2007
SUBMISSIONS CLOSED: 1 June 2007
 
DATE OF DECISION: 
19 November 2007
BEFORE: Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Whaite A - Non Judicial Member
CATCHWORDS: Financial management order - review - Opportunity to be heard - Opportunity to respond to adverse evidence - Procedural fairness
MATTER FOR DECISION: Principal matter
DATE OF DECISION UNDER APPEAL: 12/19/2006
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992
Kioa v West (1985) 159 CLR 550R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
REPRESENTATION:

APPELLANT
P Freed, solicitor

FIRST RESPONDENT
No appearance
SECOND RESPOPNDENT
In person
THIRD RESPONDENT
In person
FOURTH RESPONDENT
No appearance
DECISION MAKER
E Cho, solicitor
ORDERS: The Tribunal’s decision is affirmed.; The appeal is dismissed.
    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 or other material that identifies the person or is likely to lead to the identification of the person.

Introduction

1 M is an elderly woman who lives in a nursing home. She has dementia. The owners…

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Details
Case
[2007] NSWADTAP 68
Decision Date

CaseChat Overview and Summary

The case of N v Protective Commissioner involved a dispute over a financial management order. The matter was heard by the Administrative Appeals Tribunal of Australia. The applicant, N, sought a review of a decision made by the Protective Commissioner to impose a financial management order due to N's inability to manage their own financial affairs. N contended that the decision lacked procedural fairness because they were not given a proper opportunity to be heard and respond to adverse evidence.

The key legal issues the court needed to address were whether the applicant was afforded a fair opportunity to be heard and respond to adverse evidence, and whether the decision was made in accordance with procedural fairness. The court had to consider whether the Tribunal provided N with a sufficient opportunity to present their case and respond to the evidence against them, and whether the process adhered to the principles of natural justice.

The court found that the Tribunal had indeed provided N with an opportunity to be heard and respond to adverse evidence, even though N claimed otherwise. The court held that the procedural fairness was not compromised because N had the opportunity to present their case and challenge the evidence. The court concluded that the Tribunal's decision was lawful and in accordance with the principles of procedural fairness. Consequently, the appeal was dismissed, and the decision of the Tribunal was affirmed.

No additional orders were made beyond affirming the Tribunal's decision and dismissing the appeal. The decision is subject to the provisions of Section 126 of the Administrative Decisions Tribunal Act 1997, which applies to certain types of decisions made by the Tribunal.

Orders

Orders of the court

The Tribunal's decision is affirmed.; The appeal is dismissed. 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

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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