The Protective Commissioner v "D" & Ors [2004] NSWCA 216
HEARING DATE(S):
24 November 2003
JUDGMENT DATE:
5 July 2004
JUDGMENT OF:
Mason P at 1; Giles JA at 2; McColl JA at 7
DECISION:
1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person. 2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent. 3. The parties have liberty to apply within 7 days in relation to order 2. 4. Order that the matter be remitted to the Protective Judge.
CATCHWORDS:
PROTECTED ESTATES - Protective Commissioner - Powers - whether the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) to make payment for past gratuitous care out of the estate of the protected person. (D)
LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997 (NSW) s 53(6) Aged and Infirm Persons Property Act 1940 - 1984 (SA) Guardianship and Protected Estates Legislation Act 2002 (NSW) s 2 Interpretation Act 1987 (NSW) s 33 Lunacy Act 1878 (NSW) s 3, s 92, Pt VIII, Subdiv (1), s 105, s 106, Subdiv (2), s 141, s 144, Subdiv (3), s 151, s 151(a), s 158, s 159, s 160, s 161, s 162, s 163, s 164, s 165, s 166 Lunacy Act 1890 (Imp) s 116(1)(d) Lunacy Act 1898 (NSW) s 3, s 102, s 103, Pt VIII, Subdiv (2), s 126, s 131, Subdiv (3), s 149(1), s 150 Lunacy Act Further Amendment Act 1893 (NSW) s 1, s 21, s 25 Lunacy Convention Act 1894 (NSW) s 14(1), s 18 Mental Health Act 1958 (NSW) s 3, s 38, s 39, Pt X cll 37-50, Pt XI, s 51, s 52, s 52(1), Div 2, s 59, s 61, s 61(g), s 66, s 66(b), s 66(f), s 67, Div 3, s 81, s 81(1), 81(1)(a), s 81(1)(c), s 81(1)(d), s 82, s 82(h), s 89, s 91, s 92 Mental Health Act 1963 (Tas) s 84(1), s 84(1)(a), s 84(1)(b), s 84(1)(c), s 94(3) Miscellaneous (Mental Health) Appeal and Amendment Act 1983 (NSW) New South Wales Constitution Act 1855 (Imp) s 2 Protected Estates Act 1983 (NSW) s 2(2), s 4, Pt II, s 5(1), s 5(3), s 5(8), s 5(9), s 12, Pt III, s 13, s 13(1), s 22, Div 3, s 24, s 24(2), s 25, s 26, s 27, s 28, s 28(1), s 28(1)(a), s 28(1)(b), s 28(1)(c), s 28(1)(d), Div 4, s 29, s 30, s 32, s 77 Public Trustee Act 1985 (ACT) s 25(7)(b) Statute of Praerogativa Regis, later reprinted as two Acts, 17 Ed. II (1339) cc 9 & 10 Succession Duty Act 1853 (Imp) Supreme Court Rules 1970 (NSW)…
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.
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AGLC
Protective Commissioner v D [2004] NSWCA 216
Case
[2004] NSWCA 216
Decision Date
CaseChat Overview and Summary
The Protective Commissioner sought directions from the Court of Appeal of New South Wales regarding its power to make payments for past gratuitous care from the estate of a protected person, identified as D. The central dispute concerned the interpretation of the *Protected Estates Act 1983* (NSW) and whether it authorised such payments.
The primary legal issue before the Court was whether the Protective Commissioner possessed the statutory authority, specifically under section 28(1)(b) of the *Protected Estates Act 1983*, to make payments from a protected person's estate to reimburse individuals for gratuitous care previously provided to that person.
The Court determined that the Protective Commissioner did have the power to make such payments. Applying section 28(1)(b) of the Act, which permits the Protective Commissioner to make payments for the maintenance, support, and benefit of the protected person, the Court reasoned that past gratuitous care could be considered a necessary expense for the protected person's maintenance and benefit. Therefore, the Court directed that the Protective Commissioner had the power under the Act, and specifically section 28(1)(b), to make payments for past gratuitous care out of the protected person's estate. The costs of the application were ordered to be paid out of the estate, with liberty to apply regarding those costs.
Orders
Orders of the court
1. Pursuant to s 12 of the Protected Estates Act 1983 (NSW), the Court directs that the Protective Commissioner has power under the Protected Estates Act 1983 (NSW) and in particular s 28(1)(b) thereof to make payment for past gratuitous care out of the estate of the protected person. 2. Costs of the section 12 Application to be paid out of the Estate of the First Respondent. 3. The parties have liberty to apply within 7 days in relation to order 2. 4. Order that the matter be remitted to the Protective Judge.