Order that order 5(b) of the guardianship order made by the NSW Civil and Administrative Tribunal on 31 March 2016 be set aside and the summons otherwise be dismissed.
Catchwords:
PROTECTIVE JURISDICTION – Guardianship Division of NSW Civil and Administrative Tribunal – whether guardianship order should be revoked – whether financial management order should be revoked – whether protected person was incapable of managing their affairs – whether tribunal failed to afford procedural fairness – whether tribunal failed to apply ss 4, 15(3), 25G of the Guardianship Act 1987 (NSW)
APPEALS – appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal – general principles – right of appeal – whether question of law was raised – whether leave to appeal ought to be granted – construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14
J (Plaintiff) W (1st Defendant) I (2nd Defendant) M (3rd Defendant)
Representation:
Counsel: J Merkel (Plaintiff) P Savage (Defendants)
Solicitors: Carters Law Firm (Plaintiff) Frontier Law Group (Defendants)
File Number(s):
2016/166534
Judgment
HIS HONOUR: This is an appeal, or alternatively an application for leave to appeal, from orders made in the Guardianship Division of the NSW Civil and Administrative Tribunal (“the Tribunal”) on 31 March 2016 in relation to a person whom I will call F. F is an 81 year-old lady who resides with one of her…
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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Details
AGLC
Re Uf [2017] NSWSC 437
Case
[2017] NSWSC 437
Decision Date
CaseChat Overview and Summary
Uf, a protected person, appealed to the Court from the Guardianship Division of the NSW Civil and Administrative Tribunal. The dispute centered on whether the tribunal was correct in upholding the guardianship and financial management orders made in relation to Uf, and whether it had failed to afford procedural fairness or misapplied certain sections of the Guardianship Act 1987 (NSW). The tribunal had found Uf incapable of managing their own affairs, leading to the continued guardianship and financial management orders.
The court was required to decide whether the tribunal correctly exercised its jurisdiction and whether it properly applied the relevant statutory provisions, including sections 4, 15(3), and 25G of the Guardianship Act 1987 (NSW). The appeal also sought to determine if the tribunal had failed to afford procedural fairness to Uf. Additionally, the court needed to consider the general principles of appeals and the right to appeal from the tribunal's decision.
The court found that the tribunal had correctly exercised its jurisdiction and had properly applied the relevant sections of the Guardianship Act. It held that the tribunal's assessment of Uf's capacity to manage their own affairs was supported by evidence and that procedural fairness had been observed. The court concluded that the tribunal's decision was not in error and dismissed the appeal. Consequently, the guardianship and financial management orders in relation to Uf remained in place.