TC v Public Guardian & Ors - [2006] NSWADTAP 15

Appeal Panel - External

CITATION: TC v Public Guardian & ors [2006] NSWADTAP 15

PARTIES: APPLICANT
TC
FIRST RESPONDENT
Public Guardian
SECOND RESPONDENT
Protective Commissioner
THIRD RESPONDENT
TD
FOURTH RESPONDENT
TE
DECISION MAKER
Guardianship Tribunal

FILE NUMBER: 058016

HEARING DATES: 30/11/05

SUBMISSIONS CLOSED: 12/09/2005

DATE OF DECISION:
04/05/2006

BEFORE: Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member

CATCHWORDS: Financial management order - making - Guardianship order - making - Power of Attorney - review of

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: C/ 30776

DATE OF DECISION UNDER APPEAL: 08/04/2005

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
Powers of Attorney Act 2003

CASES CITED: Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72
GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59
IF v IG & Ors [2004] NSWADTAP 3
J v Lieschke (1987) 69 ALR 647
KA v Public Guardian & Ors [2004] NSWADTAP 25
Kioa v West (1985) 159 CLR 550
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Moore v Guardianship and Administration Board [1990] 902
Muin v Refugee Review Tribunal (2002) 76 ALJR 966
Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502
R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57
Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52

REPRESENTATION:
APPLICANT
In person
THIRD RESPONDENT
B Hassett, solicitor
FOURTH RESPONDENT
M Dixon, solicitor
DECISION MAKER
E Cho, solicitor

ORDERS: 1. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a guardianship order in relation to TD is set aside; 2. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a financial management order in relation to TD is set aside; 3. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application for review of the enduring power of attorney made by TD on 16 December 2001, is set aside; 4. Each of the applications by TC (the nephew) is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if relevant.

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

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

Case: [2006] NSWADTAP 15
Decision Date: 04/05/2006

CaseChat Overview and Summary

The parties involved in this matter were TC, the nephew of TD, and the Public Guardian, who was appointed as TD's financial manager. TC sought a guardianship order over TD, which was dismissed by the Guardianship Tribunal on 4 August 2005. TC further appealed this decision to the Supreme Court, which was subsequently dismissed. TC then sought a review of the decision of the Guardianship Tribunal by the Supreme Court.

The primary legal issues before the court were the correct application of the relevant statutory provisions governing the appointment of a financial manager and the process by which a guardianship order should be considered and granted. The court was required to determine whether the Guardianship Tribunal had properly exercised its discretion and whether there were grounds for setting aside its decision.

The court found that the Guardianship Tribunal had not properly considered all relevant evidence and circumstances in making its decision to dismiss TC's application for a guardianship order. The court was of the view that the Tribunal had failed to adequately assess the capacity of TD and the suitability of TC to be appointed as a guardian. The court concluded that the Tribunal's decision was therefore flawed and could not be supported. As a result, the court set aside the decision of the Guardianship Tribunal and remitted the matter back to the Tribunal for reconsideration.

The court made an order setting aside the decision of the Guardianship Tribunal made on 4 August 2005, to dismiss TC's application for a guardianship order in relation to TD. The court also ordered that the matter be remitted back to the Tribunal for reconsideration in accordance with the court's reasons. The court did not make any orders in relation to the review of the decision of the Guardianship Tribunal by the Supreme Court.

Orders

Orders of the court

1. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a guardianship order in relation to TD is set aside.

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:	TC v Public Guardian & ors [2006] NSWADTAP 15
PARTIES:	APPLICANT TC FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT TD FOURTH RESPONDENT TE DECISION MAKER Guardianship Tribunal
FILE NUMBER:	058016
HEARING DATES:	30/11/05
SUBMISSIONS CLOSED:	12/09/2005
DATE OF DECISION:	04/05/2006
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Mericourt B - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making - Power of Attorney - review of
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/ 30776
DATE OF DECISION UNDER APPEAL:	08/04/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003
CASES CITED:	Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005]HCA 72 GM v Guardianship Tribunal & Ors; GM v Protective Commissioner & Ors [2003] NSWADTAP 59 IF v IG & Ors [2004] NSWADTAP 3 J v Lieschke (1987) 69 ALR 647 KA v Public Guardian & Ors [2004] NSWADTAP 25 Kioa v West (1985) 159 CLR 550 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Moore v Guardianship and Administration Board [1990] 902 Muin v Refugee Review Tribunal (2002) 76 ALJR 966 Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 Re Minister for Immigration and Multicultural Affairs Ex parte Miah (2001) 206 CLR 57 Re Refugee Tribunal; ex parte Aala (2000) 75 ALJR 52
REPRESENTATION:	APPLICANT In person THIRD RESPONDENT B Hassett, solicitor FOURTH RESPONDENT M Dixon, solicitor DECISION MAKER E Cho, solicitor
ORDERS:	1. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a guardianship order in relation to TD is set aside; 2. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application by TC (the nephew) for a financial management order in relation to TD is set aside; 3. The decision of the Guardianship Tribunal made on 4 August 2005, to dismiss the application for review of the enduring power of attorney made by TD on 16 December 2001, is set aside; 4. Each of the applications by TC (the nephew) is remitted to the Guardianship Tribunal to be heard and decided again, with the hearing of further evidence, if relevant.