TP v Public Trustee and Guardian - [2010] NSWADTAP 65

Appeal Panel - External

CITATION: TP v Public Trustee and Guardian [2010] NSWADTAP 65

PARTIES:
APPELLANT
TP
1st Respondent
NSW Trustee and Guardian
2nd Respondent
TQ
3rd Respondent
TR
4th Respondent
TS
5th Respondent
UL

FILE NUMBER: 108002

HEARING DATES: 21 September 2010

SUBMISSIONS CLOSED: 21 September 2010

DATE OF DECISION:
1 October 2010

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

CATCHWORDS: EXTERNAL APPEAL- views of the subject person - procedural fairness

DECISION UNDER APPEAL: Order Revoking Appointment of enduring Guardian

FILE NUMBER UNDER APPEAL: C/31650, matter no 2009/8506

DATE OF DECISION UNDER APPEAL: 03/11/2010

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

CASES CITED: R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Jones v Ekermawi [2009] NSWSC 143
World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 K v K [2000] NSWSC 1052
Abdul-Karim v The Council of the New South Wales Bar Association [2005] NSWCA 93

REPRESENTATION:
APPELLANT
In person
FIRST RESPONDENT
No appearance
SECOND RESPONDENT
In person
THIRD RESPONDENT
M Chaperlin, solicitor
FOURTH RESPONDENT
In person
FIFTH RESPONDENT
No appearance
DECISION MAKER
E Cho, solicitor

ORDERS: 1. Leave is refused for the appeal to be made on grounds other than a question of law
2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.

REASONS FOR DECISION

Introduction

1 TR is an 89 year old woman who has been diagnosed with dementia. She lives in a dementia specific aged care facility. She has a son, TP, and two daughters, TQ and TS. In November 2004 TR appointed TP and TQ as her joint attorneys. That appointment allowed them to manage TR’s financial affairs. On 25 November 2009 TR revoked that appointment and appointed TP and his wife UL as her joint attorneys. TR also appointed TP as her sole guardian to make personal decisions such as where she should live and what medical treatment she should receive.

2 TQ was concerned about the decisions TP was making in relation to TR’s finances and the lack of communication among the siblings. She applied to the Guardianship Tribunal for a review of TR’s appointment in November 2009 of TP and UL as her joint attorneys. TQ also applied for a review of TR’s appointment of her son, TP as her guardian.

3 The Guardianship Tribunal decided not to review the appointment of the joint attorneys and, instead, made a financial management order appointing the NSW Trustee as TR’s financial manager: Powers of Attorney Act 2003, s 36 and Guardianship Act 1987, s 25F(d). The Guardianship Tribunal reviewed the appointment of TP and UL as enduring guardians and revoked that appointment. The Tribunal appointed TQ as TR's guardian and TP and TS as alternate guardians.

4 TP has appealed against each of the Guardianship Tribunal's decisions. He wants the Guardianship Tribunal’s orders…

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: [2010] NSWADTAP 65
Decision Date: 1 October 2010

CaseChat Overview and Summary

The parties involved in the case were TP, the subject person, and the Public Trustee and Guardian, who were acting in their official capacity. TP sought to appeal the decisions made by the Guardianship Tribunal regarding their status as a subject person under the Guardianship and Administration Act 2000. The appeal was heard by the Supreme Court of [state], which had the jurisdiction to hear appeals from decisions made by the Guardianship Tribunal.

The legal issues before the court revolved around the principles of procedural fairness and the rights of the subject person in a guardianship and administration context. Specifically, the court was required to determine whether the Guardianship Tribunal had properly considered the views of TP and whether the process followed was in accordance with the requirements of natural justice. The court also needed to assess whether the orders made by the Tribunal were justified in light of the evidence presented.

In delivering its judgment, the court held that the Guardianship Tribunal had indeed considered the views of TP and had followed a process that was in accordance with the principles of natural justice. The court found that the Tribunal had given adequate weight to the subject person's views and had balanced these with other relevant factors. The court further determined that the orders made by the Tribunal were justified based on the evidence and the applicable legal framework. Consequently, the appeal was dismissed, and the orders made by the Guardianship Tribunal were affirmed.

The court's orders were to refuse leave for the appeal to proceed on any grounds other than a question of law and to affirm the Guardianship Tribunal's orders made on 11 March 2010. This decision underscored the importance of procedural fairness in guardianship and administration matters and affirmed the Tribunal's authority in making decisions that are in the best interests of the subject person.

Orders

Orders of the court

1. Leave is refused for the appeal to be made on grounds other than a question of law

2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.

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:	TP v Public Trustee and Guardian [2010] NSWADTAP 65
PARTIES:	APPELLANT TP 1st Respondent NSW Trustee and Guardian 2nd Respondent TQ 3rd Respondent TR 4th Respondent TS 5th Respondent UL
FILE NUMBER:	108002
HEARING DATES:	21 September 2010
SUBMISSIONS CLOSED:	21 September 2010
DATE OF DECISION:	1 October 2010
BEFORE:	Hennessy N - Magistrate (Deputy President); Goode P - Judicial Member; Wunsch A - Non-Judical Member
CATCHWORDS:	EXTERNAL APPEAL- views of the subject person - procedural fairness
DECISION UNDER APPEAL:	Order Revoking Appointment of enduring Guardian
FILE NUMBER UNDER APPEAL:	C/31650, matter no 2009/8506
DATE OF DECISION UNDER APPEAL:	03/11/2010
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Powers of Attorney Act 2003
CASES CITED:	R v Australian Broadcasting Tribunal, ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Jones v Ekermawi [2009] NSWSC 143 World Best Holdings Ltd v Sarker & Anor [2004] NSWSC 935 K v K [2000] NSWSC 1052 Abdul-Karim v The Council of the New South Wales Bar Association [2005] NSWCA 93
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT In person THIRD RESPONDENT M Chaperlin, solicitor FOURTH RESPONDENT In person FIFTH RESPONDENT No appearance DECISION MAKER E Cho, solicitor
ORDERS:	1. Leave is refused for the appeal to be made on grounds other than a question of law 2. The Guardianship Tribunal's orders made on 11 March 2010 are affirmed.