VM v NSW Trustee and Guardian - [2011] NSWADTAP 13

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: VM v NSW Trustee and Guardian [2011] NSWADTAP 13
Hearing dates: 12 December 2010
Decision date: 25 March 2011
Before: Magistrate N Hennessy, Deputy President
J Millar, Judicial Member
Dr B Field, Non-Judicial Member
Decision:
1.The decision of the Guardianship Tribunal to make a financial management order and appoint the NSW Trustee and Guardian as VNâ€™s financial manager is set aside.
2.The matter is remitted to the Guardianship Tribunal to be heard and decided again in accordance with these reasons.
3. Order 1 takes effect on the date the Guardianship Tribunal delivers a new decision.

Catchwords: APPEAL - financial management order appointing NSW Trustee- question of law - whether breach of procedural fairness - whether reasons adequate
Legislation Cited: Administrative Decisions Tribunal Act 1997
Guardianship Act 1989
Powers of Attorney Act 2003
Cases Cited: Szozda v Szozda [2010] NSWSC 804 IS v Public Guardian [2009] NSWADTAP 24
Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87
TP v TR (No 2) [2006] NSWADTAP 12
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Italiano v Carbone [2005] NSWCA 177
Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149
Haines v Leves (1 987) 8 NSWLR 442
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376
Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311
Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263
Nominal Defendant v Kostic [2007] NSWCA 14 Nikolovski v Telstra Corp Ltd [2002] FCA 846
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Alchin v Daley [2009] NSWCA 418
Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category: Principal judgment
Parties: VM (Appellant)
NSW Trustee and Guardian (First Respondent)
VN (Second Respondent)
VO (Third Respondent)
Representation: VM (Appellant in person)
L Barry (Guardian ad litem Second Respondent)

File Number(s): 108006
Publication restriction: Section 75 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal

Citation:

2009/8565, 2010/3220

Date of Decision:

2010-06-24 00:00:00

Before:

J Connelly J Garrard L Stewart

File Number(s):

2009/8565, 2010/3220

REASONS FOR DECISION

Introduction

VM has appealed to the Appeal Panel against a decision of the Guardianship Tribunal to make a financial management order in relation to his mother, VN. The Guardianship Tribunal appointed the NSW Trustee and Guardian, who we will refer to in these reasons as the NSW Trustee, as VNâ€™s financial manager. Prior to the Guardianship Tribunalâ€™s decision, VM had been managing his motherâ€™s financial affairs pursuant to a power of attorney his mother had given him in December 2009. A power of attorney is suspended when a financial management order is made: Powers of Attorney Act 2003, s 50(3).

VN has dementia but is still able to live by…

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: [2011] NSWADTAP 13
Decision Date: 25 March 2011

CaseChat Overview and Summary

In the case of VM v NSW Trustee and Guardian, the appellant, VM, challenged the decision of the Guardianship Tribunal to appoint the NSW Trustee and Guardian as the financial manager of the respondent, VN. The Guardianship Tribunal had made the financial management order on the basis that VN lacked the capacity to manage his or her own finances. The appeal was heard in the Supreme Court of New South Wales. The appellant contended that the Guardianship Tribunal had breached procedural fairness in making the order, and that the reasons provided were inadequate.

The central legal issues the court had to address were whether the Guardianship Tribunal had breached procedural fairness in making the financial management order, and whether the reasons provided were adequate. The court examined the principles of procedural fairness, including the requirement for a fair hearing and the provision of reasons for a decision. The court also considered the adequacy of the reasons provided by the Guardianship Tribunal in light of the seriousness of the decision to appoint a financial manager.

The court found that the Guardianship Tribunal had breached procedural fairness by failing to provide adequate reasons for its decision. The court held that the reasons provided were insufficient to justify the appointment of a financial manager, as they did not address the specific concerns raised by the appellant regarding the respondent's capacity to manage their own finances. The court also found that the reasons did not demonstrate that the Guardianship Tribunal had considered all relevant information and factors in making its decision. As a result, the court set aside the decision of the Guardianship Tribunal and remitted the matter back to the Tribunal to be heard and decided again in accordance with the court's reasons. The order took effect on the date the Guardianship Tribunal delivered a new decision.

Orders

Orders of the court

1.The decision of the Guardianship Tribunal to make a financial management order and appoint the NSW Trustee and Guardian as VNâ€™s financial manager is set aside.

2.The matter is remitted to the Guardianship Tribunal to be heard and decided again in accordance with these reasons.

3. Order 1 takes effect on the date the Guardianship Tribunal delivers a new decision.

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.

Medium Neutral Citation:	VM v NSW Trustee and Guardian [2011] NSWADTAP 13
Hearing dates:	12 December 2010
Decision date:	25 March 2011
Before:	Magistrate N Hennessy, Deputy President J Millar, Judicial Member Dr B Field, Non-Judicial Member
Decision:	1.The decision of the Guardianship Tribunal to make a financial management order and appoint the NSW Trustee and Guardian as VNâ€™s financial manager is set aside. 2.The matter is remitted to the Guardianship Tribunal to be heard and decided again in accordance with these reasons. 3. Order 1 takes effect on the date the Guardianship Tribunal delivers a new decision.
Catchwords:	APPEAL - financial management order appointing NSW Trustee- question of law - whether breach of procedural fairness - whether reasons adequate
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1989 Powers of Attorney Act 2003
Cases Cited:	Szozda v Szozda [2010] NSWSC 804 IS v Public Guardian [2009] NSWADTAP 24 Jia v Minister for Immigration and Multicultural Affairs (1998) 84 FCR 87 TP v TR (No 2) [2006] NSWADTAP 12 KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 Italiano v Carbone [2005] NSWCA 177 Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149 Haines v Leves (1 987) 8 NSWLR 442 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board of New South Wales v Osmond [1986] HCA 7; (1986) 159 CLR 656 Absolon v NSW TAFE [1999] NSWCA 311 Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 Nominal Defendant v Kostic [2007] NSWCA 14 Nikolovski v Telstra Corp Ltd [2002] FCA 846 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Alchin v Daley [2009] NSWCA 418 Whalan v Kogarah Municipal Council [2007] NSWCA 5
Category:	Principal judgment
Parties:	VM (Appellant) NSW Trustee and Guardian (First Respondent) VN (Second Respondent) VO (Third Respondent)
Representation:	VM (Appellant in person) L Barry (Guardian ad litem Second Respondent)
File Number(s):	108006
Publication restriction:	Section 75 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal	Citation: 2009/8565, 2010/3220 Date of Decision: 2010-06-24 00:00:00 Before: J Connelly J Garrard L Stewart File Number(s): 2009/8565, 2010/3220