Vu v NSW Trustee and Guardian

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

VU v NSW Trustee and Guardian [2011] NSWADTAP 45

Hearing dates:

18 March 2011

Decision date:

06 October 2011

Jurisdiction:

Appeal Panel - External

Before:

S Higgins, Deputy President
J Millar, Judicial Member
M Bolt, Non-Judicial Member

Decision:

1.Leave to appeal on the merits is refused.

2.Appeal dismissed.

Catchwords:

APPEAL - question of law - procedural fairness - bias

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Powers of Attorney Act 2003

Cases Cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63
FX v NSW Trustee & Guardian (External) [2011] NSWADTAP 31
K v K [2000] NSWSC 1052
Minister for Immigration and Multicultural affairs v Jai (2001) 2005 CLR 507
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Re R [2000] NSWSC 886
Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
S v S [2001] NSWSC 146

Category:

Principal judgment

Parties:

VU - Appellant
NSW Trustee and Guardian - First Respondent
VV - Second Respondent
VW -Third Respondent

Representation:

VU (Appellant in person)
NSW Trustee and Guardian (First Respondent) (submitting appearance)
Jessep & Storm Solicitors (Second Respondent)
CBD Legal (the Protected Person)

File Number(s):

108007

Publication restriction:

s 126 of the Administrative Decisions Tribunal Act 1997 applies

 Decision under appeal 

Date of Decision:

2010-07-16 00:00:00

File Number(s):

C/43673

REASONS FOR DECISION

Introduction

1. EXTERNAL APPEAL (S Higgins, Deputy President; J Millar, Judicial Member; M Bolt, Non-Judicial Member) The appellant, VU has appealed against a decision of the Guardianship Tribunal to make orders concerning her mother, VW. The orders made by the Guardianship Tribunal were (a) a guardianship order in respect of VW under the provisions of the Guardianship Act 1987. The Public Guardian and VU were appointed separately as the guardians and the order was a continuing order for 12 months, and (b) an order that the estate of VW be made subject to management under the provisions of the NSW Trustee and Guardians Act 2009, with the management of her estate being committed to the NSW Trustee.

1. VU has appealed against the Guardianship Tribunal's decisions on a question of law. In addition to this VU seeks leave to appeal on the merits of the Guardianship Tribunal's decision: see the Administrative Decisions Tribunal Act 1997 (the ADT Act), subsection 118B(1).

1. VW has three children, two daughters and a son. She is an 85 year old widow who resides in a dementia-specific high-care unit in a nursing home. On 20 March 2008, VW appointed her daughter, VU (the appellant) as her attorney under an enduring power of attorney. At the same time, VW appointed VU as her enduring guardian. Prior to November 2009, VW was living in her own home. For 5 years, VV, VW's son, had been living with her, on a permanent basis, as her carer. On 23 November 2009, VW was admitted to hospital after dislocating her shoulder.…