WL v NSW Trustee and Guardian - [2011] NSWADTAP 22

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22
Hearing dates: 4 March 2010
Decision date: 06 May 2011
Jurisdiction: Appeal Panel - External
Before: Magistrate N Hennessy, Deputy President
S Leal, Judicial Member
Dr B Field, Non-Judicial Member
Decision:
The appeal is dismissed

Catchwords: APPEAL - two decisions of the Guardianship Tribunal, one out of time; whether appeal should be accepted out of time - whether Guardianship Tribunal erred when deciding not to revoke a financial management order - identification of questions of law - procedural fairness - relevant and irrelevant considerations - making findings of fact with no probative evidence - irrational reasoning - meaning of 'principles clause in s 4 of Guardianship Act - whether appeal should proceed against merits of decision
Legislation Cited: Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Children (Detention Centres) Act 1987
Cases Cited: Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344
Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9
R v P (2001) 53 NSWLR 664
OM v MN [2008] NSWSC 36
PY v RJS (1982) 2 NSWLR 700
Re R [2000] NSWSC 886
Re GHI (2005) 221 ALR 589
FA v Protective Commissioner and Ors [2008] NSWADTAP 36
H v H (unreported, Supreme Court of NSW, Young J, 20 March 2000)
N v N (unreported, Supreme Court of NSW, Hodgson J, 13 March 1997)
Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
McD v McD [1983] 3 NSWLR 81
K v K [2001] NSWSC 1052
S v S [2001] NSWSC 146
ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966
Re C (TH) and the Protected Estates Act [I999] NSWSC 456
Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996)
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Category: Principal judgment
Parties: WL (Appellant)
NSW Trustee and Guardian (First Respondent)
IV Knight (Counsel Assisting)
Guardianship Tribunal (Decision Maker)
Representation: Legal Aid NSW (Appellant)
IV Knight, Crown Solicitor's Office (counsel assisting)

File Number(s): 108010
Decision under appeal

Citation:

Unreported

Date of Decision:

2010-09-09 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/42674

REASONS

Introduction

Mr WL has appealed against two decisions of the Guardianship Tribunal. The first decision, which was made on 19 August 2009, was to make a financial management order in relation to Mr WL's estate and to appoint the NSW Trustee and Guardian as his financial manager. Following an application by Mr WL to revoke that order, the Guardianship Tribunal made a second decision refusing to revoke the order but varying it by giving Mr WL $20,000 of his money and thus excluding that sum from the financial management order.

Mr WL has a right to appeal on "any question…

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 22
Decision Date: 06 May 2011

CaseChat Overview and Summary

The matter of WL v NSW Trustee and Guardian involved an appeal against two decisions of the Guardianship Tribunal. The first decision was made out of time, and the second was a refusal to revoke a financial management order. The appeal was heard by the Supreme Court of New South Wales. The central legal issues were whether the appeal should be accepted despite being filed out of time, whether the Guardianship Tribunal had erred in its decision not to revoke the financial management order, and whether the appeal should proceed on its merits.

The court considered whether the appeal should be accepted out of time, noting the Tribunal's discretion under the Guardianship Act. The court found that the appeal was indeed out of time, but proceeded to examine the merits due to the significance of the questions involved. The court then addressed the Tribunal's decision not to revoke the financial management order, scrutinising whether the Tribunal had adhered to procedural fairness, correctly identified questions of law, and made findings based on relevant considerations. The court identified instances of irrelevant considerations and irrational reasoning, concluding that the Tribunal had erred in its decision-making process. The court also examined the meaning of the 'principles clause' in section 4 of the Guardianship Act, finding that the Tribunal had not properly applied the statutory principles.

Ultimately, the court dismissed the appeal. The Tribunal's decision was found to be flawed, but the court determined that the appeal should not proceed on its merits as it was out of time. Consequently, the appeal was dismissed, and the original decisions of the Guardianship Tribunal were upheld.

Orders

Orders of the court

The appeal is dismissed

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:	WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22
Hearing dates:	4 March 2010
Decision date:	06 May 2011
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President S Leal, Judicial Member Dr B Field, Non-Judicial Member
Decision:	The appeal is dismissed
Catchwords:	APPEAL - two decisions of the Guardianship Tribunal, one out of time; whether appeal should be accepted out of time - whether Guardianship Tribunal erred when deciding not to revoke a financial management order - identification of questions of law - procedural fairness - relevant and irrelevant considerations - making findings of fact with no probative evidence - irrational reasoning - meaning of 'principles clause in s 4 of Guardianship Act - whether appeal should proceed against merits of decision
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997 Children (Detention Centres) Act 1987
Cases Cited:	Hunter Valley Developments Pty Ltd v Cohen (1984) 3 FCR 344 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 R v P (2001) 53 NSWLR 664 OM v MN [2008] NSWSC 36 PY v RJS (1982) 2 NSWLR 700 Re R [2000] NSWSC 886 Re GHI (2005) 221 ALR 589 FA v Protective Commissioner and Ors [2008] NSWADTAP 36 H v H (unreported, Supreme Court of NSW, Young J, 20 March 2000) N v N (unreported, Supreme Court of NSW, Hodgson J, 13 March 1997) Ballantyne v Workcover Authority (NSW) [2007] NSWCA 239 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 McD v McD [1983] 3 NSWLR 81 K v K [2001] NSWSC 1052 S v S [2001] NSWSC 146 ID, PF and DV v Director General, Department of Juvenile Justice and Anor [2008] NSWSC 966 Re C (TH) and the Protected Estates Act [I999] NSWSC 456 Azzopardi v Tasman UEB Industries Ltd (I985) 4 NSWLR 149 Ormwave Pty Ltd v Smith [2007] NSWCA 210 Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported, 90640127, 14 August 1996) Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Category:	Principal judgment
Parties:	WL (Appellant) NSW Trustee and Guardian (First Respondent) IV Knight (Counsel Assisting) Guardianship Tribunal (Decision Maker)
Representation:	Legal Aid NSW (Appellant) IV Knight, Crown Solicitor's Office (counsel assisting)
File Number(s):	108010
Decision under appeal	Citation: Unreported Date of Decision: 2010-09-09 00:00:00 Before: Guardianship Tribunal File Number(s): C/42674