CITATION: XO v Protective Commissioner [2006] NSWADT 322 DIVISION: General Division PARTIES: APPLICANT
XO
RESPONDENT
Protective CommissionerFILE NUMBER: 063265 HEARING DATES: 19/10/06, 03/11/06 SUBMISSIONS CLOSED: 11/03/2006
DATE OF DECISION:
11/10/2006BEFORE: Hennessy N - Magistrate (Deputy President) CATCHWORDS: Protected Estates Act - Protective Commissioner - powers as to property - Protective Commissioner - powers as to property MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Guardianship Act 1987CASES CITED: MB v Protective Commissioner [2000] NSWSC 717Re R [2000] NSWSC 886The Protective Commissioner v "D" & Ors [2004] NSWCA 216 REPRESENTATION: APPLICANT
RESPONDENT
In person
C Phang, solicitorORDERS: 1. The decision of the Protective Commissioner to decline to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on behalf of XO is set aside; 2. In substitution for that decision a decision is made to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on XO’s behalf.
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 1983
(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.
(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:
(a) who appears as a witness before the Tribunal in any proceedings, or
(b) to whom any proceedings before the Tribunal relate, or
(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,
whether before or after the proceedings are disposed of.
Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.
(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.
(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
REASONS FOR DECISION
Introduction
1 XO is a man in his mid 50s whose leg was badly broken in a work related accident. When in hospital he suffered a pulmonary embolism which led to brain damage and subsequent cognitive defects. XO’s case manager applied to the Guardianship Tribunal for a financial management order because, she said, he was behaving irrationally and wasting his money gambling. The Guardianship Tribunal made a financial management order…
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- AGLC
- XO v Protective Commissioner [2006] NSWADT 322
- Case
- [2006] NSWADT 322
- Decision Date
CaseChat Overview and Summary
The court examined the relevant legislation and the facts of the case, considering whether the decision was made in accordance with the law and whether there were any errors of law or procedural unfairness. The court found that the decision to decline the loan was not supported by the law and was therefore invalid. The court held that the decision should be set aside and replaced with a decision to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on XO's behalf. The court also noted that Section 126 of the Administrative Decisions Tribunal Act 1997 applied to this decision.
The court ordered that the decision of the Protective Commissioner to decline to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on behalf of XO be set aside. In its place, the court made a decision to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on XO's behalf. The court also noted that Section 126 of the Administrative Decisions Tribunal Act 1997 applied to this decision. This meant that the decision could be reviewed by the Administrative Decisions Tribunal, providing a further layer of scrutiny and accountability. Overall, the court's decision provided some clarity on the legal framework governing the actions of the Protective Commissioner and provided a remedy for XO.
Orders
Orders of the court
1. The decision of the Protective Commissioner to decline to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on behalf of XO is set aside; 2. In substitution for that decision a decision is made to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on XO's behalf. Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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