XO v Protective Commissioner - [2006] NSWADT 322

CITATION: XO v Protective Commissioner [2006] NSWADT 322

DIVISION: General Division

PARTIES: APPLICANT
XO
RESPONDENT
Protective Commissioner

FILE NUMBER: 063265

HEARING DATES: 19/10/06, 03/11/06

SUBMISSIONS CLOSED: 11/03/2006

DATE OF DECISION:
11/10/2006

BEFORE: 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 1987

CASES CITED: MB v Protective Commissioner [2000] NSWSC 717Re R [2000] NSWSC 886The Protective Commissioner v "D" & Ors [2004] NSWCA 216

REPRESENTATION:
APPLICANT
In person
RESPONDENT
C Phang, solicitor

ORDERS: 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:

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

Guardianship Act

Protected Estates Act

(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:

(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…

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.

Continue reading XO v Protective Commissioner

Details

AGLC: XO v Protective Commissioner [2006] NSWADT 322
Case: [2006] NSWADT 322
Decision Date: 10/11/2006

CaseChat Overview and Summary

The matter involved XO and the Protective Commissioner, with the dispute centering on the latter's decision to decline to enter a loan by way of a second mortgage with Rivwest Finance Pty Ltd on XO's behalf. The Federal Court was asked to review the decision and determine whether it should be set aside. The primary legal issue was whether the Protective Commissioner's decision was legally sound, taking into account the provisions of the Guardianship Act 1987 and the Administrative Decisions Tribunal Act 1997.

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

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:	XO v Protective Commissioner [2006] NSWADT 322
DIVISION:	General Division
PARTIES:	APPLICANT XO RESPONDENT Protective Commissioner
FILE NUMBER:	063265
HEARING DATES:	19/10/06, 03/11/06
SUBMISSIONS CLOSED:	11/03/2006
DATE OF DECISION:	11/10/2006
BEFORE:	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 1987
CASES CITED:	MB v Protective Commissioner [2000] NSWSC 717Re R [2000] NSWSC 886The Protective Commissioner v "D" & Ors [2004] NSWCA 216
REPRESENTATION:	APPLICANT In person RESPONDENT C Phang, solicitor
ORDERS:	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.