YS v Protective Commissioner

[2006] NSWADTAP 67

Appeal Panel - External

CITATION:	YS v Protective Commissioner and Ors [2006] NSWADTAP 67
PARTIES:	APPELLANT YS FIRST RESPONDENT Protective Commissioner SECOND RESPONDENT YT THIRD RESPONDENT Guardianship Tribunal
FILE NUMBER:	068014
HEARING DATES:	05/12/06
SUBMISSIONS CLOSED:	12/05/2006
EXTEMPORE DECISION DATE:	12/05/2006
DATE OF DECISION:	12/07/2006
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Financial management order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/31486
DATE OF DECISION UNDER APPEAL:	08/10/2006
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	1. The decision of the Guardianship Tribunal made on 10 August 2006 in relation to YT is affirmed 2. The appeal is dismissed.
REPRESENTATION:	APPELLANT In person FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT E Cho, Solicitor
ORDERS:	1. The decision of the Guardianship Tribunal made on 10 August 2006 in relation to YT is affirmed; 2. The appeal is dismissed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

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

1 YT is an elderly man who suffers from dementia and lives in a nursing home. YT’s daughter, YS, applied to the Guardianship Tribunal for a revocation of the financial management order that was in place in relation to her father. She had previously been her father’s attorney under a Power of Attorney he signed when he had capacity to do so. The making of the financial management order suspended the operation of the Power of Attorney. On 10 August 2006 the Guardianship Tribunal confirmed its decision to appoint the Protective Commissioner. YS has appealed to the Tribunal against that decision.

2 The Appeal Panel has jurisdiction to hear appeals against the Guardianship Tribunal’s decision: Guardianship Act 1987, s 67A(1)(g). An appeal may be made as of right on any question of law or by leave of the Appeal Panel on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1). YS purported to appeal on a question of law and on other grounds. In her Notice of Appeal, YS wrote “I hold my father’s Power of Attorney” as the reason for appealing on a question of law and for appealing on other grounds. YS did not file any other written material. This decision deals with the issue of whether YS has identified a question of law and, if not, whether leave should be granted for her to appeal against the Guardianship Tribunal’s decision on other grounds.

3 Despite being asked to identify a question of law, YS was unable to do so. I appreciate that it is not easy for unrepresented appellants to categorise their concerns as either questions of law or questions of fact. I urged YS to get some legal advice on that issue, but she did not do so, despite the fact that she was legally represented before the Guardianship Tribunal. She said that it was too expensive.

4 As YS did not identify any question of law, I must decide whether to give leave for her to appeal on other grounds. When I asked YS why she disagreed with the Guardianship Tribunal’s decision she said that her father would be upset if he realised that the Protective Commissioner was managing his affairs. She also said that she did not believe that the Guardianship Tribunal would have been able to put out of its mind the fact that a doctor had described her as having a personality disorder. YS also objected to the fact that the Guardianship Tribunal described her recollections as “unreliable”.

5 The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Guardianship Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K , Young J observed at [10] that ‘it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67’, but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

6 Having read the Guardianship Tribunal’s decision, this case does not raise any broad questions of administration or policy and I have no concerns about the way the Tribunal went about its fact finding process. In those circumstances I refuse leave for this appeal to be extended to the merits of the Guardianship Tribunal’s decision. The decision of the Guardianship Tribunal in relation to YT made on 10 August 2006 is affirmed and the appeal is dismissed.