YJC v Public Guardian [2024] NSWCATAP 160

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YJC v Public Guardian [2024] NSWCATAP 160 Hearing dates: 16 May 2024 Date of orders: 16 August 2024 Decision date: 16 August 2024 Jurisdiction: Appeal Panel Before: Armstrong J, President A Britton, Deputy President J V Le Breton, General Member Decision: (1) The appeal is allowed in part. (2) The decision to make a financial management order in respect of the YGJ and to commit the management of YGJ's estate to the NSW Trustee and Guardian is affirmed. (3) The decision to dismiss, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) the proceedings to review the appellants' application seeking review of the purported revocation of their appointment as attorneys, is set aside. (4) The decision to dismiss, under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), the proceedings to review the appellants' application seeking review of YJE's appointment as enduring guardian on 18 November 2021, is set aside. (5) The appellants' application seeking review of the purported revocation of their appointment as attorneys (referred to in Order 3) is to be reconsidered by the Guardianship Division on the basis of the material that was before the Tribunal at the hearing on 19 October 2023. (6) The appellants' application seeking review of YJE's appointment as enduring guardian on 18 November 2021 (referred to in Order 4) is to be reconsidered by the Guardianship Division on the basis of the material that was before the Tribunal at the hearing on 19 October 2023. The parties may provide further evidence relevant to that application, which relates to the period from 19 October 2023. Catchwords: DOCTRINE OF PRECEDENT — application to NCAT — whether "last resort principle" forms part of the ratio decidendi in Holt v Protective Commissioner (1993) 31 NSWLR 227 and Mv M [2013] NSWSC 1495 — whether "last resort principle" constituted "seriously considered" dicta in Holt v Protective Commissioner and M v M STATUTORY INTERPRETATION — whether s 25M of the Guardianship Act 1987 (NSW) creates a presumption that where available a "suitable person" must be appointed to manage the estate of a protected person over the NSW Trustee and Guardian APPEALS –– appeal from summary dismissal of decision made under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) –– "lacking in substance" –– whether Tribunal applied the correct test ADMINISTRATIVE LAW — legal unreasonableness — whether decision to commit the management of the protected person's estate to the NSW Trustee and Guardian was "manifestly unreasonable", lacked an evident and intelligible justification REASONS FOR DECISION — whether reasons for decision were adequate Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 55, 55(1)(b), 62(3), 80(2)(b); Sch 6, cl 11; Div 4 of Pt 7 Guardianship (Amendment) Act 1993 (NSW), Sch 2 Guardianship Act 1987 (NSW), ss 4, 6, 6J, 6K, 25D, 25E, 25E(1)-(2), 25G, 25M, 25M(1), 25U(4)(b); Pt 2, Div 1 of Pt 3A Guardianship Amendment Act 1997 (NSW), Sch 1 Interpretation Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW), s 4; Sch 1, cl 3 NSW Trustee and Guardian Bill 2009 (NSW), Sch 2.27 Powers of Attorney Act 2003 (NSW), ss 36(1), 37, 37(1) Protected Estates (Disability Services and Guardianship) Amendment Act 1987 (NSW), Sch 1 Protected Estates Act 1983 (NSW), s 22 Cases Cited: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245 AC v R (2023) 111 NSWLR 514; [2023] NSWCCA 133 Bisley Investment Corporation v Australian Broadcasting Tribunal (1982) 40 ALR 233; [1982] FCA 58 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1; [1993] FCA 456 Davis v NSW Minister for Health [2023] NSWCATAP 211 Ex parte Applicant S20/2002; Appellant S106/2002 v Minister for Immigration and Multicultural Affairs (2003) 198 ALR 59; [2003] HCA 30 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; [2007] HCA 22 Gautam v Health Care Complaints Commission [2021] NSWCA 85 Gett v Tabet (2009) 254 ALR 504; [2009] NSWCA 76 Henadeck Pty Ltd v Independent Liquor and Gaming Authority; Niraula v Independent Liquor and Gaming Authority [2020] NSWCATAP 200 Holt v Protective Commissioner (1993) 31 NSWLR 227 M v M [2013] NSWSC 1495 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Darnia-Wilson (2022) 289 FCR 72; [2022] FCAFC 28 New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 Commissioner of Taxation v Salenger (1988) 81 ALR 25; [1988] FCA 176 Re X [2016] NSWSC 275 Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 Rinehart v Rinehart [2020] NSWSC 68 Husband v Public Guardian [2016] NSWSC 1720 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; [2004] HCA 16 WorkCover Corporation v Jakas (2003) 86 SASR 20; [2003] SASC 155 ZBC v ZBD [2016] NSWCATAP 264 Texts Cited: Herzfeld, Prince, Interpretation (2020) at [33.320], [35.0], [35.50] Category: Principal judgment Parties: YJC (First Appellant) YJD (Second Appellant) Public Guardian (First Respondent) YJE (Second Respondent) YJF (Third Respondent) NSW Trustee and Guardian (Fourth Respondent) YJG (Fifth Respondent) Representation: Appellants (Self-Represented) Public Guardian (no appearance) YJE (Self-Represented) YJF (Self-Represented) NSW Trustee and Guardian (no appearance) YJG (Self-Represented) File Number(s): 2024/00044624 Publication restriction: Pursuant to s 65 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of any of the parties or other people referred to in this decision including the publication of any information, picture or other material that identifies them, or is likely to lead to their identification, is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Citation: N/A Date of Decision: 19 October 2023 Before: J A McAteer, Senior Member (Legal) J McAuliffe, Senior Member (Professional) K Clark, General Member (Community) File Number(s): NCAT 2023/00203653