ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZCA v NSW Trustee and Guardian [2016] NSWCATAP 192 Hearing dates: 30 June 2016 and 8 July 2016 Date of orders: 26 August 2016 Decision date: 26 August 2016 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President A Boxall, Senior Member B McPhee, Senior Member Decision: 1. The appeal from the decision to make a guardianship order in respect of ZCC for 12 months is allowed. 2. The decision in (1) above is set aside. 3. The application for a guardianship order is to be reconsidered by the Tribunal with further evidence. 4. The appeal from the decision that the estate of ZCC be subject to management under the NSW Trustee and Guardian Act 2009 is dismissed. 5. Leave is refused for the appellant to appeal on grounds other than a question of law. Catchwords: APPEAL – guardianship and financial management – mandatory considerations when deciding whether to make a guardianship order – views of the person -procedural fairness – reasonable opportunity to respond to evidence – no opportunity to cross examine witnesses – no offer of adjournment – admission of fresh and further evidence on appeal Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) s 38, s 45, s 65, s 80 Guardianship Act 1987 (NSW) ss4, 14 and 17 Mental Health Act 2007 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Building Professionals Board v Hans (GD) [2008] NSWADTAP 13 CKG v Public Guardian [2014] NSWCATAP 32 Commissioner of Police for New South Wales v Industrial Relations Commission of New South Wales & Raymond Sewell [2009] NSWCA 198 Gianoutsos v Glykis (2006) NSWCCA 137 IF v IG [2004] NSWADTAP 3 Italiano v Carbone and Ors [2005] NSWCA 177 Kioa v West [1985] HCA 81 Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 1113; (2000) 103 FCR 539 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Re Toohey and Another; Ex parte Meneling Station Pty Ltd \ (1982) 44 ALR 62 Rowe v Australian Steam Navigation Co Ltd [1909] HCA 25; (1909) 9 CLR 1 Category: Principal judgment Parties: ZCA (Appellant) NSW Trustee and Guardian (1st Respondent) The Public Guardian (2nd Respondent) ZCB (3rd Respondent) ZCC (4th Respondent) Representation: Counsel M Neville (3rd Respondent)