CU v Protective Commissioner (No. 2) (GD) [2009] NSWADTAP 26

CU v Protective Commissioner (No. 2) (GD) [2009] NSWADTAP 26

The Appeal Panel did not finally decide whether s 28A gave the Tribunal jurisdiction to review refusals of ex gratia compensation. Assuming the appeal should be extended to the merits, CU's challenges failed: the Tribunal had adequately rejected any reasonable basis for finding misconduct by the Office of the Protective Commissioner concerning the alleged 1981 loan, and had adequately dealt with the paucity of documentary evidence and likely futility of recovery action against B's estate. The appeal was therefore dismissed.

Jurisdiction
Australia
Judgment Date
28 April 2009
Procedural Posture
Appeal From Tribunal Decision Affirming Decisions of the Protective Commissioner / Appeal Panel Decision
Outcome
Appeal dismissed
Legal Topics
['review of Protective Commissioner Decisions' 'ex Gratia Compensation' 'financial Management Order' 'protected Person' 'appeal to Merits']
['administrative Law' 'guardianship and Protected Estates'] ['review of Protective Commissioner Decisions' 'ex Gratia Compensation' 'financial Management Order' 'protected Person' 'appeal to Merits']

Case Brief

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Procedural Posture

Appeal From Tribunal Decision Affirming Decisions of the Protective Commissioner / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal had jurisdiction under s 28A of the Protected Estates Act 1983 to review refusals of ex gratia compensation for alleged estate management failures by the Protective Commissioner.' "Whether the Protective Commissioner's refusal to make an ex gratia payment concerning the alleged failure to secure repayment of a 1981 loan should be disturbed on the merits." "Whether the Protective Commissioner's refusal to take or compensate for recovery action against B's estate for alleged misappropriation of A's funds should be disturbed on the merits."]

Ratio Decidendi

The Appeal Panel did not finally decide whether s 28A gave the Tribunal jurisdiction to review refusals of ex gratia compensation. Assuming the appeal should be extended to the merits, CU's challenges failed: the Tribunal had adequately rejected any reasonable basis for finding misconduct by the Office of the Protective Commissioner concerning the alleged 1981 loan, and had adequately dealt with the paucity of documentary evidence and likely futility of recovery action against B's estate. The appeal was therefore dismissed.

Court Disposition

Appeal dismissed

Orders

  • ['Appeal dismissed']