QJ v Public Guardian & Ors [2005] NSWADTAP 45

QJ v Public Guardian & Ors [2005] NSWADTAP 45

Leave was granted because new evidence, namely the cheque dated 8 August 2003, differed markedly from the evidence recorded by the Guardianship Tribunal that the gift had been made well over two years earlier before QM deteriorated and entered the hostel. QM's state of mind at the time of the gift was highly relevant to the guardianship, financial management and powers of attorney issues, so the Tribunal's decisions were set aside and remitted for rehearing. The non-disclosure of the gift amount was not a breach of procedural fairness because the information was not adverse to QJ and exceptional circumstances justified confidentiality. The Tribunal's failure to refer expressly to QM's...

Jurisdiction
Australia
Judgment Date
08 September 2005
Procedural Posture
External Appeal From Guardianship Tribunal Decisions / Appeal Panel Decision on Questions of Law and Application for Leave to Appeal on Other Grounds
Outcome
Appeal allowed on the ground of new evidence; Guardianship Tribunal decisions set aside and matters remitted for rehearing.
Legal Topics
['guardianship Order' 'financial Management Order' 'review of Powers of Attorney' 'new Evidence on Appeal' 'non Disclosure of Evidence' 'protective Jurisdiction']
['administrative Law' 'guardianship and Financial Management' 'procedural Fairness'] ['guardianship Order' 'financial Management Order' 'review of Powers of Attorney' 'new Evidence on Appeal' 'non Disclosure of Evidence' 'protective Jurisdiction']

Case Brief

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Procedural Posture

External Appeal From Guardianship Tribunal Decisions / Appeal Panel Decision on Questions of Law and Application for Leave to Appeal on Other Grounds

Legal Issues

  1. 1 ['Whether new evidence about the timing of a gift from QM to her grandson justified leave to appeal and remittal.' 'Whether non-disclosure to the appellant of the amount of the gift breached procedural fairness or otherwise involved an error of law.' "Whether the Guardianship Tribunal failed to take into account QM's views as required by the Guardianship Act 1987."]

Ratio Decidendi

Leave was granted because new evidence, namely the cheque dated 8 August 2003, differed markedly from the evidence recorded by the Guardianship Tribunal that the gift had been made well over two years earlier before QM deteriorated and entered the hostel. QM's state of mind at the time of the gift was highly relevant to the guardianship, financial management and powers of attorney issues, so the Tribunal's decisions were set aside and remitted for rehearing. The non-disclosure of the gift amount was not a breach of procedural fairness because the information was not adverse to QJ and exceptional circumstances justified confidentiality. The Tribunal's failure to refer expressly to QM's...

Court Disposition

Appeal allowed on the ground of new evidence; Guardianship Tribunal decisions set aside and matters remitted for rehearing.

Orders

  • ["The Guardianship Tribunal's decision to dismiss the application for a guardianship order is set aside." "The Guardianship Tribunal's decision to dismiss the application for a financial management order is set aside." "The Guardianship Tribunal's decision not to conduct a review of the powers of attorney is set...