ZGW v ZGX [2018] NSWCATAP 297

ZGW v ZGX [2018] NSWCATAP 297

The Tribunal did not err by failing to consider the Subject Person's views, by refusing to admit late tendered material while allowing oral submissions about it, by allowing the Appellant's brother to remain, or by not using a resolution process. However, the Tribunal made an error of law by finding or assuming, without any evidence, that the Appellant borrowed $10,000 from the Subject Person to pay his credit card debt. That factual finding was material to the reasoning supporting the conclusion that there was a need for another person to manage the Subject Person's affairs. Time to appeal was extended and the appeal was allowed, with the matter remitted for reconsideration.

Jurisdiction
Australia
Judgment Date
12 December 2018
Procedural Posture
Internal Appeal Against a Guardianship Division Financial Management Order / Appeal Panel Decision
Outcome
Time to lodge the appeal extended; appeal allowed; orders made on 16 November 2017 set aside; matter remitted for reconsideration, with the setting aside not to take effect until re-determination.
Legal Topics
['financial Management Order' 'procedural Fairness' 'no Evidence Ground of Appeal' 'jurisdictional Fact' 'mandatory Considerations' 'resolution Process' 'extension of Time']
['administrative Law' 'guardianship' 'powers of Attorney' 'statutory Interpretation'] ['financial Management Order' 'procedural Fairness' 'no Evidence Ground of Appeal' 'jurisdictional Fact' 'mandatory Considerations' 'resolution Process' 'extension of Time']

Case Brief

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Procedural Posture

Internal Appeal Against a Guardianship Division Financial Management Order / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal was required to take into account, and failed to take into account, the views of the Subject Person when deciding to treat the review of the enduring power of attorney as an application for a financial management order and when making that order.' 'Whether the Tribunal denied the Appellant a reasonable opportunity to present his case by refusing to permit further material to be tendered on the hearing day.' 'Whether the Tribunal denied the Appellant a reasonable opportunity to present his case by permitting his brother to participate in the hearing.' 'Whether s 37 of the Civil and Administrative Tribunal Act 2013 (NSW) obliged the Tribunal to use or require a resolution process.' "Whether there was no evidence for the Tribunal's finding that the Appellant borrowed $10,000 from the Subject Person to repay his credit card debt." 'Whether time for lodging the appeal should be extended.' 'Whether the no-evidence error was material to the decision to make a financial management order.']

Ratio Decidendi

The Tribunal did not err by failing to consider the Subject Person's views, by refusing to admit late tendered material while allowing oral submissions about it, by allowing the Appellant's brother to remain, or by not using a resolution process. However, the Tribunal made an error of law by finding or assuming, without any evidence, that the Appellant borrowed $10,000 from the Subject Person to pay his credit card debt. That factual finding was material to the reasoning supporting the conclusion that there was a need for another person to manage the Subject Person's affairs. Time to appeal was extended and the appeal was allowed, with the matter remitted for reconsideration.

Court Disposition

Time to lodge the appeal extended; appeal allowed; orders made on 16 November 2017 set aside; matter remitted for reconsideration, with the setting aside not to take effect until re-determination.

Orders

  • ['The time for lodging the appeal is extended to 29 May 2018.' 'Appeal allowed.' 'The orders made by the Tribunal on 16 November 2017 are set aside.' 'The matter is remitted to be reconsidered by the Tribunal with further evidence if permitted by the Tribunal.' 'Order 3 does not come into effect until the Tribunal...