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[2012] NSWADTAP 17
appellant. (1) The Guardianship Tribunal's orders made on 13 July 2011 are set aside. (2) This decision comes in to effect 8 weeks after the date of the decision.
The Appeal Panel decided that the Guardianship Tribunal had used the wrong legal pathway when it removed a father as financial manager for his disabled adult daughter and installed the NSW Trustee instead. Although the Tribunal thought it could make this change while reviewing the overall management order it had made two years earlier, the legislation treats deciding that someone needs a manager and actually choosing who that manager will be as two different steps with different review rules. The scheduled review notice only mentioned the management order, no one had asked for a review of the appointment, and the Tribunal never clearly said it was starting its own-motion review of the appointment. Because the Tribunal never properly started the right kind of review, it had no power to make the change. The father's appeal succeeded, the 2011 orders were cancelled, and the original appointment of the father is restored after an eight-week delay to avoid sudden disruption to the daughter's affairs.
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AFO is a 26-year-old woman with a severe intellectual disability who lives with her father, AFM. Her parents are divorced. On 21 July 2009 the Guardianship Tribunal made two distinct orders: first, a financial management order under s 25E of the Guardianship Act 1987 declaring that AFO's estate be subject to management under the NSW Trustee and Guardian Act 2009; second, an appointment order under s 25M appointing AFM as the manager of that estate, subject to conditions set by the NSW Trustee. The Tribunal also ordered that "this order" be reviewed within two years. The precise scope of that review order was ambiguous on its face because two separate orders had been made.
When the review occurred on 13 July 2011 the Guardianship Tribunal expressed its decision as a variation of the 2009 financial management order. It replaced AFM with the NSW Trustee and Guardian as manager and removed the requirement for any further review. The orders were framed as varying the original financial management order while leaving the remainder unchanged. AFM appealed to the Administrative Decisions Tribunal Appeal Panel under s 67A(1)(g) and (h) of the Guardianship Act 1987 and s 118B of the Administrative Decisions Tribunal Act 1997, both on questions of law and seeking leave on other grounds.
After the hearing the Appeal Panel invited further written submissions on jurisdiction. The central question became whether the Guardianship Tribunal had possessed any power to review the appointment of AFM as manager when it conducted the 2011 review. The Crown Solicitor was appointed to assist the Panel. The NSW Trustee and Guardian did not appear. The Guardianship Tribunal participated through the Crown Solicitor's Office to explain its practices. The Panel ultimately concluded that the 13 July 2011 orders had been made without power because the Tribunal had never properly engaged the distinct statutory pathway for reviewing a manager's appointment. The Panel set the 2011 orders aside but stayed the effect of its decision for eight weeks to permit an orderly handover and to protect AFO's interests. The 2009 orders therefore remain on foot, subject to any future proper review of the appointment under s 25S.
The Appeal Panel began by noting the statutory structure described in EB v Guardianship Tribunal [2011] NSWSC 767 at [143]: the Act requires two distinct steps—first making a financial management order under s 25E, then appointing a manager (or committing management to the NSW Trustee) under s 25M. Reviews of each type of order are also distinct. Division 2 of Part 3A governs review of financial management orders; Division 3 governs review of the appointment of a manager.
Section 25N empowers the Tribunal to order that a financial management order be reviewed within a specified time and permits that requirement to be included in the original order or in a subsequent order. On such a review the Tribunal must vary, revoke or confirm the financial management order (s 25P). By contrast, s 25S empowers the Tribunal to review the appointment of a manager either on its own motion or on request by the NSW Trustee or a person with a genuine concern for the protected person's welfare. Importantly, s 25S contains no equivalent to s 25N(2) allowing a deferred review to be ordered in advance.
The Panel was satisfied that when the Tribunal made the 2009 review order it had assumed that a review of the financial management order would automatically encompass review of the appointment. That assumption was reflected in the way the 2011 orders were expressed—as a variation of the financial management order rather than as a revocation of the appointment under the correct provision. The Panel held at [18] that "the power to vary a financial management order does not include a power to review an appointment order and confirm or revoke the appointment." The Tribunal therefore could not achieve by varying the financial management order what it could only achieve by a separate review under s 25S.
The Panel next examined whether the own-motion power under s 25S(1)(a) could validate the decision even though the Tribunal had identified the wrong source of power. It cited the High Court in Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3 at 37 [34] for the principle that a mistake as to the source of power does not necessarily invalidate a decision if it can be supported by another head of power whose conditions have been satisfied. However, the Panel distinguished that authority at [29]-[31]. In the Education Act case the alternative power existed as a matter of fact and required no further act by the decision-maker. By contrast, the own-motion power under s 25S must be exercised; it is not a standing authority that can be relied upon retrospectively. The review commences only when notice is given under s 25S(3). The 23 June 2011 notice referred solely to a "Review of Reviewable Financial Management Order" and gave no indication that the Tribunal was reviewing the appointment on its own motion. The Tribunal had therefore never exercised the only power that could have authorised the 2011 decision. The orders were made without power and had to be set aside.
The eight-week delay in the disposition was justified on practical and protective grounds. The NSW Trustee had been managing the estate since July 2011; immediate restoration to AFM would be disruptive. The Panel noted that the Guardianship Tribunal or a person with standing could still initiate a proper s 25S review in the future.
Before this decision the Guardianship Tribunal appears to have treated review of a financial management order and review of the identity of the manager as aspects of a single process. The 2009 orders and the 2011 variation both used language that blurred the statutory distinction drawn in Part 3A. The decision in EB v Guardianship Tribunal [2011] NSWSC 767 had already emphasised the two-step structure, yet the Tribunal's practice had not fully adjusted.
After the decision the law is clearer. A financial management order and an appointment order are separate instruments. A review order under s 25N(2) can validly schedule a future review only of the financial management order. Any review of the manager's identity must proceed under s 25S, either on application or by the Tribunal unambiguously exercising its own-motion power at the time the review is required. The notice of hearing must reflect that the appointment is under review. The principle that an administrative decision can be supported by an alternative head of power remains available, but only where all conditions precedent to that alternative power have in fact been satisfied. A Tribunal cannot rely on an unexercised own-motion power to cure a jurisdictional defect.
The decision reinforces that protective jurisdiction, while beneficial in purpose, remains strictly statutory. Tribunals cannot expand their powers by assuming that one review pathway subsumes another. The eight-week stay mechanism under s 118C(3) of the Administrative Decisions Tribunal Act 1997 provides a practical tool to minimise harm to the protected person when jurisdictional errors are corrected on appeal.
At [9] the Panel quoted Hallen AsJ from EB v Guardianship Tribunal to explain the two-step statutory structure: "the first, pursuant to s 25E of the Act, the Tribunal may order that the estate of a person be subject to management under the Act (the making of a financial management order), and, if that order is made, then, pursuant to s 25M(1), the second step is the appointment of a suitable person, or the NSW Trustee, to manage the estate." In plain English: you cannot appoint a manager until you have first decided the estate needs managing; the two decisions are not the same legal act.
Paragraph [18] contains the core ratio: "A financial management order and an appointment order are separate orders and review of those orders is initiated by separate processes. The power to vary a financial management order does not include a power to review an appointment order and confirm or revoke the appointment." Translation: changing who looks after the money is a different legal job from deciding that the money needs looking after. The rules for each job are written in different parts of the Act and cannot be mixed.
At [24]-[25] the Panel addressed the own-motion power: "While there is an express provision that the requirement for a review of a financial management order may be contained in the financial management order itself (s 25N(2)), there is no such provision in relation to an appointment order... It is not consistent with an own motion power that the occasion for its exercise be postponed for a specified period." Translation: the Act lets the Tribunal say in advance "we will look at the management order again in two years," but it does not let the Tribunal do the same for the choice of manager. An own-motion review must happen when the Tribunal actually decides it is needed, not when a calendar date arrives.
Paragraph [32] disposes of the appeal: "When the Guardianship Tribunal purported to make a review order in relation to the appointment decision on 21 July 2009, it had no power to do so. It did not exercise its own motion power at that time, or at any time after that date. It follows that the Guardianship Tribunal's order made on 13 July 2011 revoking the appointment of AFM was made without power and should be set aside." Translation: because the Tribunal never started the right legal process, everything it did in 2011 about changing the manager is legally ineffective. The father remains the appointed manager unless and until a proper review occurs.
This precedent is triggered whenever the Guardianship Tribunal, on a review of a financial management order scheduled under s 25N, purports to change the identity of the appointed manager and expresses that change as a variation of the financial management order. It applies where the Tribunal has included a review order in the original financial management decision and later treats that review as encompassing the appointment. It is engaged when the hearing notice refers only to review of a "reviewable financial management order" and contains no reference to review of the appointment. The precedent catches any case in which the Tribunal has not either received a request from the NSW Trustee or a person with standing under s 25S(1)(b), or has not itself unambiguously communicated that it is exercising its own-motion power at the time the review is conducted. It is particularly relevant where the Tribunal has assumed that the power to vary under s 25P includes power to substitute one manager for another. The eight-week stay aspect will be relevant whenever immediate restoration of the original manager would cause practical disruption to the protected person's affairs. The decision does not apply where the Tribunal has properly commenced a s 25S review on its own motion and given appropriate notice, nor where a valid application for review of the appointment has been made.
The judgment itself demonstrates how the Appeal Panel treated the High Court decision in Australian Education Union v Department of Education and Children's Services. At [20] it accepted the principle that a mistake as to source of power does not invalidate a decision if a valid alternative source exists and all its conditions are met. However, at [29]-[31] the Panel distinguished the High Court case on the basis that the alternative power in the Education Act was a standing authority requiring no further act, whereas the own-motion power under s 25S requires positive exercise and communication to the parties. The Panel therefore limited the High Court principle to situations in which the alternative power is self-executing.
The judgment also relies on the earlier Supreme Court analysis in EB v Guardianship Tribunal [2011] NSWSC 767 to establish the two-step statutory structure. The Panel treated that decision as correctly stating the law and used it to demonstrate that the Tribunal's 2009 and 2011 orders had conflated steps that the statute keeps separate. Because the present decision is an Appeal Panel determination on an external appeal, its analysis of the Guardianship Act provisions binds lower tribunals exercising the same protective jurisdiction unless and until a court of superior jurisdiction rules otherwise. The strict reading of s 25S and the insistence that own-motion power must be actively engaged have narrowed the circumstances in which the Tribunal can lawfully alter a manager's identity during a financial management review.
The judgment leaves open whether the Guardianship Tribunal could validly exercise its own-motion power under s 25S(1)(a) at the commencement of a hearing if it were to amend the hearing notice or expressly inform the parties at the outset that it was also reviewing the appointment. The Panel noted at [27] that the existing notice did not contain such notice but observed that failure to serve notice does not vitiate a decision under s 25S(4). The precise content required to communicate that an own-motion review is occurring therefore remains unsettled.
It is also unclear whether a review order made under s 25N that expressly refers to both the financial management order and the appointment order would be effective to engage the s 25S power. The Panel at [32] concluded that the 2009 review order could only relate to the financial management order, but it did not decide whether clearer language could overcome the absence of an equivalent to s 25N(2) in s 25S.
The interaction between the Tribunal's protective jurisdiction and the eight-week stay power under s 118C(3) of the Administrative Decisions Tribunal Act 1997 is only lightly touched upon. The Panel considered the stay necessary to protect AFO's interests, yet it did not articulate a general test for when such a stay should be granted in jurisdictional error cases. Future appeals may test the breadth of that discretion.
Finally, the decision does not address the position if the NSW Trustee itself had requested a review of the appointment under s 25S(1)(b)(i). Whether such a request could be combined with a scheduled s 25N review without separate notice remains undecided. These open questions indicate that while the jurisdictional boundary between the two review pathways is now sharply drawn, the precise procedural steps required to engage the s 25S power in mixed hearings will require further clarification.
Introduction 1AFO is a 26-year-old woman with a severe intellectual disability who lives with her father, AFM. Her parents are divorced. On 21 July 2009 the Guardianship Tribunal made a financial management order in relation to AFO and appointed her father, AFM, as the manager of her estate. When reviewing those orders two years later, the Guardianship Tribunal "varied" the order by replacing AFM with the NSW Trustee and Guardian. The following orders, which are the subject of this appeal, were made on 13 July 2011: (1)The financial management order made on 21 July 2009 and as confirmed on 19 July 2010 in relation to the estate of [AFO] is varied as follows: By replacing AFM, who was previously appointed as manager of the estate of [AFO] with the NSW Trustee. (2)In all other respects, the financial management order made on 21 July 2009 and as confirmed on 19 July 2010 in relation to (AFO) remains unchanged, except for the requirement to review the order which no longer applies. 2AFM has appealed to this Tribunal against the Guardianship Tribunal's decision on questions of law: Administrative Decisions Tribunal Act 1997 (ADT Act) s 118B(1)(a). AFM has also sought leave to appeal on other grounds: ADT Act, s 118B(1)(b).
Jurisdiction 3The Guardianship Tribunal has power to review a financial management order it has previously made pursuant to section 25N of the Guardianship Act 1987. On review, the Guardianship Tribunal must vary, revoke or confirm the order: Guardianship Act, s 25P. An appeal may be made to this Tribunal against such a decision: Guardianship Act, s 67A(1)(g). This Tribunal may also hear an appeal against a decision by the Guardianship Tribunal under s 25U to review the appointment of a manager: Guardianship Act, s 67A(1)(h). Such an appeal is also an external appeal.
4AFO was unable to participate in the proceedings either before the Guardianship Tribunal or this Tribunal. The appellant, AFM, attended in person and was represented by counsel. His former wife was not a party to the review of the financial management order before the Guardianship Tribunal and therefore is not a party to the appeal. 5The Tribunal appointed the Crown Solicitor to assist the Appeal Panel: ADT Act, s 67(2C) and Administrative Decisions Tribunal Rules 1998, r 41A(2). 6The Guardianship Tribunal is entitled to be a party to the proceedings: ADT Act, s 67(2B). Ms Sprouster, appearing for the Guardianship Tribunal, indicated that it wished to continue to have an active role in the appeal in order to provide comments on its practices and procedures. The respondent to the appeal, the NSW Trustee and Guardian, did not wish to present a case or make submissions.
Guardianship Tribunal's power to review the appointment of the manager
Introduction 7After the hearing had concluded we asked the parties to provide further written submissions on the issue of whether the Guardianship Tribunal had exceeded its jurisdiction in relation to the orders it made on 13 July 2011. In particular, we invited submissions on whether the Guardianship Tribunal had power to review the appointment of AFM as the financial manager.
Background 8The Guardianship Tribunal first made a financial management order in relation to AFO on 21 July 2009. The Guardianship Tribunal appointed her father, AFM, to be the financial manager. The orders were expressed in the following terms: (1)The estate of [AFO] be subject to management under the provisions of the NSW Trustee and Guardian Act 2009; and (2)the manager of [AFO's] estate be [AFM] (address deleted), subject to such conditions, including the giving of security, as the NSW Trustee considers appropriate. The Tribunal further orders that this order be reviewed within 2 years. 9We will refer to Order 1 as the financial management order and to order 2 as the appointment order. Those orders were made under s 25E and s 25M of the Guardianship Act respectively. Part 3A of the Guardianship Act distinguishes between a financial management order made under s 25E (ordering that the estate of the person be subject to management under the NSW Trustee and Guardian Act 2009) and an appointment order made under s 25M appointing a suitable person as manager of the estate, or committing the management of that estate to the NSW Trustee. As Hallen AsJ pointed out in EB v Guardianship Tribunal [2011] NSWSC 767 at [143]: It can be seen that the structure of the Act requires taking two distinct steps in relation to financial management - the first, pursuant to s 25E of the Act, the Tribunal may order that the estate of a person be subject to management under the Act (the making of a financial management order), and, if that order is made, then, pursuant to s 25M(1), the second step is the appointment of a suitable person, or the NSW Trustee, to manage the estate. 10The processes for reviewing a financial management order and an appointment order are also distinct. A review of a financial management order is conducted under Division 2 of Part 3A, while a review of the appointment of a manager is conducted under Division 3. 11As part of its decision on 21 July 2009, the Guardianship Tribunal also ordered that ". . . this order be reviewed within 2 years." We will refer to this order as the "review order." The review order is expressed as applying to "this order". As two orders were made, it is unclear on the face of the orders whether the review order was intended to apply to the financial management order, the appointment order, or both.
Issues 12The issues that arise in relation to the Guardianship Tribunal's jurisdiction to review the appointment order are: (3)What power does the Guardianship Tribunal have to review an appointment order? (4)Was the Guardianship Tribunal exercising that power (or was that power available as a source of power to be exercised) at the time it made the review order or at any other relevant time?
13The Guardianship Tribunal has power to order that a financial management order be reviewed within a specified time: s25N. The requirement for review may be included as part of the financial management order or be made in a subsequent order: (1) The Tribunal may order that a financial management order be reviewed within a specified time. (2) The requirement for a review may be contained in the financial management order or in a subsequent order. (3) The Tribunal must begin any required review within the time specified in the relevant order. (4) The Tribunal: (a) may, at any time on its own motion, and (b) must, on an application under section 25R for revocation or variation of the order, review a financial management order. (5) If a financial management order would cease to have effect before the completion of such a review, the order is taken to be extended until the completion of the review. (6) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (7) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. 14The Guardianship Tribunal's power to review an appointment order is contained in s 25S which provides that: (1) The Tribunal: (a) may, on its own motion, and (b) must, at the request of: (i) the NSW Trustee, or (ii) any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the protected person, review its appointment of the manager of the protected person's estate. (2) Subsection (1) applies even if the person appointed as manager is the NSW Trustee. (3) Before carrying out the review, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will carry out the review to be served on each party to the proceedings. The review is taken to have commenced on the issue of such a notice. (4) A failure to serve notice in accordance with this section does not vitiate the decision of the Tribunal on the review. 15Unlike s 25N, there is no equivalent provision in s 25S enabling an appointment order made pursuant to s 25M to be reviewed within a specified time. Nor is there any equivalent provision in s 25S for a review order to be confirmed in the appointment order itself, or any subsequent order. Neither the NSW Trustee, pursuant to s 25S(1)(b)(ii), nor another person with standing (pursuant to s 25S(1)(b)(ii)), requested a review of the appointment order, nor did the Guardianship Tribunal express the review order as having been made on its own motion. 16We are satisfied that when making the review order on 21 July 2009 the Guardianship Tribunal assumed that it had power to review the appointment order as part of a review of the financial management order. That conclusion is supported by the way in which the Guardianship Tribunal expressed the review order and the way it characterised that order and subsequent orders. For example, when the Guardianship Tribunal reviewed the order on 13 July 2011 it expressed its order to replace AFM with the NSW Trustee as a variation of the financial management order rather than as a revocation of the appointment order under s 25P. 17The power to vary a financial management order on review is contained in s 25P: 25P Action on review (1) On reviewing a financial management order under section 25N, the Tribunal must vary, revoke or confirm the order. (2) The Tribunal may revoke a financial management order only if: (a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or (b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs). 18A financial management order and an appointment order are separate orders and review of those orders is initiated by separate processes. The power to vary a financial management order does not include a power to review an appointment order and confirm or revoke the appointment. The Guardianship Tribunal has power to vary a financial management order by, for example, including or excluding part of the estate from the order: s 25E. It does not have power to vary a financial management order by replacing one manager with another. 19The action the Guardianship Tribunal took following the review was to vary the financial management order as permitted by s 25P(1). The Tribunal purported to vary the order by revoking the appointment of AFM as manager of the estate and committing the management of the estate to the NSW Trustee. It is apparent from the way in which the order was expressed that the Guardianship Tribunal mistakenly considered that the review of the financial management order included a power to vary the appointment order. 20We accept the submission from the Crown Solicitor's Office that this conclusion does not necessarily mean that the Guardianship Tribunal's decision to revoke AFM's appointment was invalid. As long as a valid source of power existed at the time, it does not matter if the decision maker identified the wrong source of power. In Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3 the High Court held, at 37 [34] that: A mistake by an administrative decision-maker as to the source of his or her power to make a decision does not necessarily invalidate the decision if it is able to be supported by another source of power. Whether it can be supported by the other source of power will depend upon whether that power is subject to requirements which the decision-maker has failed to meet because of his or her belief as to the source of the power or for some other reason. As Heydon J said in Eastman v DPP (ACT): If the maker of an administrative decision purports to act under one head of power which does not exist, but there is another head of power available and all conditions antecedent to its valid exercise have been satisfied, the decision is valid despite purported reliance on the unavailable head of power. (footnote omitted) 21Although the Guardianship Tribunal is making judicial or quasi-judicial, rather than administrative, decisions the same principle applies. As long as all conditions antecedent to the valid exercise of the power have been satisfied, and an alternative source of power exists, the decision will be valid. 22The Guardianship Tribunal did not have an application from the NSW Trustee or a person with standing for a review of the appointment order on 21 July 2009, or at any other relevant time. If it had power to order a review of the appointment order the only possible source of that power was to initiate an own motion review under s 25S(1)(a). 23The phrase "on its own motion" or variations of that phrase, have been interpreted by the Court of Appeal in other statutory contexts: The phrase "of his (or its) own motion" has long been known to the law. It means that the body or person who is empowered to do something in this way acts without a formal application to or before it or him that the act be done. Varley v Attorney General in and for the State of New South Wales (1987) 8 NSWLR 30 per Hope JA, Samuels JA agreeing at 46. 24The Crown Solicitor's Office submitted that it may be assumed that the power of the Guardianship Tribunal to review the appointment of a manager on its own motion would not support the order it made on 21 July 2009 that such a review hearing be held within two years. We agree with that proposition. While there is an express provision that the requirement for a review of a financial management order may be contained in the financial management order itself (s 25N(2)), there is no such provision in relation to an appointment order. 25If the source of the Guardianship Tribunal's power to review the appointment order is the "own motion" power, the review is taken to have commenced when the Notice of Hearing is issued and must be carried out during the period leading up to the hearing and at the hearing itself: s 25S(3). It is not consistent with an own motion power that the occasion for its exercise be postponed for a specified period. If there is a need for an appointment order to be reviewed, that need must exist at the time the own motion power is exercised. 26The Guardianship Tribunal did not exercise its own motion power at any later date, for example, when the Notice of Hearing was issued or at the hearing itself. 27A Notice of Hearing was sent to the parties on 23 June 2011. That Notice identified the matters to be considered at the hearing as "Review of Reviewable Financial Management Order". The following text was included in the Notice of Hearing: The Guardianship Tribunal can make orders for a person who has an incapacity to make his or her own lifestyle and/or financial decisions. At the end of this hearing the Tribunal may make a legal order concerning [AFO]. 28The Notice of Hearing does not contain notice that a review of the decision to appoint AFM as the manager of his daughter's estate was to be carried out on 13 July 2011. That fact, by itself, does not vitiate the decision, but it satisfies us that the Guardianship Tribunal was not exercising its own motion power at that time. Similarly, despite a submission to the contrary by the Crown Solicitor's Office, we do not accept that the Guardianship Tribunal's was exercising, or purporting to exercise, its motion power at the 13 July 2011 hearing. 29The legal framework in this case is not comparable to that in Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27; [2012] HCA 3. In that case the High Court concluded that despite the fact that the Minister wrongly relied on s 9(4) of the Education Act 1972 (SA) to appoint temporary contract teachers, the fact that an alternative provision, s 15, provided a valid source of power to appoint those teachers meant that the appointments were valid. The alternative source of power in s 15 provided that: Subject to this Act, the Minister may appoint such teachers to be officers of the teaching service as he thinks fit. An officer may be so appointed on a permanent or temporary basis. ... 30As a valid source of power to appoint temporary contract teachers existed in s 15, and there was nothing the Minister needed to do in order to rely on that power, the appointments were valid. 31The situation in these proceedings is different. The Guardianship Tribunal remained under a misapprehension from the date it made the review order until the date of the hearing on 13 July 2011 that a review of the appointment order could be carried out as part of a review of the financial management order. It assumed that the source of power to do so was s 25N. The only alternative source of power which could have made the decision valid, was the own motion power. However, unlike s 15 of the Education Act 1972 (SA), that power needed to be exercised in order for it to be relied on. It is not a source of power that existed as a matter of fact. It could not be triggered until the Tribunal communicated to the relevant parties that it was exercising its own motion power. At that point, the review would be taken to have commenced: s 25S(3). 32When the Guardianship Tribunal purported to make a review order in relation to the appointment decision on 21 July 2009, it had no power to do so. It did not exercise its own motion power at that time, or at any time after that date. It follows that the Guardianship Tribunal's order made on 13 July 2011 revoking the appointment of AFM was made without power and should be set aside. The effect of this decision is that the decision of 21 July 2009, which is not the subject of this appeal, stands. We note that, given our conclusion, it is our view that the review order made on 21 July 2009 can only relate to the financial management order and not to the appointment order. This conclusion makes it unnecessary to consider any of the grounds of appeal raised by AFM. 33A decision of the Appeal Panel in relation to an external appeal takes effect on the date on which it is given or such later date as may be specified in the decision: ADT Act, s 118C(3). It is not practicable, nor in AFO's best interests, for the earlier orders of the Guardianship Tribunal to take effect immediately. The NSW Trustee has been managing AFO's estate since July 2011. The Guardianship Tribunal may decide to exercise its own motion power to review the appointment order it made on 21 July 2009. Alternatively, another person with standing may wish to make an application for such a review. If neither of those events occurs, some time will nevertheless be needed for the NSW Trustee to hand over the management of AFO's estate to AFM. In all the circumstances, we consider that this decision should not take effect until 8 weeks from the date of this decision.
Order (1)The Guardianship Tribunal's orders made on 13 July 2011 are set aside. (2)This decision comes in to effect 8 weeks after the date of the decision.
Amendments 05 June 2012 - typographical error in hearing date Amended paragraphs: Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 June 2012
AFM
NSW Trustee and Guardian
(1) The Guardianship Tribunal's orders made on 13 July 2011 are set aside. (2) This decision comes in to effect 8 weeks after the date of the decision.