A v A

Case [2015] NSWSC 1778 27 November 2015

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Supreme Court

New South Wales

Medium Neutral Citation: A v A [2015] NSWSC 1778
Hearing dates: 16 November 2015
Date of orders: 27 November 2015
Decision date: 27 November 2015
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Order that an Application to revoke a protected estate management order and a tutorship order be dismissed.
(2) Order that no orders as to costs of compensation proceedings (in which the NSW Trustee acts as tutor for the applicant, an incapable person) be enforced against the NSW Trustee without the leave of this Court.
Catchwords:
PROTECTIVE JURISDICTION – Financial management order and tutorship order – Litigant in person – Incapable of managing affairs – Application for the Applicant, revocation of orders – Application dismissed

MENTAL HEALTH – Guardians, committees, administrators, managers and receivers - Appointment – Management of estate– Tutor in common law compensation proceedings – Meaning of incapacity for self-management
PRACTICE – NSW Trustee and Guardian Act – Protected estate manager – Tutor in common law compensation proceedings- Litigant in person – Incapable of managing affairs - Appointment of NSW Trustee as manager and tutor
Legislation Cited: Australian Courts Act 1828 (Imp)
Civil Procedure Act 2005 NSW
Civil Procedure Act 2005 NSW, section 56
Guardianship Act 1987 NSW
New South Wales Act 1823
NSW Trustee and Guardian Act 2009 NSW
Uniform Civil Procedure Rules 2005 NSW (UCPR)
Cases Cited: Ability One Financial Management Pty Limited and Anor v JB by his Tutor AB [2014] NSWSC 245 at [30]-[32], [48-[63]
Bobolas v Waverley Council [2012] NSWCA 126 at [60]-[62]
CAC v Secretary, Department of Family and Community Services (No. 2) [2015] NSWSC 344 at [15]-[16]
CCR v PS (No. 2) (1986) 6 NSWLR 622 at 640
CJ v AKJ [2015] NSWSC 498 at [22]-[43]
David by her tutor the Protective Commissioner v David (1993) 30 NSWLR 417 at 436E - 437C
Gibbons v Wright (1954) 91 CLR 423 at 434-438
GNM v ER [1983] 1 NSWLR 144 at 148C-149D
H v H [2015] NSWSC 837 at [27]-[37]
IR v AR [2015] NSWSC 1187 at [100]-[118], especially [111]-[113]
JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5)
M v M [2013] NSWSC 1495 at [10]-[20], [46]-[48]
Mao v AMP Superannuation Limited [2015] NSWCA 252 at [49]-[50] and [53]
Murphy v Doman (2003) 58 NSWLR 51
P v NSW Trustee and Guardian [2015] NSWSC 579 at [25]-[36], [227]-[273]. [290]-[292]
PY v RJS [1982] 2 NSWLR 700 at 702B-E, D-E
Re Application for partial management orders [2014] NSWSC 1468 at [19]-[24], ‘23]-[30]
Re Eve [1986] 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21
Re K, an incapable person in in receipt of interim damages awards [2014] NSWSC 1286 at [38]-[49]
Re W and L (Parameters of protected estate management orders) [2014] NSWSC 1106 at [39]-[53]
RL v NSW Trustee and Guardian (2012) 84 NSWLR 263 at 284[93]-285[96],
Secretary, Department of Health and Community Services JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading A v A

Details

AGLC: A v A [2015] NSWSC 1778
Case: [2015] NSWSC 1778
Decision Date: 27 November 2015

CaseChat Overview and Summary

The case of A v A involved an application by the Applicant, who was proceeding as a litigant in person, seeking the revocation of a financial management order and a tutorship order. These orders had been made under the NSW Trustee and Guardian Act, placing the NSW Trustee as the manager and tutor of the Applicant's estate. The Applicant argued that she was capable of managing her own affairs and sought to have the orders revoked. The dispute centred around whether the Applicant was genuinely incapable of managing her affairs, as required by the statutory provisions.

The primary legal issue before the court was whether the Applicant was incapable of managing her affairs to the extent that the financial management order and tutorship order should remain in place. The court had to consider the meaning of incapacity for self-management under the NSW Trustee and Guardian Act, as well as the principles of common law compensation proceedings, particularly in relation to the appointment of a tutor. The court also had to assess the Applicant's ability to manage her own affairs, particularly given her status as a litigant in person.

The court found that the Applicant was indeed incapable of managing her affairs and that the orders should remain in place. The Applicant's arguments did not persuade the court that she was capable of managing her own affairs. The court held that the statutory provisions for the appointment of a protected estate manager and a tutor in common law compensation proceedings were applicable and that the Applicant's incapacity justified the continuation of the orders. The Applicant's status as a litigant in person did not alter the court's assessment of her capacity.

The court dismissed the Applicant's application for the revocation of the financial management order and the tutorship order. The court confirmed the continued appointment of the NSW Trustee as the manager and tutor of the Applicant's estate, recognising the necessity of these orders to protect the Applicant's interests.

Orders