AW v WW

[2023] NSWSC 724

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

AW v WW [2023] NSWSC 724

Hearing dates:

26, 27 June 2023

Date of orders:

27 June 2023

Decision date:

27 June 2023

Jurisdiction:

Equity - Protective List

Before:

Lindsay J

Decision:

Order that the plaintiff’s application (under clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW) for leave to appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal on a ground other than a question of law be dismissed.

Catchwords:

GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appeal from dismissal by NCAT of applications for the appointment of a guardian and a financial manager.

APPEALS – Appeal to Court from Guardianship Division of the NSW Civil and Administrative Tribunal – Application for leave to appeal on a ground other than a question of law dismissed - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14(1)(b).

Legislation Cited:

Australian Courts Act 1828 (Imp)

Civil and Administrative Tribunal Act 2013 NSW

Guardianship Act 1987 NSW

New South Wales Act 1823 (Imp)

Powers of Attorney Act 2003 NSW

Surveillance Devices Supreme Court Act 1970

Cases Cited:

P v NSW Trustee and Guardian [2015] NSWSC 579

Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

Category:

Procedural rulings

Parties:

Plaintiff: AW (a son)
Defendant: WW (a mother)

Representation:

Counsel:

Plaintiff: Miles Condon SC and Irina Hoskinson
Defendant: RD Marshall SC and N Olson

Solicitors:

Plaintiff: Swan Lawyers
Defendant: MacRae Lawyers

File Number(s):

2023/00080280

JUDGMENT

1. The plaintiff in these proceedings is the adult son (and only child) of the defendant, an 89 year old widow whose husband died in 2015.

2. On 3 February 2021 the defendant revoked an appointment of the plaintiff as her enduring attorney and on 6 February 2021 appointed an accountant (“JM”) as her new enduring attorney pursuant to the provisions of the Powers of Attorney Act 2003 NSW.

3. On 8 October 2021 the plaintiff lodged with the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) applications (under the Guardianship Act 1987 NSW) for the appointment of a guardian and a financial manager for the defendant.

4. On 19 October 2021 the defendant executed an enduring guardianship appointment (under the Guardianship Act 1987) appointing “KB” (a retired solicitor and cousin by marriage) and “KS” (a solicitor) as her guardians jointly and severally.

5. There is no challenge to the validity of the defendant’s appointments of enduring agents, but the plaintiff contends that, if the defendant’s best interests are to be served, those appointments should be displaced, respectively, by the appointment of a financial manager and the appointment of a guardian.

6. By orders made on 28 November 2022 (supported by reasons for decision published on 10 February 2023), the Tribunal dismissed both applications of the plaintiff.

7. By a summons filed on 17 March 2023 (and amended on 7 June 2023) the plaintiff appeals from those orders to this Court pursuant to clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.

8. So far as is presently material, clause 14(1)(b) entitles the plaintiff, as a party to the Tribunal proceedings, to an appeal “as of right on any question of law, or with the leave of the Court, on any other grounds”.

9. The plaintiff contends that the Tribunal’s orders are attended by errors of law. It is not presently necessary to do more than to notice that contention.

10. The present focus for attention is on the question whether the plaintiff should be granted leave to appeal on grounds other than a question of law.

11. Implicit in that question is whether the Court should, as it is empowered to do by clause 14(3), decide to deal with the appeal by way of a new hearing and to permit “fresh evidence” to be given on the hearing of the appeal.

12. In dealing with the question of leave I am mindful that the merits of the appeal are not presently before the Court.

13. That said, I have had the benefit of written and oral submissions from senior counsel on both sides of the record canvassing each party’s case generally.

14. The decision to be made on the question of leave (and any decision about related questions regarding the nature of the appeal and the evidentiary material before the Court on the hearing of the appeal) are essentially case management decisions informed by the protective purpose of the proceedings.

15. That purpose is confirmed by section 4 of the Guardianship Act 1987, expressly applicable in proceedings in the Tribunal by virtue of clause 5 of Schedule 6 to the Civil and Administrative Tribunal Act 2013.

16. Section 4 of the Guardianship Act provides a statutory template for decision-making that is informed by the purposive nature of an exercise of protective jurisdiction by the Court which, unlike the Tribunal, possesses an inherent jurisdiction derived from its establishment in the 1820s (by the Third Charter of Justice promulgated pursuant to the New South Wales Act 1823 (Imp), continued by the Australian Courts Act 1828 (Imp) and preserved by section 22 of the Supreme Court Act 1970 NSW) , reinforced by section 23 of the Supreme Court Act 1970.

17. As confirmed by the High Court of Australia in Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259, the object of the jurisdiction is to take “care of those who are not able to take care of themselves”. In pursuit of that object (to paraphrase section 4(a) of the Guardianship Act), the welfare and interests of a person in need of protection should be given paramount consideration.

18. In addressing the question of leave both parties before the Court have been content to do so by reference to observations made in P v NSW Trustee and Guardian [2015] NSWSC 579, with particular reference to paragraphs 111-116, 148-149 and 190-198. Senior counsel for the defendant, also referred to paragraphs 24-26.

19. In support of his application for leave, the plaintiff relies upon affidavit evidence of a son (a grandson of the defendant) deposing to conversations between himself and the defendant since the date of the orders of the Tribunal under challenge in the appeal. The admissibility of some of that evidence on the hearing of an appeal is likely to be contested on the ground that (in contravention of section 8 of the Surveillance Devices Act 2007 NSW) the deponent recorded conversations with the defendant on his mobile phone without her agreement.

20. The plaintiff contends that his son’s evidence, if accepted, shows that the defendant is not being well served by those appointed by her as her enduring agents, such that appointments of a guardian and a financial manager are required.

21. I do not propose to canvass the “fresh evidence” in detail lest I get drawn into matters of controversy best reserved for a hearing of the appeal.

22. Suffice to say that, in my assessment, the plaintiff’s “fresh evidence” (if permitted) would be unlikely to be decisive of any question for determination by the Court on the hearing of the appeal as “a new hearing” and would be likely to divert attention from the real questions in dispute capable of being addressed within the framework of the plaintiff’s appeal on questions of law.

23. The plaintiff’s application for leave, if granted, could cause unnecessary stress to an already fragile defendant by forcing her into the witness box to canvass topics which, as recorded in the reasons for decision of the Tribunal, have already caused her considerable distress.

24. In my opinion, the defendant’s welfare and interests are likely to be best served by confining the plaintiff’s appeal to questions of law.

25. If the Court in due course decides that the Tribunal’s orders are materially affected by errors of law, as the plaintiff contends, it will, at that time, need to consider (under clause 14(4) of Schedule 6) how best to proceed: in particular, whether itself to determine the case on its merits or to order that the case be reconsidered by the Tribunal.

26. The Court might (or might not) at that time consider it to be appropriate to receive evidence of the nature of that proffered by the plaintiff as “fresh evidence”, subject to allowing the defendant an opportunity to respond.

27. Accordingly, I order that the plaintiff’s application for a grant of leave under clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW be dismissed.

28. As presently advised, I propose to reserve the costs of the application for further consideration upon determination of the appeal.

29. The parties’ attention, and that of the Court, should now turn to what is required to facilitate an orderly determination of the appeal.

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Amendments

28 June 2023 - On the coversheet, "Macrea Lawyers" is amended to read MacRae Lawyers

Decision last updated: 28 June 2023