B v B - [2017] NSWSC 1674

Supreme Court

New South Wales

Medium Neutral Citation: B v B [2017] NSWSC 1674
Hearing dates: 10 November 2017
Date of orders: 10 November 2017
Decision date: 10 November 2017
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
An appeal from the Guardianship Division of NCAT summarily dismissed, with costs

Catchwords: GUARDIANSHIP – Appeal from NCAT – Civil and Administrative Tribunal Act 2013, Schedule 6, clause 14(1)(b) – Summary Dismissal – Abuse of Process – Failure to identify question of law or ground relied on for broader appeal – Failure to comply with court rules and orders – Proceedings maintained for collateral purpose – Appeal dismissed
Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: BB v LB & Ors [2017] NSWSC 1079.
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: Son of Incapable person
First Defendant: Daughter of Incapable Person
Representation:
Counsel:
Plaintiff: Self-represented
First Defendant: CH Cassimatis
Solicitors:
Plaintiff: Self-represented
First Defendant: Paul Duffy

File Number(s): 2017/001964481

Judgment – EX TEMPORE

On 14 June, 2017, the NSW Civil and Administrative Tribunal (NCAT), sitting in its Guardianship Division, made orders under the Guardianship Act 1987 NSW affecting Mrs B, the mother of the parties presently before the Court in these proceedings.
The Tribunal ordered that a pre-existing guardianship order be: (a) renewed, as a continuing guardianship order, for a period of 12 months; and (b) varied by appointment of guardians for Mrs B, both the Public Guardian and the first defendant.
The Public Guardian was given the function of deciding what access Mrs B would have to others, and the conditions of access.
The first defendant was given functions in relation to accommodation, health care and medical and dental consent.
Mrs B is a permanent resident in an aged care facility in Greenacre, a suburb of Bankstown.
By summons filed on 30 June, 2017, the plaintiff instituted an appeal from the decision of NCAT. The appeal, the subject of the summons, is governed by clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.
Clause 14(1)(b) provides for there to be an appeal "as of right on any question of law, or with the leave of the Court, on any other grounds."
The plaintiff’s summons takes a form which does not conform to the requirements of clause 14(1)(b) in the sense that it does not articulate any question of law, or set forth grounds for a grant of leave to appeal on a ground other than a question of law.
It might be added that the orders sought on appeal are deficient also in that, while they seek to remove the first defendant as a guardian for Mrs B, they do not set forth any responsible, alternative regime.
The parties to the summons initially were the plaintiff (described as “first plaintiff”), Mrs B (described as “second plaintiff”), the first defendant and two other persons, respectively designated the second and third defendants.
On 15 August 2017,…

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 B v B

Details

AGLC: B v B [2017] NSWSC 1674
Case: [2017] NSWSC 1674
Decision Date: 10 November 2017

CaseChat Overview and Summary

In the case of B v B, the appeal was brought from a decision made by the NCAT, which had determined that the appellant, B, was not suitable to be the guardian of his father, also B. The appellant had been appointed as the guardian of his father, who had been diagnosed with a form of dementia. The father was in need of personal and financial care. The dispute centred on whether the appellant was a suitable person to act as his father's guardian due to allegations of unsuitability and abuse of process. The court was tasked with reviewing the decision of the NCAT and determining whether there were any errors in law or procedure that warranted an appeal.

The legal issues before the court included whether the appeal had been properly brought under the Civil and Administrative Tribunal Act 2013, specifically clause 14(1)(b), which deals with summary dismissal of appeals. The appellant needed to demonstrate that there was a question of law or a ground relied on for a broader appeal. Additionally, the court examined whether the appellant had complied with the court rules and orders and whether the proceedings were being maintained for a collateral purpose. The court had to assess if there were any grounds for the appeal to be successful or if it should be dismissed due to procedural failings or misuse of the legal process.

The court found that the appeal was not properly brought as the appellant had failed to identify a question of law or a ground relied on for a broader appeal as required by the Act. Furthermore, the appellant did not comply with the court rules and orders, and the proceedings appeared to be maintained for a collateral purpose. The court held that there was no basis for the appeal to proceed and dismissed it. The court emphasised that the appellant needed to demonstrate a valid legal basis for the appeal and adhere to the procedural requirements set out in the Act.

The final orders of the court were that the appeal was dismissed, and the decision of the NCAT that the appellant was not a suitable person to act as his father's guardian remained in place. The appellant was ordered to pay the respondent's costs of the appeal. The court made it clear that the appeal had been summary dismissed due to the appellant's failure to comply with the legal requirements for bringing an appeal and the lack of a valid legal ground for the appeal.

Orders