Bovaird v Bovaird

[2007] NSWSC 146

CITATION:	Bovaird v Bovaird [2007] NSWSC 146 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	28/02/07
JUDGMENT OF:	Gzell J
EX TEMPORE JUDGMENT DATE:	28 February 2007
DECISION:	Application dismissed with costs.
CATCHWORDS:	MENTAL HEALTH - Guardians, Committees, Administrators, Managers and Receivers - Application by second defendant before the Guardianship Tribunal for appointment of a financial manager of first defendant - Tribunal also to consider referring the matter to the Supreme Court - Plaintiff, son of first defendant, sought stay of the proceedings before the Tribunal - Lost confidence in Tribunal - Alleged second defendant using proceedings for forensic advantage in other proceedings in the Supreme Court - Whether the seeking of a declaration that the first defendant was incapable of managing her affairs ousted the jurisdiction of the Tribunal under the Guardianship Act 1987, s 25K - Common ground that first defendant incapable of managing her affairs - Whether a real issue in the Supreme Court was required to oust the jurisdiction
LEGISLATION CITED:	Guardianship Act 1987
PARTIES:	Leon Lewis MacGillivray Bovaird - First Plaintiff Peter Bruce Raupach - Second Plaintiff Monica Catherine Bovaird - First Defendant Diana Catherine Fallon - Second Defendant The Guarianship Tribuanl - Third Defendant
FILE NUMBER(S):	SC 0011/07
COUNSEL:	Mr R Harper SC - Plaintiffs Mr M McFadden - First Defendant Mr J Clarke - Second Defendant
SOLICITORS:	Garland Hawthorn Brahe - Plaintiffs MBP Legal - Second Defendant Ms Cho - Third Defendant - The Guardianship Tribunal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

GZELL J

WEDNESDAY 28 FEBRUARY 2007

0011/07 LEON LEWIS MACGILLIVRAY BOVAIRD & ANOR v MONICA CATHERINE BOVAIRD & ORS

EX TEMPORE JUDGMENT

1 Leon Lewis MacGillivray Bovaird, the plaintiff, is the only son and only child of Monica Catherine Bovaird, the first defendant. Mr Bovaird has cared for his mother since the death of his father and is seeing to the discharge of her expenses.

2 Mrs Bovaird commenced proceedings against the executors of her deceased brother's estate in this Court. One of the executors is Diana Catherine Fallon, the second defendant. She is the applicant before The Guardianship Tribunal, the third defendant, for an order that a financial manager be appointed with respect to Mrs Bovaird.

3 Mr Bovaird seeks an order that Ms Fallon’s application in The Guardianship Tribunal be stayed until further order.

4 Mr Bovaird has lost confidence in the activities of the Tribunal as a result of a number of incidents that have occurred in the conduct by it of that application.

5 Undertakings have been given on his behalf limiting the amounts of money that would be disbursed by him from his mother's funds. One such undertaking was recorded in writing but wrongly recorded by the Tribunal. There was an indication that a directions hearing would first occur instead of which, without notice to Mr Bovaird, the matter was set down for hearing and set down without due regard to his convenience.

6 The attitude that has been taken by Ms Fallon with respect to the disbursement of moneys by Mr Bovaird has been to oppose any payments with respect to costs. It was submitted by Mr Harper SC, who appears for Mr Bovaird, that there was a clear attempt by Ms Fallon to use the proceedings before the Tribunal for a forensic purpose with respect to the matters in dispute in the Supreme Court.

7 Mr Harper submitted that the proceedings before the Tribunal should be stayed because the Tribunal lacks jurisdiction to deal with an abuse of its process. In my view, that specialist Tribunal is entitled to have regard to such matters in making its determinations.

8 Counsel appearing for Ms Fallon has pointed out that the application, which is listed for hearing before the Tribunal tomorrow, is for the appointment of a financial manager. It does not seek, and counsel has informed the Court that Ms Fallon will not seek, the appointment of Ms Fallon as the financial manager.

9 Mr Harper submits that the appropriate person to be appointed as financial manager is Mr Bovaird. The legal officer assisting the Tribunal has indicated that the Tribunal has the capacity to accept a late cross-application and would likely do so by entertaining an application by Mr Bovaird to be appointed as the financial manager.

10 There is no dispute between the parties that a financial manager should be appointed, it being a matter of agreement between the parties that Mrs Bovaird is incapable of managing her affairs. The dispute before the Tribunal with respect to the application is the identity of the person or persons to be appointed.

11 There is another matter that is to be heard by the Tribunal tomorrow before the application for the appointment of a financial manager and that is the question whether or not the matter should be referred to the Supreme Court under s 25L of the Guardianship Act 1987.

12 Mr Harper submits that if the Tribunal is to consider that question all the more reason for the Court to take over the determination of the application and for the stay his client seeks to be made.

13 Section 25K(1) of the Guardianship Act 1987 is in the following terms:

“The Tribunal does not have jurisdiction to make a financial management order other than an interim financial management order in respect of a person if the question of the person's capability to manage his or her own affairs is before the Supreme Court.”

14 In my view, what is required to exclude the jurisdiction of the Tribunal is a real question in issue in the proceedings before the Supreme Court. There is no real question in issue in this Court as to Mrs Bovaird’s ability to conduct her affairs because it is common ground that she is incapable of managing her affairs and a concession has been made to that effect.

15 It would be a strange result indeed if the mere filing of a document in this Court alleging an incapacity to manage affairs, when that was no real issue in dispute in that respect, could deprive the Tribunal of jurisdiction.

16 The Tribunal has been set up as an expert Tribunal to deal with matters such as the appointment of persons as financial managers of others. It will be of assistance to this Court to have the views of the Tribunal even if the Tribunal takes the view that the matter should be forwarded or transferred to the Supreme Court.

17 The question of who should be appointed financial manager is a matter for which the Tribunal is peculiarly qualified to make a determination. Those qualifications are generally lacking in the Supreme Court.

18 It is for these reasons that I am of the view that the matters should proceed tomorrow before the Tribunal and I dismiss the notice of motion. I order the plaintiff to pay the second defendant's costs.

01/03/2007 - Spelling of Bovaird was wrong in the body of the judgment. - Paragraph(s) Heading of the judgment