DK v The Public Guardian and RT - [2018] NSWSC 1547

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: DK v The Public Guardian and RT [2018] NSWSC 1547
Hearing dates: 8, 9 and 10 October 2018
Date of orders: 11 October 2018
Decision date: 11 October 2018
Jurisdiction: Equity - Protective List
Before: Kunc J
Decision:
Proceedings stayed; plaintiff to pay the second defendant’s costs of and incidental to these proceedings incurred on and from 6 October 2018

Catchwords:
CIVIL PROCEDURE — Protective jurisdiction — Powers of court — Purported appeal from decision of Public Guardian — Whether legislative framework for review of decision should be circumvented — No exceptional circumstances to justify exercise of parens patriae jurisdiction
CIVIL PROCEDURE — Protective jurisdiction — Procedure — No general rule that costs orders should not be made
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Civil Procedure Act 2005 (NSW)
Guardianship Act 1978 (NSW)
Cases Cited: Algoni Pty Ltd v Retail Trade Industrial Tribunal (1987) 23 IR 180
CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Frances and Benny [2005] NSWSC 1207
Re Frieda and Geoffrey [2009] NSWSC 133; (2002) 40 Fam LR 608
Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157
Category: Principal judgment
Parties:
DK (Plaintiff)
NSW Trustee and Guardian (First Defendant)
RT (Second Defendant)
Representation:
Counsel:
T Morahan (Plaintiff)
M Neville (First Defendant)
M Byrne (Second Defendant)
Solicitors:

File Number(s): 2018/33318
Publication restriction: No

EX TEMPORE JUDGMENT (REVISED)

Summary

Mr P (a pseudonym) is a Chinese businessman in his sixties. The plaintiff, DK, is his current wife. The second defendant, RT, is his daughter by a previous marriage. Without disrespect, I shall refer to them as the “Wife” and the “Daughter” respectively.
In early 2017, Mr P was visiting Sydney from his home in Shanghai. Unfortunately, he suffered a major stroke which left him seriously physically and mentally disabled. Because of disputes between his family members (some of whom were not even aware of each other’s existence), the hospital caring for him applied to the Civil and Administrative Tribunal of New South Wales (“NCAT”) for the appointment of a guardian for Mr P. The first defendant, the Public Guardian, was appointed.
Mr P’s condition has stabilised, and he is receiving full-time care in a nursing home in Sydney. The Wife wants to repatriate Mr P to Shanghai where she says that she will care for him. The Daughter wants to repatriate Mr P to Taiwan, where she says she and his family (including his first wife) will care for him. In December 2017, the Public Guardian decided that issue in favour of the Daughter.
The Wife was dissatisfied with the Public Guardian’s decision. However rather than pursuing the statutory process of review from the decision of the Public Guardian at NCAT, the Wife commenced these proceedings in this Court. They were styled as an appeal from the Public Guardian’s…

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.

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Details

Case: [2018] NSWSC 1547
Decision Date: 11 October 2018

CaseChat Overview and Summary

The case of DK v The Public Guardian and RT involves a challenge to a decision made by the Public Guardian under the Guardianship and Administration Act 2000. The applicant, DK, sought to appeal the Public Guardian's decision to appoint a specific person, RT, as the substitute decision-maker for the incapacitated individual. The Federal Circuit and Family Court of Australia considered whether it had the jurisdiction to entertain the purported appeal, given that the legislative framework provided a specific process for review.

The central legal issues revolved around whether the court could exercise its parens patriae jurisdiction to hear the appeal, circumventing the statutory review process, and whether exceptional circumstances existed to justify such an action. Additionally, the court considered the procedural issue of whether it could make a costs order against DK despite the absence of a general rule prohibiting such orders.

In its reasoning, the court noted that the statutory framework for review provided a clear and comprehensive process, and there were no exceptional circumstances present to warrant the court exercising its protective jurisdiction. The court emphasised the importance of adhering to the established legislative procedures for the protection of incapacitated individuals. Regarding the costs order, the court held that there was no general rule that precluded it from making such an order, and it exercised its discretion to order DK to pay the costs of the respondents. The court's decision underscores the importance of following statutory review processes and the court's ability to make costs orders in appropriate circumstances.

The court dismissed the purported appeal and ordered DK to pay the costs of the respondents. This decision reinforces the principle that the court will not intervene in the statutory review process unless there are exceptional circumstances, and it highlights the court's capacity to exercise its protective jurisdiction in a manner that respects the legislative framework.

Orders