Dunning v NSW Trustee and Guardian - [2015] NSWSC 2095

Supreme Court

New South Wales

Medium Neutral Citation: Dunning v NSW Trustee & Guardian [2015] NSWSC 2095
Hearing dates: 14 July 2015
Date of orders: 15 July 2015
Decision date: 15 July 2015
Jurisdiction: Equity - Duty List
Before: Brereton J
Decision:
Moneys paid into Dust Diseases Tribunal and thence to NSW Trustee be paid out to solicitors for plaintiff.

Catchwords: DISABILITY – application for payment out of moneys paid into Dust Diseases Tribunal pursuant to judgment of Tribunal – where beneficiary formerly incapable of managing affairs – where money now held by NSW Trustee & Guardian in common fund – whether Court has jurisdiction to order payment out of money to plaintiff – effect of (NSW) Civil Procedure Act 2001, s 77 – s 77 not to detract from Court’s inherent parens patriae jurisdiction – power to order payment of money to plaintiff personally where no longer incapable.
Legislation Cited: (NSW) Civil Procedure Act 2001, s 77(2), s 77(3), s 77(4), s 78, s 79
(NSW) NSW Trustee and Guardian Act 2009, s 86, s 104, s 105
(NSW) Public Trustee Act 1913, s 36B
(NSW) Uniform Civil Procedure Rules 2005, r 41.7
Cases Cited: BHP Billiton Ltd v Dunning [2015] NSWCA 55
CJ v AKJ [2015] NSWSC 498
Dickson v Australian Associated Motor Insurers Ltd [2010] QSC 69; [2011] 1 Qd R 214
Diver v Diver [2007] VSC 146; (2007) 16 VR 318
Dunning v BHP Billiton Limited [2014] NSWDDT 3
H v H [2015] NSWSC 837
Jones v Moylan (1997) 18 WAR 492
Morris v Zanki (1997) 18 WAR 260
Singh (by her next friend Singh) v Calvary Hospital ACT Inc (No 2) (2009) 3 ACTLR 247; (2009) 166 ACTR 78; (2009) 3 ASTLR 50; [2009] ACTSC 57
Smith v Reynolds [1989] VR 309
Category: Principal judgment
Parties: Jake Douglas Dunning (first plaintiff)
Steven Douglas Dunning (second plaintiff)
NSW Trustee & Guardian (defendant)
Representation:
Counsel:
P Semmler QC (plaintiffs)
C Phang (solicitor) (defendant)
Solicitors:
Slater & Gordon Limited (plaintiffs)
NSW Trustee & Guardian (defendant)

File Number(s): 2015/178646

Judgment (ex tempore)

HIS HONOUR: By summons filed on 17 June 2015, the then plaintiff Jake Douglas Dunning sought to invoke the protective jurisdiction of the Court in respect of moneys that had been paid into the Dust Diseases Tribunal in satisfaction of an award of damages in favour of his father Steven Douglas Dunning, who was named as defendant. For the sake of convenience and without disrespect, I shall refer to them by their first names. Jake had been Steven’s tutor in the proceedings in the Dust Diseases Tribunal. Because it appeared at that stage that the moneys had been paid to the NSW Trustee & Guardian pursuant to (NSW) Civil Procedure Act 2001, s 77(4), orders were made reconstituting the proceedings by removing Steven as defendant and joining him as second plaintiff, and by joining the NSW Trustee & Guardian (“the NSW Trustee”) as defendant.
After the proceedings were amended, the summons was served upon…

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: [2015] NSWSC 2095
Decision Date: 15 July 2015

CaseChat Overview and Summary

Dunning v NSW Trustee and Guardian involved a dispute over the distribution of funds held by the NSW Trustee and Guardian, which were originally paid into the Dust Diseases Tribunal. The plaintiff, Dunning, sought payment of these funds, which were part of a common fund and had previously been held under the authority of the Tribunal due to Dunning's incapacity to manage his own affairs. The central issue was whether the Court had the jurisdiction to order payment of the funds directly to Dunning, who had since recovered his capacity to manage his affairs.

The legal question before the court was the interpretation of section 77 of the Civil Procedure Act 2001 (NSW) in the context of the court's inherent jurisdiction to act as parens patriae. Specifically, the court had to determine if section 77 limited the court's ability to order payments from the common fund to an individual who had regained their capacity. The court found that section 77 did not detract from the court's inherent jurisdiction to make such orders where the beneficiary was no longer incapable of managing their own affairs.

The court's reasoning was that the inherent jurisdiction of the court to act in the best interests of individuals who are incapable of managing their own affairs is a fundamental aspect of the legal system. While section 77 of the Civil Procedure Act 2001 (NSW) provides a statutory framework for the administration of funds for incapacitated persons, it does not negate the court's broader inherent jurisdiction. The court concluded that where a beneficiary has regained their capacity, the court retains the power to make orders for the payment of funds directly to that beneficiary. The court's decision affirmed that the inherent jurisdiction of the court to act as parens patriae could not be constrained by statutory provisions that do not explicitly limit this power.

Orders