F v NSW Trustee and Guardian - [2017] NSWSC 1319

Supreme Court

New South Wales

Medium Neutral Citation: F v NSW Trustee and Guardian [2017] NSWSC 1319
Hearing dates: 26 September 2017
Date of orders: 26 September 2017
Decision date: 26 September 2017
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
(1) Application for leave to appeal made under the Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14(1)(b) refused.

(2) Order that the plaintiff’s summons be dismissed.
(3) No order as to costs.
Catchwords:
APPEALS — Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal — Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Sch 6, cl 14.
MENTAL HEALTH - Appeal to Court from Guardianship Division of NSW Civil and Administrative Tribunal - Construction and operation of Civil and Administrative Tribunal Act 2013 NSW, Sch 6, cl 14(1)(b) — Application for leave to appeal on grounds other than a “question of law” — Grant of leave requires question of principle or some form of irregularity – Leave refused - Appeal dismissed.
Legislation Cited: Civil and Administrative Tribunal Act 2013 NSW
Guardianship Act 1987 NSW
Mental Health Act 2007 NSW
NSW Trustee and Guardian Act 2009 NSW
Cases Cited: C v W [2015] NSWSC 1774
CJ v AKJ [2015] NSWSC 498
Collins v Urban [2014] NSWSCATAP 17
Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378
Marion’s Case (1992) 175 CLR 218
McD v McD [1983] 3 NSWLR 81
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69
Re D [2012] NSWSC 1006
Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4th) 1 at 17
Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608
Re R [2000] NSWSC 886
Re Victoria [2002] NSWSC 647; 29 Fam LR 157
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff: F, a protected person
First Defendant: NSW Trustee and Guardian
Second Defendant: South Western Sydney Local Health District.
Third Defendant: NSW Public Guardian
Representation:
Counsel:
Plaintiff: In person, assisted (with leave) by his wife
First Defendant: JC Brouwer, Solicitor, NSW Trustee
Second Defendant: SA Woods
Third Defendant: JC Brouwer, Solicitor, NSW Trustee
Solicitors:
Plaintiff: Self Represented
First Defendant: RLJ Pollard, NSW Trustee
Second Defendant: Crown Solicitor NSW
Third Defendant: RLJ Pollard, NSW Trustee

File Number(s): 2017/00072459

EX TEMPORE Judgment – REVISED

INTRODUCTION

At the conclusion of the hearing of these proceedings on 26 September 2017, I delivered short, oral reasons for judgment, expressly reserving (with the concurrence of all parties) a right to supplement them in written reasons to be published subsequently.
An object in taking that course was to provide to the plaintiff and his wife a general explanation of the judgment of the Court at a time when they had available to them, in court, the services of an accredited…

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: [2017] NSWSC 1319
Decision Date: 26 September 2017

CaseChat Overview and Summary

In the case of F v NSW Trustee and Guardian, the appellant sought leave to appeal from the Guardianship Division of the NSW Civil and Administrative Tribunal to the Supreme Court of New South Wales. The dispute arose from an application made to the Guardianship Division under the Civil and Administrative Tribunal Act 2013 (NSW) for a determination regarding the mental health status of the appellant. The Tribunal had dismissed the application, leading to the present appeal.

The primary legal issue before the Court was whether the appellant had satisfied the criteria for leave to appeal as stipulated in clause 14(1)(b) of the Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW). Specifically, the Court had to determine whether the appellant had identified a question of principle or some form of irregularity that warranted the grant of leave to appeal. The appellant argued that the Tribunal had incorrectly interpreted the relevant statutory provisions, which necessitated a review by the Court.

The Court found that the appellant had not demonstrated a question of principle or any irregularity in the Tribunal's decision-making process. The Court held that the appeal was based on a disagreement with the Tribunal's interpretation of the law, which did not meet the threshold for leave to appeal under clause 14(1)(b). Consequently, the Court refused the application for leave to appeal and dismissed the appeal. The Court's decision was grounded in the understanding that appeals on questions of law are generally not permitted, except where there is a clear irregularity or a significant question of principle involved.

Orders