G v W - [2014] NSWSC 108

Supreme Court

New South Wales

Medium Neutral Citation: G v W [2014] NSWSC 108
Hearing dates: 17 February 2014
Decision date: 25 February 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Order that the proceedings be dismissed

Catchwords: GUARDIANSHIP - Guardianship Tribunal - Orders for revocation of appointment of enduring guardian and for appointment of a guardian - Appeal to court, limited to questions of law - Appeal dismissed
Legislation Cited: Civil And Administrative Tribunal Act 2013 NSW: s 1 cl 3
Civil Procedure Act 2005 NSW, s 3(1)
Guardianship Act 1987 NSW, s 6K(2)(b)
Uniform Civil Procedure Rules 2005 NSW, r 7.13, 7.14(1),7.18(1)(a), 7.14(2), 14(2)(a), s 14(2)(b), s 17(1)(a)
Cases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [41]-[43] and [49]-[50]
A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [226].
CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-F Ho v NSW Public Guardian [2013] NSWSC 1788 at [15]-[16]
Re An Incapable Person D [1983] 2 NSWLR 590 at 595
RH v CAH [1984] 1 NSWLR 694 at 708
Texts Cited: -
Category: Principal judgment
Parties: Plaintiff (Daughter of person under guardianship)
First Defendant (Person under guardianship)
Second Defendant (Son of person under guardianship)
Third Defendant (Daughter of person under guardianship)
Representation: Counsel:
EA Cohen (Plaintiff)
G Salier (Tutor for First Defendant)
M Gorrick (Second and Third Defendants)
Solicitors:
Warren & Warren (Plaintiff)
G Salier Solicitor (Tutor for First Defendant)
Rundle & Co (Second and Third Defendants)

File Number(s): 2013/181939

Judgment

INTRODUCTION

The plaintiff appeals to the Court, pursuant to s 67 of the Guardianship Act 1987 NSW, from orders made by the Guardianship Tribunal on 17 May 2013.

In deference to s 57 of the Guardianship Act (limiting the publication of names of participants in Tribunal proceedings), the names of the parties are, in this Judgment, anonymised.

The Guardianship Tribunal was abolished on 1 January 2014 but, in effect, immediately reincarnated as the Guardianship Division of the Civil and Administrative Tribunal of NSW ("NCAT") established by the Civil and Administrative Tribunal Act 2013 NSW: schedule 1 clause 3.

Part 6 of the Guardianship Act (which governed the constitution and business of the Guardianship Tribunal) was repealed on the establishment of NCAT, with the consequence that s 67 (falling within Part 6) no longer operates at large.

Nevertheless, the orders of the Guardianship Tribunal under challenge in these proceedings, and the operation of s 67 as the vehicle for that challenge, remain in place by virtue of transitional provisions found in the Civil and Administrative Tribunal Act: schedule 1 clause 8.

The plaintiff commenced these proceedings in the Court on 17 June 2013. By schedule 1 clause 8 of the Civil and Administrative Tribunal Act, the proceedings are to be dealt with by the Court under s 67 of the Guardianship Act as if that section had not been repealed but, should the Court…

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 G v W

Details

AGLC: G v W [2014] NSWSC 108
Case: [2014] NSWSC 108
Decision Date: 25 February 2014

CaseChat Overview and Summary

The case involved G, an individual who had appointed W as their enduring guardian. Disputes arose between G and W, leading G to seek the revocation of W's appointment and the appointment of an alternative guardian. The matter was first heard by the Guardianship Tribunal, which decided in favour of G and revoked W's appointment as enduring guardian. W appealed the decision to the court, but the appeal was limited to questions of law.

The primary legal issue before the court was whether the Guardianship Tribunal had erred in law in revoking W's appointment as enduring guardian and appointing a new guardian in G's place. The court had to consider the applicable legal principles and whether the Tribunal's decision was supported by the evidence and was in accordance with the law. W argued that the Tribunal had not given sufficient weight to certain evidence and had made an error in assessing the relationship between G and W.

The court found that the Guardianship Tribunal had exercised its discretion correctly and had not erred in law. The Tribunal had considered all relevant evidence and had made findings that were consistent with the law. The court held that the Tribunal had not erred in revoking W's appointment and that the appointment of a new guardian was appropriate in the circumstances. The appeal was dismissed, and the Tribunal's decision stood. The court found that the Tribunal's decision was supported by the evidence and was in accordance with the relevant legislation. The court did not find any error in the Tribunal's assessment of the relationship between G and W or in its consideration of the evidence presented.

Orders