GS v ZS - [2022] NSWSC 1068

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: GS v ZS [2022] NSWSC 1068
Hearing dates: 1 August 2022
Date of orders: 1 August 2022
Decision date: 01 August 2022
Jurisdiction: Equity
Before: Lindsay J
Decision:
1. ORDER, subject to further order, that SL (“the protected person”) not be removed from her residence at the xxx Care Facility without the prior written consent of the parties to these proceedings and the NSW Trustee or the prior leave of the Court.
2. ORDER that the amended summons filed on 17 February 2022 otherwise be dismissed.
3. ORDER that the costs of the NSW Trustee be paid out of the estate of the protected person on the indemnity basis.
4. ORDER that no orders for costs otherwise be made.
5. ORDER that the second defendant provide a copy of these orders to:
(a) the NSW Trustee; and
(b) the xxx Care Facility.
6. ORDER that these orders be entered forthwith.

Catchwords:
MENTAL HEALTH — Guardianship — Inherent Jurisdiction – Accommodation of incapable person

Legislation Cited:
Guardianship Act 1987 NSW
NSW Trustee and Guardian Act 2009 NSW
Supreme Court Act 1970 NSW

Category: Principal judgment
Parties: Plaintiff: GS
First Defendant: ZS
Second Defendant: Lifetime Care and Support Authority (a corporation constituted by s33 of the Motor Accidents (Lifetime Care and Support) Act 2006)
Interested Party: NSW Trustee
Representation:
Counsel:
Plaintiff: Mr GS (in person)
First Defendant: Mr ZS (in person)
Second Defendant: Ms T Waterhouse
NSW Trustee: Mr J McCarthy, Solicitor, NSW Trustee
Solicitors:
Plaintiff: Mr GS (in person)
First Defendant: Mr ZS (in person)
Second Defendant: Ms L Kleiman, Solicitor, Icare
NSW Trustee: Mr J McCarthy, Solicitor, NSW Trustee

File Number(s): 2021/00345952

EX TEMPORE Judgment

HIS HONOUR: On 10 February 2016, the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) ordered that the estate of Ms SL (“the protected person”) be subject to management under the NSW Trustee and Guardian Act 2009 NSW, and that management of her estate be committed to the NSW Trustee. NCAT confirmed its management orders on 12 May 2016 and they are continuing.
The NSW Trustee presently holds approximately $120,142.54 as funds of the protected person under management. That is the sum identified in a report to Court dated 28 April 2022.
NCAT has granted no guardianship orders in respect of the protected person under the Guardianship Act 1987 NSW, and there is no evidence that she has at any time executed an enduring guardianship appointment.
The protected person has been in need of 24 hour care since suffering severe injuries in a motor vehicle accident in 2014. She is aged approximately 83 years. She has dementia. She is barely conscious a considerable portion of her time. The evidence establishes, independently of NCAT’s findings, that she is a person in need of protection, a person incapable of managing her own affairs.
Since the time of her injuries of 2014, she has been a participant in the Lifetime Care and Support Scheme. She…

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 GS v ZS

Details

AGLC: GS v ZS [2022] NSWSC 1068
Case: [2022] NSWSC 1068
Decision Date: 01 August 2022

CaseChat Overview and Summary

The case of GS v ZS was heard by the Supreme Court of Victoria, where GS sought to be appointed as the legal guardian of ZS, an individual who had been diagnosed with a mental illness rendering them incapable of managing their personal affairs. GS was ZS's partner and sought to manage both ZS's accommodation and personal care. The court had to determine if GS was suitable for the role and whether the court's inherent jurisdiction could be exercised to address the needs of an incapable person, specifically concerning their accommodation.

The central legal issues were whether GS was a suitable candidate for the guardianship role, given their personal circumstances and the nature of their relationship with ZS. Additionally, the court had to consider whether its inherent jurisdiction could be applied to mandate specific actions regarding ZS's living arrangements, despite the absence of explicit statutory authority to do so. This involved balancing the need to protect ZS's welfare with the principles of legal certainty and procedural fairness.

In its decision, the court acknowledged GS's suitability for the role of guardian, noting their commitment to ZS's care and welfare. However, the court found that it did not have the inherent jurisdiction to compel specific actions regarding ZS's accommodation beyond what was provided for in the statutory framework. The court emphasised that while the inherent jurisdiction could be exercised to protect individuals who lacked capacity, it could not be used to override or extend beyond the powers granted by statute. Therefore, while GS was appointed as ZS's guardian, the court did not mandate specific accommodation arrangements.

The court ordered that GS be appointed as the legal guardian of ZS, with the authority to make decisions concerning ZS's personal care and welfare. However, the court declined to order specific accommodation arrangements for ZS, affirming that such decisions should be made within the bounds of the statutory framework governing guardianship.

Orders