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

1. 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.

2. 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.

3. 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.

4. 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.

5. Since the time of her injuries of 2014, she has been a participant in the Lifetime Care and Support Scheme. She is presently a resident in the xxx Care Facility run by Opal Healthcare. The care she receives there is funded by the Lifetime Care and Support Authority, the second defendant.

6. The protected person is a permanent resident of Australia following her arrival here from China. She has two adult sons living in Australia. The plaintiff is the elder son, the first defendant is the younger son.

7. Medical evidence before the Court comprises, centrally, a report of Professor Ian Cameron dated 24 December 2021, and an updated and much shorter medical report by the protected person’s general practitioner, Dr Terresa SM Chan dated 18 July 2022.

8. The tenor of the medical evidence is that the protected person is well cared for in the nursing home where she resides and that she could not safely be allowed to travel to China (or anywhere else) without a substantial risk to her frail health.

9. The problem that arises in the present case is that the plaintiff passionately believes that his mother should return to China where, he says, the care she could receive would be better than that available here. His contentions to that effect do not sit comfortably with the medical evidence that has been provided by independent qualified practitioners.

10. The first defendant strongly opposes his brother’s application for the current residence of the protected person to be disturbed. In his contention, the Court should have regard particularly to the evidence of Professor Cameron and Dr Chan, leaving the protected person where she is in her current care facility.

11. The second defendant has appeared in these proceedings, in substance, in the position of an amicus curiae, although a funder of the care of the protected person.

12. The second defendant does not exclude the possibility that it might provide some of the costs of care for the protected person should she be cared for in China, but it cannot make provision for her to be relocated and any care expenses would need to be monitored and proven to be both reasonable and necessary.

13. That said, there is no difficulty, in the submission of the second defendant, with the protected person’s care in her present facility being funded by the second defendant.

14. The NSW Trustee has appeared in these proceedings from time to time but sought to be excused from appearing at the final hearing of the proceedings in circumstances in which the second defendant was to be, and has been, available to assist the Court, and the parties, in the resolution of the proceedings.

15. To the extent that the proceedings involve the NSW Trustee, guidance on an exercise of the Court’s jurisdiction might be found in section 39 in the NSW Trustee and Guardian Act 2009.

16. The principles there set out reflect the nature of the Court’s inherent jurisdiction which, in these proceedings, is more fully engaged than any orders that might be made under the NSW Trustee and Guardian Act. The jurisdiction of the Court, sometimes described as “inherent jurisdiction”, is that preserved by s 22 of the Supreme Court Act 1970 NSW, supplemented by s 23 of the Act.

17. The Court’s jurisdiction is governed by the purpose it serves, which is the provision of care for those who are not able to take care of themselves: Secretary Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 at 258-259; PB v BB [2013] NSWSC 1223. Consideration of the welfare and interests of a particular person in need of protection is paramount: Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G.

18. The jurisdiction exercised by the Court is not in any sense a “consent jurisdiction” because the Court itself has to be satisfied as to the best interests of the person in need of protection, in this case the protected person.

19. Although it is not a consent jurisdiction, the jurisdiction is required to be exercised with the benefit of a protected person’s family or other interested persons having had an opportunity to express their particular views with the benefit of insights that they have into the life, times and circumstances of the person in need of protection.

20. In this case consultation with the family is characterised by strong views expressed by each of the protected person’s sons.

21. It is not possible in a case such as the present to run to ground each and every one of the matters of dispute between family members. I have had the benefit today, and on earlier occasions, of hearing representations from each of the plaintiff and the first defendant.

22. In exercise of the Court’s inherent jurisdiction and, in particular, in considering what is in the best interests of the protected person, the view that I have formed is that it would not be in her interests for her to be moved from her current residence and, more particularly, allowed or required to travel over a long distance to a destination where no distinct arrangement has been made for her care.

23. She is, I accept, well cared for in her present accommodation. She has each of her sons available to her as visitors and to provide any supplementary care that may be appropriate within the family circle. She has secure funding in her nursing home. She has, in the funds under management by the NSW Trustee, a fund available that can deal with any contingencies that arise in relation to her care.

24. It is in these circumstances that I propose to dismiss the plaintiff’s amended summons filed on 17 February 2022.

25. Of course, the nature of the Court’s inherent jurisdiction is that it cannot exclude the possibility of some further application being made should circumstances change in dealing with the protected person’s welfare, and I do not purport to exclude future consideration of her care arrangements.

26. I have given consideration to whether in dismissing the summons I should also make some form of order in the nature of a guardianship order. I am inclined not to do so, but in circumstances where it might be acknowledged that, should it be necessary for orders to be made effecting the person of the protected person, an appropriate application might be made to the Court or to the Guardianship Division of NCAT for what, in NCAT, are described as guardianship orders and what might here best be described as orders for the appointment of a committee of the person.

27. On the material I have seen, and having heard representations from each side of the debate, I am reasonably confident (and certainly hopeful) that a degree of cooperation will attend the brothers’ engagement with their mother in her nursing home. Should any problems arise, however, help may be at hand in deciding disputes about her accommodation.

28. Accordingly, I make the following orders:

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:

1. the NSW Trustee; and

2. the xxx Care Facility.

6. ORDER that these orders be entered forthwith.

**********

Amendments

09 August 2022 - At [14] the word "has" before "sought" removed

11 August 2022 - Amended references to second defendant.

Decision last updated: 11 August 2022