GX v NSW Trustee and Guardian - [2018] NSWSC 1180

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: GX v NSW Trustee and Guardian [2018] NSWSC 1180
Hearing dates: 3, 22, 23 & 31 August, 24 October and 21 November 2017
Date of orders: 03 August 2018
Decision date: 04 August 2018
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff’s application for an order for revocation of the protected estate management orders made against her is refused.

Catchwords: GUARDIANSHIP – protected person – protected estate management orders in place in respect of the protected person who brings these proceedings – the plaintiff seeks the revocation of the existing protected estate management orders – the plaintiff is self-represented – whether the plaintiff is capable of managing her affairs.
Legislation Cited: NSW Trustee and Guardian Act 2009, ss 41 and 86
Vexatious Proceedings Act 2008
Cases Cited: P v R [2003] NSWSC 819
P v NSW Trustee and Guardian [2015] NSWSC 579
Category: Principal judgment
Parties: Plaintiff: GX
Defendant: NSW Trustee and Guardian
Representation:
Solicitors
Plaintiff: in person
Defendant: R. Sawtell

File Number(s): (2016/238747)
Publication restriction: No

Judgment

The plaintiff is a protected person by virtue of orders made in this Court’s Equity Division Protective List (Proceedings No. 29 of 2001) on 9 September 2003: P v R [2003] NSWSC 819, Barrett J.
The plaintiff now seeks in these proceedings (2016/238747) to revoke the protected estate management orders affecting her. This judgment decides the question against the plaintiff, and concludes that those orders should not be revoked.
The plaintiff appeared for herself throughout the proceedings. The Court dispensed with much of the Uniform Civil Procedure Rules2005 (“UCPR”) which requires a protected person such as the plaintiff only to appear by a tutor. However, it was apparent that no tutor could be found for her to conduct these proceedings. If the Court had not dispensed with the rules, she would not have had the opportunity to present her case in person. This procedure is not uncommonly permitted by the Court on such applications in the protective list: P v NSW Trustee and Guardian [2015] NSWSC 579, Lindsay J.
Ms Rachel Sawtell, solicitor, appeared for the defendant, the NSW Trustee and Guardian (“NSWTG”) throughout the proceedings. Ms Sawtell provided considerable assistance to the Court so that the plaintiff’s application could be presented to its best advantage. The NSWTG neither consents to nor opposes the plaintiff’s application for revocation of the protected estate management orders.
Simply put, the plaintiff contends in her case that she is now capable of managing her affairs and that the existing order should be revoked. She says that she can do her own banking, manage her own money, pay her own bills and should be permitted to manage her own financial affairs. She deeply resents the control over her life by the NSWTG which she wishes to throw off by having Barrett J’s orders revoked. She says she does, in fact, manage some smaller amounts of money from her pension, which is proof that…

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: [2018] NSWSC 1180
Decision Date: 04 August 2018

CaseChat Overview and Summary

GX brought proceedings against the NSW Trustee and Guardian seeking the revocation of existing protected estate management orders in place in respect of her. The plaintiff, who was self-represented, contended that she was capable of managing her own affairs. The court was required to determine whether the plaintiff met the legal threshold for managing her own affairs and, if so, whether this justified the revocation of the existing management orders.

The court considered the statutory framework governing the management of protected estates and the criteria for appointing a manager. It evaluated the evidence presented by the plaintiff regarding her capacity to manage her own affairs. The court noted that the burden of proving capacity lay with the plaintiff and that she needed to demonstrate a sufficient understanding of her financial affairs and the ability to make informed decisions. The court carefully assessed the plaintiff's submissions and evidence, weighing her claims against the existing findings and orders.

Ultimately, the court found that the plaintiff had not demonstrated that she was capable of managing her own affairs to the requisite standard. The evidence presented did not sufficiently rebut the existing findings that the plaintiff required a manager for her estate. Consequently, the court dismissed the plaintiff's application for the revocation of the existing management orders. The orders remained in place, ensuring that the plaintiff's estate was managed appropriately.

The court made no further orders beyond dismissing the application for the revocation of the existing protected estate management orders.

Orders