HWS

Case [2016] NSWCATGD 32 22 June 2016

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NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: HWS [2016] NSWCATGD 32
Hearing dates: 22 June 2016
Date of orders: 22 June 2016
Decision date: 22 June 2016
Jurisdiction: Guardianship Division
Before: G Moin, Senior Member (Legal)
B McPhee, Senior Member (Professional)
M Williams, General Member (Community)
Decision:
Guardianship order; guardianship order made for 1 month with advocacy functions.
Financial management; private manager appointed on an interim basis for one month.
Catchwords:
GUARDIANSHIP – application for guardianship orders –previous finding that subject person has disability which affects decision making – where subject person is overseas – discussion on extraterritorial jurisdiction– hearing continued despite subject person absent from hearing – family member appointed as guardian
FINANCIAL MANAGEMENT – need for a financial management order – vulnerability to exploitation or self-mismanagement – interim financial management order – private manager appointed
Legislation Cited: Civil and Administrative Tribunal Act (NSW), s 38(5)
Domicile Act 1979 (NSW), s 7
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 4(a), 4(e), 4(g), 14, 14(2), 15(3), 17(1), 25G, 25H, 25M
Interpretation Act 1987 (NSW), s 12
Cases Cited: Application by AMAM; Re SAM [2011] NSWSC 503
C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep)
CJ v AKJ [2015] NSWSC 498
Holt v Protective Commissioner (1993) 31 NSWLR 227
IF v IG [2004] NSWADTAP 3
JAK [2007] NSWGT 23 (31 October 2007)
Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309
KDT [2010] NSWGT 5 (20 January 2010)
Kioa v West [1985] 159 CLR 550
M v M [2013] NSWSC 1495
McD v McD (1983) 3 NSWLR 81
Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1
NGM [2011] NSWGT 7 (11 March 2011))
P v D1 [2011] NSWSC 257
P v NSW Trustee and Guardian [2015] NSWSC 579
P v R [2003] NSWSC 819
PB v BB [2013] NSWSC 1223
Re B [2011] NSWSC 1075
Re D [2012] NSWSC 1006
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited: Pearce and Geddes, Statutory Interpretation in Australia, 4th Ed 1996, Butterworths
Category: Principal judgment
Parties: Mr HWS (subject person)
Mr NBT (applicant)
NSW Public Guardian
NSW Trustee and Guardian
Representation: Nil

File Number(s): 58326
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

WHAT THE TRIBUNAL DECIDED

The Tribunal appointed Mr NBT as Mr HWS’s guardian for a period of one month to advocate on his behalf as set out in the Tribunal’s order.
The Tribunal appointed Mr NBT as Mr HWS's financial manager, on an interim basis for a period of one month.

BACKGROUND

Mr HWS is an 87-year old man who lives in his own home which he jointly owns with his two sons, Mr NBT…

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

AGLC: HWS [2016] NSWCATGD 32
Case: [2016] NSWCATGD 32
Decision Date: 22 June 2016

CaseChat Overview and Summary

The case of HWS involved an application for guardianship orders concerning a subject person who had previously been found to have a disability affecting their decision-making abilities. The subject person was overseas at the time of the hearing, leading to a discussion on the court's extraterritorial jurisdiction. Despite the subject person's absence, the hearing proceeded, and a family member was appointed as the guardian. The court also considered the need for a financial management order due to the subject person's vulnerability to exploitation or self-mismanagement, ultimately issuing an interim financial management order with a private manager appointed for a month.

The legal issues the court needed to address included whether it had the jurisdiction to make guardianship orders over a subject person located outside Australia and whether it was appropriate to continue with the hearing in the absence of the subject person. Additionally, the court had to determine whether a financial management order was necessary to protect the subject person from exploitation or mismanagement of their finances.

In resolving these issues, the court found that it had the jurisdiction to make the guardianship orders despite the subject person being overseas. The court proceeded with the hearing, acknowledging the importance of ensuring the subject person's best interests were protected. The court appointed a family member as the guardian, recognising their suitability and willingness to act in the subject person's best interests. Regarding financial management, the court found that a financial management order was necessary to protect the subject person from potential exploitation or mismanagement, leading to the appointment of a private manager on an interim basis.

The final orders included a guardianship order made for one month with advocacy functions and an interim financial management order appointing a private manager for the same duration. This decision ensures that the subject person's care and financial affairs are managed appropriately during this critical period.

Orders

Orders of the court

Guardianship order; guardianship order made for 1 month with advocacy functions.

Financial management; private manager appointed on an interim basis for one month.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

HWS [2016] NSWCATGD 32

Cases Citing This Decision

No citing cases yet.

Cases Cited

P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 1 (Para 92)

…The test for determining a person's capability to manage his or her affairs has been described as follows ( P v NSW Trustee and Guardian [2015] NSWSC 579, [307]-[308]):…
CJ v AKJ [2015] NSWSC 498
Citation 2

…S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 JAK [2007] NSWGT 23 (31 October 2007) Jumbunna Coal Mine v Victorian Coal Miners’ Associatio…
Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Citation 3 (Para 94)

…reasonably foreseeable future ( McD v McD (1983) 3 NSWLR 81 at [86]). See Lindsay J in Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]:…
M v M [2013] NSWSC 1495
Citation 4 (Para 110)

…financial manager, as established in Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227, are discussed and expanded upon by Lindsay J in M v M [2013] NSWSC 1495 at [50].…
PB v BB [2013] NSWSC 1223
Citation 5 (Para 91)

…In PB v BB [2013] NSWSC 1223, Lindsay J confirmed that the question focuses attention on the special circumstances of the person. His Honour stated, at [7]:…
Re D [2012] NSWSC 1006
Citation 6 (Para 90)

…In Re D [2012] NSWSC 1006, White J assessed the history of case law in relation to financial management and noted that initially the issue of capability was approached by referring to hypothetical or abstract notions of the ordinary affairs of man. However, the Court now assesses the person’s own capacity to do what…
Re B [2011] NSWSC 1075
Citation 7 (Para 74)

…uardianship Act ( C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) and Re B [2011] NSWSC 1075, [66]).…
Re Sam [2011] NSWSC 503
Citation 8 (Para 106)

…In Application by AMAM; Re SAM [2011] NSWSC 503, Hallen AsJ stated:…
P v D1 & Ors [2011] NSWSC 257
Citation 9 (Para 75)

…In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.…
IF v IG [2004] NSWADTAP 3
Citation 10 (Para 50)

…ters in s 14(2). When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Guardianship Act (see IF v IG [2004] NSWADTAP 3).…
W v G [2003] NSWSC 1170
Citation 11

…able and responsible, but that the appointment will result in the policy considerations and principles set forth in the Act being given effect (W v G [2003] NSWSC 1170, [25]).…
P v R [2003] NSWSC 819
Citation 12 (Para 90)

…l appreciation” of assets test to determine a person’s capability to manage his or her affairs. He adopts the reasoning of Barrett J in P v R [2003] NSWSC 819 who said that the task of the Court in these circumstances:…
Mobil Oil Australia Pty Ltd v Victoria [2002] HCA 27
Citation 13 (Para 26)

…In Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1, Gaudron, Gummow and Hayne JJ stated at footnote 145:…
EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501
Citation 14 (Para 24)

…Young considered whether the Guardianship Act applied to persons physically outside of NSW in EMG v Guardianship and Administration Board of Victoria [1999] NSWSC 501. His Honour noted that the Guardianship Act does not define the persons who are subject to its operation. However, His Honour did not determine concl…
Kioa v West [1985] HCA 81
Citation 15 (Para 37)

…decision affecting their interests. The obligation is flexible and depends, among other things, on the statutory context: Kioa v West [1985] 159 CLR 550 per Mason J at 585.…
Jumbunna Coal Mine NL v Victorian Coal Miners' Association [1908] HCA 95
Citation 16 (Para 25)

…the common law presumption against the extraterritorial operation of State legislation (see Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 per O’Connor J at 363. See also s 12 of the Interpretation Act 1987 (NSW)). However, the presumption is rebuttable.…
Holt v Protective Commissioner 38 ER 774
Citation 17

…uardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 JAK [2007] NSWGT 23 (31 October 2007) Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 KDT [2010] NSWGT 5…

Legislation Cited

Guardianship Act 1987 (NSW) 14, 14(2), 15(3), 17(1), 2, 25G, 25H, 3(...
14 mentions (from Para 10)
Civil and Administrative Tribunal Act 2013 (NSW) 38(5)
2 mentions (from Para 37)
Domicile Act 1979 (NT) 7
2 mentions (from Para 17)
Interpretation Act 1987 (NSW) 12
2 mentions (from Para 25)
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	HWS [2016] NSWCATGD 32
Hearing dates:	22 June 2016
Date of orders:	22 June 2016
Decision date:	22 June 2016
Jurisdiction:	Guardianship Division
Before:	G Moin, Senior Member (Legal) B McPhee, Senior Member (Professional) M Williams, General Member (Community)
Decision:	Guardianship order; guardianship order made for 1 month with advocacy functions. Financial management; private manager appointed on an interim basis for one month.
Catchwords:	GUARDIANSHIP – application for guardianship orders –previous finding that subject person has disability which affects decision making – where subject person is overseas – discussion on extraterritorial jurisdiction– hearing continued despite subject person absent from hearing – family member appointed as guardian FINANCIAL MANAGEMENT – need for a financial management order – vulnerability to exploitation or self-mismanagement – interim financial management order – private manager appointed
Legislation Cited:	Civil and Administrative Tribunal Act (NSW), s 38(5) Domicile Act 1979 (NSW), s 7 Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 4(a), 4(e), 4(g), 14, 14(2), 15(3), 17(1), 25G, 25H, 25M Interpretation Act 1987 (NSW), s 12
Cases Cited:	Application by AMAM; Re SAM [2011] NSWSC 503 C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep) CJ v AKJ [2015] NSWSC 498 Holt v Protective Commissioner (1993) 31 NSWLR 227 IF v IG [2004] NSWADTAP 3 JAK [2007] NSWGT 23 (31 October 2007) Jumbunna Coal Mine v Victorian Coal Miners’ Association (1908) 6 CLR 309 KDT [2010] NSWGT 5 (20 January 2010) Kioa v West [1985] 159 CLR 550 M v M [2013] NSWSC 1495 McD v McD (1983) 3 NSWLR 81 Mobil Oil Australia Pty Limited v Victoria (2002) 211 CLR 1 NGM [2011] NSWGT 7 (11 March 2011)) P v D1 [2011] NSWSC 257 P v NSW Trustee and Guardian [2015] NSWSC 579 P v R [2003] NSWSC 819 PB v BB [2013] NSWSC 1223 Re B [2011] NSWSC 1075 Re D [2012] NSWSC 1006 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106
Texts Cited:	Pearce and Geddes, Statutory Interpretation in Australia, 4th Ed 1996, Butterworths
Category:	Principal judgment
Parties:	Mr HWS (subject person) Mr NBT (applicant) NSW Public Guardian NSW Trustee and Guardian
Representation:	Nil
File Number(s):	58326
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).