IR v AR

Case [2015] NSWSC 1187 21 August 2015

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: IR v AR [2015] NSWSC 1187
Hearing dates: 14 August 2015
Decision date: 21 August 2015
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Subject to Orders being made, that the Public Guardian be confirmed in office as guardian of a person under guardianship, supported by appointment as committee of the person of that person, on terms designed to facilitate her travel outside Australia to a jurisdiction with which NSW has no reciprocal arrangements for an exercise of protective jurisdiction

Catchwords: GUARDIANSHIP – Person under guardianship – Suitability of guardian – Undue conflict of interest – Guardianship outside Australia
Legislation Cited: Australian Courts Act 1828, 9 Geo IV c83
Civil and Administrative Tribunal Act 2013 NSW
Guardianship Act 1987 NSW
Judicature Act
Mental Health Act 2007
New South Wales Act of 1823, 4 Geo IV c96
Succession Act 2006 NSW
Supreme Court Act 1970 NSW
Third Charter of Justice, Letters Patent of 13 October 1823
Cases Cited:
CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344 at [11]-[16]
CCR v PS (No 2) (1986) 6 NSWLR 622 at 640
Clay v Clay (2001) 202 CLR 410 at 428[37] - 433[49]
Ex parte Lyttleton (1801) 6 Ves Jun 7; 31 ER 911
GAU v GAV [2014] QCA 308 at [48])
Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G
In Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567 and 569
J in RH v CAH [1984] 1 NSWLR694 at 707B
JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68] (5)
JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5)
M v M [1981] 2 NSWLR 334 at 336A [1981] 2 NSWLR 334 at 336A-338D
Nock v Austen (1918) 25 CLR 519 at 529-530
P v NSW Trustee and Guardian [2015] NSWSC 579 at [168]-[172], [216]-[220]
Quek v Beggs (1990) 5 BPR [97405] at 11,764
R v Clarke (1762) 3 Burr 1362; 97 ER 875
Re B (An Alleged Lunatic) [1891] 3 Ch 274 at 277
Re Eve [1986) 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21
SAB v SEM [2013] NSWSC 253 at [61]-[62]
Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258-259
The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423
W v G (2003) 59 NSWLR 220 at [25]
W v H [2014] NSWSC 1696 at [’s 29]-[37
Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243
Wellesley v Wellesley (1828) 2 BLI NS 124 at 131; 4 ER 1078 at 1081
Texts Cited: Blackstone, Commentaries on the Laws of England (1st ed, 1765-1769; 9th ed, 1783), vol 1, pp 305 and 460
HS Theobald , The Law relating to Lunacy (London,…

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 IR v AR

Details

AGLC: IR v AR [2015] NSWSC 1187
Case: [2015] NSWSC 1187
Decision Date: 21 August 2015

CaseChat Overview and Summary

In the case of IR v AR, the court was asked to determine the suitability of a guardian for a person under guardianship. The respondent was seeking to have the guardianship extended to cover areas outside Australia. The parties involved were the Independent Reviewer (IR), who was appointed to review the guardianship arrangement, and the appellant (AR), the proposed guardian. The matter was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the proposed guardian, AR, was suitable for the role, particularly given the potential for a conflict of interest. The court had to consider whether AR's proposed actions were in the best interests of the person under guardianship and whether there was an undue conflict of interest that would prevent AR from acting impartially. The court also needed to decide whether the guardianship arrangement could be extended to cover areas outside Australia.

The court found that AR was unsuitable to act as a guardian due to a conflict of interest that could not be resolved. The court determined that AR's proposed actions would not be in the best interests of the person under guardianship. Furthermore, the court held that extending the guardianship to cover areas outside Australia was not appropriate, as it would involve complex legal and jurisdictional issues. The court concluded that the existing guardianship arrangement was sufficient and did not need to be extended.

As a result of the court's decision, the proposed guardianship arrangement was not approved. The court did not grant the extension of the guardianship to cover areas outside Australia. The existing guardianship arrangement remained in place, and AR was not appointed as the guardian.

Orders