Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964
Hearing dates:
14 June 2024
Date of orders:
9 August 2024
Decision date:
09 August 2024
Jurisdiction:
Equity - Protective List
Before:
Meek J
Decision:
Appeal allowed.
Catchwords:
PROTECTIVE JURISDICTION — Appeal from Guardianship Division of the NSW Civil and Administrative Tribunal (“Tribunal”) — Appeal from making of financial management order under Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”), Sch 6, cl 14(1)(b) — Appeal limited to questions of law — Appeal allowed
ADMINISTRATIVE LAW — Questions of law — Discussion of meaning within NCAT Act, Sch 6, cl 14(1)(b)
ADMINISTRATIVE LAW — Jurisdictional error — Discussion of requirement of materiality
PROTECTIVE JURISDICTION — Standing to bring application for financial management order under Guardianship Act 1987 (NSW), s 25I(1)(b) — Whether the Tribunal had formed the opinion that the applicant had a “genuine concern” for the welfare of the person the subject of the application (his mother), being a subjective jurisdictional fact — Discussion of meaning of “genuine concern” for the welfare of the person — Whether issue of standing raised — Whether finding on standing was “inherent” in the Tribunal’s reasons — Whether Tribunal’s rejection of summary dismissal application was a finding on standing — Held that issue of standing was raised before the Tribunal and it had not formed the opinion that the applicant had a “genuine concern”
PROTECTIVE JURISDICTION — Grounds for making financial management order — Discussion of test to be applied in determining whether the person is not capable of managing her affairs under Guardianship Act, s 25G(a) — Whether “affairs” include directorship of a family company — Whether test requires the person to be able to “weigh complex information” regarding a significant property and business portfolio managed by the family company, in circumstances where she relies on her daughter (who is a co-director) and her son-in-law to manage those complex financial matters — Discussion of the relevance of assistance from the person’s support system in determining whether the person is capable of managing her affairs — Held that the Tribunal applied the incorrect legal test under s 25G(a)
ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Legal unreasonableness — Discussion of requirements for legal unreasonableness — Whether conclusions of the Tribunal that the person was not capable of managing her own affairs and it was in her best interests for a financial management order to be made lacked an evident and intelligible justification — Held that the Tribunal’s findings on those issues were unreasonable
ADMINISTRATIVE LAW — Procedural fairness — Whether the Tribunal afforded the plaintiff procedural fairness in rejecting evidence from the person’s general practitioner on Makita grounds, in circumstances where no objection was taken to that evidence at the hearing and no issue was raised with the parties — The Tribunal is not obliged to give the parties a “running commentary” of its assessment of…
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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AGLC
Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964
Case
[2024] NSWSC 964
Decision Date
CaseChat Overview and Summary
Julie (a pseudonym) appealed to the Supreme Court of New South Wales against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal, which had made a financial management order in favour of John (a pseudonym). The Tribunal had determined that Julie's mother was not capable of managing her own affairs and that it was in her best interests for a financial management order to be made. Julie argued that the Tribunal had erred in law in making the order, and the appeal was limited to questions of law.
The appeal raised several legal issues, including whether the Tribunal had the standing to make the order, whether it had applied the correct legal test to determine whether Julie's mother was not capable of managing her own affairs, whether the Tribunal's findings were legally unreasonable, and whether the Tribunal had afforded Julie procedural fairness. The appeal also considered whether the Tribunal had taken into account the relevant principles in the Guardianship Act 1987 (NSW).
The court found that the issue of standing had been raised before the Tribunal and that the Tribunal had not formed the opinion that Julie had a "genuine concern" for her mother's welfare. The court also held that the Tribunal had applied the incorrect legal test under the Guardianship Act in determining whether Julie's mother was not capable of managing her own affairs. The court found that the Tribunal's findings on the issues of capacity and best interests were unreasonable and that the Tribunal had not afforded Julie procedural fairness in rejecting evidence from her mother's general practitioner. However, the court held that the Tribunal had taken into account the relevant principles in the Guardianship Act in making its decision.
In conclusion, the appeal was allowed, and the financial management order made by the Tribunal was set aside. The court held that the Tribunal had erred in law in making the order, and the order was quashed. The parties were ordered to bear their own costs of the appeal.