Julie (a pseudonym) v John (a pseudonym) (No 2) - [2025] NSWSC 588

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Julie (a pseudonym) v John (a pseudonym) (No 2) [2025] NSWSC 588
Hearing dates: 8 May 2025
Date of orders: 8 May 2025
Decision date: 10 June 2025
Jurisdiction: Equity - Protective List
Before: Meek J
Decision:
Application by the first defendant for a financial management order in respect of the third defendant dismissed with costs.

Catchwords:
FINANCIAL MANAGEMENT ORDERS — New hearing consequent upon orders allowing an appeal of financial management orders of the Guardianship Division of the NSW Civil and Administrative Tribunal under the Guardianship Act 1987 (NSW)
PROTECTIVE JURISDICTION — Evidence — New hearing — In the exercise of its protective jurisdiction the Court is not necessarily bound by strict rules of evidence but, subject to or with due regard to considerations of procedural fairness, has a discretion to act on material which is rationally probative of material facts and issues, even though excluded by technical rules of evidence
PROTECTIVE JURISDICTION — New hearing — Application for financial management orders — Repeated impermissible correspondence by applicant (first defendant) to Judge’s chambers email disclosed actuating purposes in respect of the new hearing which were very remote from the purported purpose of whether the third defendant was incapable of managing her affairs — Case management directions to achieve procedural fairness required service of affidavit material by the parties for the new hearing and relevantly by the applicant before mid-December 2024 — In early February 2025 the new hearing of the application was fixed to take place in early May 2025 — Applicant in early March 2024 provided certain “witness statements” rather than affidavits — That material was not rationally probative and not permitted to be relied upon — No subsequent application was made by the applicant, prior to the hearing, to be permitted to rely upon oral evidence (nor other materials) on the hearing — At the listed hearing the applicant had not served affidavit evidence, had travelled to China and sought to be permitted to conduct the hearing by AVL from China and contemplated that oral evidence would be called from two witnesses who had not been subpoenaed to attend to give any such evidence — That request was refused (in light of above context and prejudice to the active respondent) and the application for financial management order dismissed
FINANCIAL MANAGEMENT ORDERS — Permissible purposes — A financial management order, per se, is not a vehicle for commandeering and otherwise realising and dividing family wealth by reference to purported intentions of the deceased family members or otherwise than in accordance with the principles that properly inform the jurisdiction to make a financial management order
CIVIL PROCEDURE — Dismissal of proceedings — Civil Procedure Act 2005 (NSW) s 61(3)(a) — Failure to comply with case management orders
PRACTICE AND PROCEDURE — Principles regarding email communications with Judge’s chambers — Approach with self-represented litigants
HEARINGS — Mode of appearance at hearing —Proceedings in Supreme Court are generally held in person…

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: [2025] NSWSC 588
Decision Date: 10 June 2025

CaseChat Overview and Summary

Julie, a pseudonym, brought proceedings against John, another pseudonym, seeking financial management orders under the Guardianship Act 1987 (NSW). This followed an appeal against orders of the Guardianship Division of the NSW Civil and Administrative Tribunal. Julie's application sought a financial management order for her sister, who was the third defendant, on the basis that she was incapable of managing her own affairs. The proceedings came before the Supreme Court, which exercised its protective jurisdiction to consider the application.

The court needed to decide several legal issues, including whether the applicant's repeated correspondence with the judge's chambers was relevant to the application, whether the court could act on material that was not strictly admissible under the rules of evidence, and whether the applicant's failure to comply with case management orders justified dismissal of the proceedings. Another issue was whether the applicant could conduct the hearing via audio-visual link from China and call oral evidence from witnesses who had not been subpoenaed.

The court found that the applicant's correspondence revealed actuating purposes that were unrelated to the application's purpose. The court exercised its discretion under its protective jurisdiction to act on material that was rationally probative of the material facts and issues, even though it was excluded by the technical rules of evidence. The applicant failed to comply with case management orders, including providing affidavit material before the specified deadline, and did not seek leave to rely on oral evidence or other materials at the hearing. The applicant's request to conduct the hearing via audio-visual link from China was denied due to the lack of compliance with procedural fairness and the prejudice to the respondent. The application for a financial management order was dismissed.

The court made no order as to costs.

Orders