K v Public Guardian of New South Wales

[2003] NSWSC 632

CITATION:	K v Public Guardian of New South Wales [2003] NSWSC 632
HEARING DATE(S):	15 July 2003
JUDGMENT DATE:	15 July 2003
JUDGMENT OF:	Simpson J
DECISION:	Summons dismissed.
CATCHWORDS:	Guardianship Tribunal order
LEGISLATION CITED:	Supreme Court Rules, Part 13 r5 Guardianship Act 1987 (NSW), ss 3F, 9, 14, 57A, 67
PARTIES :	IK - Plaintiff Office of the Public Guardian - Defendant
FILE NUMBER(S):	SC 11617/03
COUNSEL:	Plaintiff - in person Defendant - Ms R Giurastante (sol)
SOLICITORS:	IV Knight - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

15 July 2003

11617/03 IK v Public Guardian of New South Wales

JUDGMENT

1 HER HONOUR: By summons filed on 30 June 2003 the plaintiff, IK, seeks an order that SK be released from the Mona Vale Ocean View Nursing Home; she also seeks a full investigation into SK's care.

2 The plaintiff names the Public Guardian as the defendant to the summons.

3 By notice of motion the defendant, there identified by its correct title as the Office of the Public Guardian, seeks orders in the alternative that the summons be stayed or dismissed generally pursuant to Pt 13 r 5 of the Supreme Court Rules, or that it be struck out pursuant to Pt 15 r 26 thereof.

4 The plaintiff, who has appeared for herself in these proceedings, is the former wife of SK who is the subject of a guardianship order made under s14 of the Guardianship Act 1987 (“the Act”). By s9 of the Act an application for a guardianship order may be made by certain identified individuals: by s14 the Guardianship Tribunal may make such orders. Section 3F of the Act identifies the parties to such a proceeding and, by s57A, the Tribunal is empowered to join others as party to the proceedings. The plaintiff does not belong in any of the categories of persons who are, by s3F, named as parties to guardianship proceedings.

5 On 26 June 1998 SK son, CK, made an application under s9 that SK be made subject of a guardianship order. On 11 August 1998, pursuant to s57A of the Act, the plaintiff was joined as a party to those proceedings. On 17 August 1998 an order was made under s14 with a duration of 12 months. The Tribunal gave reasons for its decision.

6 It seems that within the next 12 months a review of that decision was envisaged and the plaintiff was again joined as a party to the proceedings on 11 August 1999.

7 On 23 August 1999 the review was undertaken and the guardianship order was renewed, with some variations, with a duration of three years from the date the order was made. Again, reasons were given.

8 On 28 August 2002 the Tribunal reviewed the order of 23 August 1999. On this occasion the plaintiff was not joined as a party and, it seems, made no application for that to occur. Again, a guardianship order with a duration of three years from its date was made and reasons were given.

evidence

9 The plaintiff adduced a considerable amount of evidence. In essence she challenges the decision of the Tribunal to make the guardianship order. She wishes to have the care of her former husband at home. She produced evidence from herself and, to some extent from others, that she could and would afford him better care than the facilities in which he is kept. For example, she says that she can speak Hungarian, her former husband's first language, and now his principal language, he having lost much of his capacity in English by reason of the condition with respect to which the guardianship orders were made.

10 It is first necessary to identify the nature of the claims the plaintiff makes. This is not an easy task.

11 S67 of the Act provides for an appeal to this court against a decision under s14 to make a guardianship order. But the right of appeal is limited to parties to proceedings before the Tribunal. The plaintiff was not, in respect of the most recent guardianship order, a party to those proceedings. Further, s67 permits an appeal on a question of law as a right, or an appeal on any other question by leave of this court. No question of law is identified and leave has not been sought to appeal on any other question. (I would not in the circumstances construe the summons too strictly. If the plaintiff identified a question proper for determination on appeal by this court, and if she had standing, I would not prevent her from agitating the question, notwithstanding a technical defect in the summons. But neither of the prerequisites is here met.) I am therefore not able to treat the summons as an appeal under s67 principally because the plaintiff has no standing to bring such an appeal but, in any event, I am unable to discern a question of law which has been raised or, if raised, on which the plaintiff could succeed and I am unable to identify any other question which she should be given leave to argue.

12 There was another matter raised by the defendant and that concerned the timing of the filing of the summons. S67 requires that any appeal be instituted within 28 days after the day on which formal reasons are furnished in respect of the decision, but also envisages an extension of time in appropriate circumstances. The defendant has argued that even if the summons should properly be seen as an appeal, an extension of time should not be granted, it being now eleven months since the decision was made.

13 If other circumstances favoured the plaintiff I would reject this argument. The correspondence shows that the plaintiff has continually sought to terminate the guardianship order. Although it is unnecessary to reach a final view, I would be inclined to consider sympathetically an application for an extension of time. There is no evidence of prejudice to any other party. However, for the reasons I have given, I do not think that the summons can be treated as a s67 appeal and the extension of time question does not arise.

14 The plaintiff has not identified any other power in this court to make the order she seeks. She has addressed herself to what she sees as the merits of the issue, that is who is best equipped to provide the care that her ailing former husband requires. I have attempted to consider any available source of jurisdiction to make orders of the kind sought by the plaintiff but I am unable to identify any such power. In my opinion the summons is misconceived and orders of the kind sought by the defendant should be made.

15 The order I make is that the plaintiff's summons be dismissed pursuant to Pt 13 r 5 of the Supreme Court Rules.

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Last Modified: 08/11/2003