MQN - [2017] NSWCATGD 9

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MQN [2017] NSWCATGD 9
Hearing dates: 4 May 2017
Date of orders: 04 May 2017
Decision date: 04 May 2017
Jurisdiction: Guardianship Division
Before: A Boxall, Senior Member (Legal)
Decision:
Request to transfer proceedings to Supreme Court
1. The Tribunal dismissed, by consent, the application to refer Guardianship Application 2017/420 to the Supreme Court of New South Wales.
2. The Tribunal reserved its decision on the applications to refer Financial Management Application 2017/421 and Application for Review of an Enduring Power of Attorney 2017/422 to the Supreme Court of New South Wales.
Legal Representation
1. The Tribunal grants leave for Ms NZG and Ms MBL to be represented by Mr P Blackburn-Hart S.C., an Australian legal practitioner, in proceedings 2017/1738 before the Tribunal concerning an application for the referral of proceedings 2017/420, 2017/421 and 2017/422 to the Supreme Court of New South Wales.
Catchwords:
ANCILLARY – request to transfer proceedings to Supreme Court under s 25L of the Guardianship Act – jurisdiction – authority to transfer – request to transfer review of enduring power of attorney, guardianship and financial management applications refused
INTERLOCUTORY – application for legal representation – application granted
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 45, 54, 60
Guardianship Act 1987 (NSW), ss 4, 4(a), 25I, 25K(1), 25L, ; pt 3A
NSW Trustee and Guardian Act 2009 (NSW)
Powers of Attorney Act (NSW), ss 19, 34, 34(2), 35(1), 36, 36(4)(g); div 4 of pt 5
Cases Cited: Bovaird v Bovaird [2007] NSWSC 146
Szoda v Szoda [2010] NSWSC 804
Category: Principal judgment
Parties: Mrs MQN (subject person)
Ms NZG (applicant)
Mr DVN (son and power of attorney)
The NSW Trustee and Guardian
The NSW Public Guardian
Representation: Legal Representation:
T Alexis S.C. (Mr DVN)
P Blackburn-Hart S.C. (Ms NZG and Mrs MBL)

File Number(s): 64698
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

Introduction and summary decision

These reasons concern an application (the Transfer Application) made by Mr DVN for the Tribunal to consent to the transfer to the Supreme Court of New South Wales of three applications concerning Mrs MQN made to the Tribunal by Ms NZG.
In summary, for the reasons outlined below, I have dismissed the Transfer Application in relation to all three substantive applications.

Background

Mrs MQN is 87 years old, and a permanent resident at an aged care facility in northern Sydney, NSW. She has three children: Mr DVN, Ms NZG, and Mrs MBL. It was common ground between Mrs MQN’s children that her cognition is severely impaired, so that she would not be able either to follow or usefully contribute to the hearing on 4 May 2017 of the Transfer Application. This position was not inconsistent with a brief, hand-written…

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 MQN

Details

AGLC: MQN [2017] NSWCATGD 9
Case: [2017] NSWCATGD 9
Decision Date: 04 May 2017

CaseChat Overview and Summary

The matter before the New South Wales Civil and Administrative Tribunal (NCAT) involved an application by Ms NZG and Ms MBL to transfer proceedings concerning a review of an enduring power of attorney and applications for guardianship and financial management to the Supreme Court of New South Wales. The parties had filed separate applications under section 25L of the Guardianship Act 1987 to transfer the proceedings, and Ms NZG and Ms MBL also applied for legal representation in the proceedings.

The legal issues before the Tribunal were whether it had the authority to transfer the proceedings to the Supreme Court and whether the applications for legal representation should be granted. The Tribunal had to determine if the applications for transfer were within its jurisdiction and whether it was appropriate to allow the transfer, as well as whether the applicants were entitled to legal representation in the proceedings.

The Tribunal dismissed the application to transfer the review of the enduring power of attorney to the Supreme Court, as it found that the application did not meet the criteria for transfer. The Tribunal reserved its decision on the applications to transfer the guardianship and financial management applications. The Tribunal granted the application for legal representation, finding that it was appropriate for Ms NZG and Ms MBL to be represented by Mr P Blackburn-Hart S.C. in the proceedings.

The Tribunal made orders dismissing the application to transfer the review of the enduring power of attorney and granting leave for Ms NZG and Ms MBL to be represented by Mr P Blackburn-Hart S.C. in the proceedings. The decision on the applications to transfer the guardianship and financial management applications was reserved.

Orders

Orders of the court

Request to transfer proceedings to Supreme Court

1. The Tribunal dismissed, by consent, the application to refer Guardianship Application 2017/420 to the Supreme Court of New South Wales.

2. The Tribunal reserved its decision on the applications to refer Financial Management Application 2017/421 and Application for Review of an Enduring Power of Attorney 2017/422 to the Supreme Court of New South Wales.

Legal Representation

1. The Tribunal grants leave for Ms NZG and Ms MBL to be represented by Mr P Blackburn-Hart S.C., an Australian legal practitioner, in proceedings 2017/1738 before the Tribunal concerning an application for the referral of proceedings 2017/420, 2017/421 and 2017/422 to the Supreme Court of New South Wales.

Background

Background to the litigation

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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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Medium Neutral Citation:	MQN [2017] NSWCATGD 9
Hearing dates:	4 May 2017
Date of orders:	04 May 2017
Decision date:	04 May 2017
Jurisdiction:	Guardianship Division
Before:	A Boxall, Senior Member (Legal)
Decision:	Request to transfer proceedings to Supreme Court 1. The Tribunal dismissed, by consent, the application to refer Guardianship Application 2017/420 to the Supreme Court of New South Wales. 2. The Tribunal reserved its decision on the applications to refer Financial Management Application 2017/421 and Application for Review of an Enduring Power of Attorney 2017/422 to the Supreme Court of New South Wales. Legal Representation 1. The Tribunal grants leave for Ms NZG and Ms MBL to be represented by Mr P Blackburn-Hart S.C., an Australian legal practitioner, in proceedings 2017/1738 before the Tribunal concerning an application for the referral of proceedings 2017/420, 2017/421 and 2017/422 to the Supreme Court of New South Wales.
Catchwords:	ANCILLARY – request to transfer proceedings to Supreme Court under s 25L of the Guardianship Act – jurisdiction – authority to transfer – request to transfer review of enduring power of attorney, guardianship and financial management applications refused INTERLOCUTORY – application for legal representation – application granted
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 38, 45, 54, 60 Guardianship Act 1987 (NSW), ss 4, 4(a), 25I, 25K(1), 25L, ; pt 3A NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act (NSW), ss 19, 34, 34(2), 35(1), 36, 36(4)(g); div 4 of pt 5
Cases Cited:	Bovaird v Bovaird [2007] NSWSC 146 Szoda v Szoda [2010] NSWSC 804
Category:	Principal judgment
Parties:	Mrs MQN (subject person) Ms NZG (applicant) Mr DVN (son and power of attorney) The NSW Trustee and Guardian The NSW Public Guardian
Representation:	Legal Representation: T Alexis S.C. (Mr DVN) P Blackburn-Hart S.C. (Ms NZG and Mrs MBL)
File Number(s):	64698
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)).