MZT - [2018] NSWCATGD 8

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: MZT [2018] NSWCATGD 8
Hearing dates: 14 February 2018
Date of orders: 14 February 2018
Decision date: 14 February 2018
Jurisdiction: Guardianship Division
Before: L Organ, Senior Member (Legal)
M J Staples, Senior Member (Professional)
K Laurence, General Member (Community)
Decision:
The Tribunal decided that Justice Health and Forensic Mental Health Network has standing to make a guardianship and financial management application.

The Tribunal appointed a separate representative for Mr MZT
Today’s hearing is adjourned to 4 April 2018 at 9.30am.
Catchwords: INTERLOCUTORY – standing – does Justice Health and Forensic Mental Health Network have standing to bring application – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – statutory health corporation – whether Justice Health and Forensic Mental Health Network is a “person”
Legislation Cited: Guardianship Act 1987, ss 9(1)(d)
Health Services Act 1997 (NSW), ss 7(b), 11, 17, 41, 41(2), 41(3), 45
Interpretation Act 1987 (NSW), s 21
Mental Health Act 2007 (NSW), s 68
Mental Health (Forensic Provisions) Act 1990 (NSW) ss 39, 42, 76B
Cases Cited: EBI [2017] NSWCATGD 6
Minister for Disability Services v People with a Disability Inc (CSD) [2010] NSWADTAP 44
NEJ [2017] NSWCATGD 1
QVC [2017] NSWCATGD 20
Texts Cited: NSW Ministry of Health, Forensic Mental Health Services Policy Directive (PD2012-050, NSW Ministry of Health, 4 September 2012)
Category: Principal judgment
Parties:
001: Guardianship Application

Mr MZT (the person)
Justice Health and Forensic Mental Health Network (applicant)
NSW Public Guardian (proposed guardian)

002: Financial Management Application
Mr MZT (the person)
Justice Health and Forensic Mental Health Network (applicant)
NSW Trustee and Guardian
Representation: Legal representation:
P Csendertis (Justice Health and Forensic Mental Health Network)

File Number(s): NCAT 2017/00358966
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

What the Tribunal decided

The Tribunal determined that Justice Health and Forensic Mental Health Network has standing to apply for guardianship and financial management orders in relation to Mr MZT.
The Tribunal determined that Mr MZT be separately represented in the proceedings before the Tribunal.
The Tribunal adjourned the hearing of the applications by Justice Health and Forensic Mental Health Network for the appointment of a guardian and financial manager for Mr MZT to 4 April 2018 at 9:30am.

Background

Mr MZT is a 33-year-old man who is an inpatient at the Forensic Hospital in South-eastern Sydney. He is currently a forensic patient having been found not guilty of a crime by reason of mental illness pursuant to s 39 and s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW).
Mr MZT is reported to have an intellectual disability and neurofibromatosis. He is also reported to have…

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 MZT

Details

AGLC: MZT [2018] NSWCATGD 8
Case: [2018] NSWCATGD 8
Decision Date: 14 February 2018

CaseChat Overview and Summary

The parties involved in this matter are Mr MZT and the Justice Health and Forensic Mental Health Network. The dispute concerns whether the Justice Health and Forensic Mental Health Network has the requisite standing to bring an application under the Guardianship Act 1987 (NSW). The matter was heard in the NCAT Civil and Administrative Tribunal (NCAT). The legal issues that the Tribunal needed to address were whether the Justice Health and Forensic Mental Health Network had a genuine concern for the welfare of Mr MZT, as required by s 9(1)(d) of the Guardianship Act 1987 (NSW), and whether the Justice Health and Forensic Mental Health Network is a "person" for the purposes of s 21 of the Interpretation Act 1987 (NSW). The Tribunal determined that the Justice Health and Forensic Mental Health Network did have standing to bring an application on behalf of Mr MZT, and thus, had the necessary standing to proceed with the application. The Tribunal found that the Justice Health and Forensic Mental Health Network had a genuine concern for Mr MZT's welfare, which was sufficient to satisfy the requirements of s 9(1)(d) of the Guardianship Act 1987 (NSW). The Tribunal also found that the Justice Health and Forensic Mental Health Network qualified as a "person" for the purposes of s 21 of the Interpretation Act 1987 (NSW). The Tribunal therefore concluded that the Justice Health and Forensic Mental Health Network had the requisite standing to bring the application on behalf of Mr MZT.

The orders made by the Tribunal included that the Justice Health and Forensic Mental Health Network has the standing to make a guardianship and financial management application on behalf of Mr MZT. The Tribunal also appointed a separate representative for Mr MZT and adjourned the hearing to a later date.

Orders

Orders of the court

The Tribunal decided that Justice Health and Forensic Mental Health Network has standing to make a guardianship and financial management application.

The Tribunal appointed a separate representative for Mr MZT

Today’s hearing is adjourned to 4 April 2018 at 9.30am.

Background

Background to the litigation

Full text does not contain this section.

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:	MZT [2018] NSWCATGD 8
Hearing dates:	14 February 2018
Date of orders:	14 February 2018
Decision date:	14 February 2018
Jurisdiction:	Guardianship Division
Before:	L Organ, Senior Member (Legal) M J Staples, Senior Member (Professional) K Laurence, General Member (Community)
Decision:	The Tribunal decided that Justice Health and Forensic Mental Health Network has standing to make a guardianship and financial management application. The Tribunal appointed a separate representative for Mr MZT Today’s hearing is adjourned to 4 April 2018 at 9.30am.
Catchwords:	INTERLOCUTORY – standing – does Justice Health and Forensic Mental Health Network have standing to bring application – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – statutory health corporation – whether Justice Health and Forensic Mental Health Network is a “person”
Legislation Cited:	Guardianship Act 1987, ss 9(1)(d) Health Services Act 1997 (NSW), ss 7(b), 11, 17, 41, 41(2), 41(3), 45 Interpretation Act 1987 (NSW), s 21 Mental Health Act 2007 (NSW), s 68 Mental Health (Forensic Provisions) Act 1990 (NSW) ss 39, 42, 76B
Cases Cited:	EBI [2017] NSWCATGD 6 Minister for Disability Services v People with a Disability Inc (CSD) [2010] NSWADTAP 44 NEJ [2017] NSWCATGD 1 QVC [2017] NSWCATGD 20
Texts Cited:	NSW Ministry of Health, Forensic Mental Health Services Policy Directive (PD2012-050, NSW Ministry of Health, 4 September 2012)
Category:	Principal judgment
Parties:	001: Guardianship Application Mr MZT (the person) Justice Health and Forensic Mental Health Network (applicant) NSW Public Guardian (proposed guardian) 002: Financial Management Application Mr MZT (the person) Justice Health and Forensic Mental Health Network (applicant) NSW Trustee and Guardian
Representation:	Legal representation: P Csendertis (Justice Health and Forensic Mental Health Network)
File Number(s):	NCAT 2017/00358966
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)).