NEJ

Case [2017] NSWCATGD 1 27 January 2017

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NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: NEJ [2017] NSWCATGD 1
Hearing dates: 27 January 2017
Date of orders: 27 January 2017
Decision date: 27 January 2017
Jurisdiction: Guardianship Division
Before: J Moir, Senior Member (Legal)
W Blaxland, Senior Member (Professional)
J Green, General Member (Community)
Decision:
1. A guardianship order is made for Ms NEJ.
2. Mr KAJ, Ms SBJ and Mr TCJ are appointed as the joint guardians.
3. This is a continuing guardianship order for a period of 9 months from the date of this order.
4. This order will not be reviewed at the end of the above period.
5. This is a limited guardianship order giving the guardian custody of Ms NEJ to the extent necessary to carry out the functions below.

Catchwords:
GUARDIANSHIP – person in need of a guardian – need for accommodation and services function – limited non-reviewable order in best interests – private guardians appointed
INTERLOCUTORY – standing – whether a Local Health District has standing to apply for a guardianship order – 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) – whether a Local Health District is a “person”
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 29
Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 9(1)(d), 9(2), 14, 14(2), 17(1)
Health Services Act 1997 (NSW), ss 8(2), 9, 10, 17, 22
Interpretation Act 1987 (NSW), ss 5(2), 21
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep
IF v IG [2004] NSWADTAP 3
Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44
CJH v Department of Family and Community Services [2016] NSWCATAD 162
P v D1 [2011] NSWSC 257
Re B [2011] NSWSC 1075
TC v Public Guardian [2006] NSWADTAP 15
Texts Cited: Ministry of Health - System Relationships and Frameworks, The Guardianship Application Process for Adult Inpatients of NSW Health Facilities, (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016).
Category: Principal judgment
Parties: Ms NEJ (subject person)
South Western Sydney Local Health District (applicant)
The NSW Public Guardian
Representation: Nil

File Number(s): 64638
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

GUARDIANSHIP APPLICATION

What the Tribunal decided

The Tribunal appointed Mr KAJ, Ms SBJ, and Mr TCJ jointly as Ms NEJ’s guardians for a period of nine months to make decisions about her accommodation and services which she should receive as set out in the Tribunal’s order.

Background

Ms NEJ is a 68-year-old divorced woman who has been an inpatient at a public hospital…

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

AGLC: NEJ [2017] NSWCATGD 1
Case: [2017] NSWCATGD 1
Decision Date: 27 January 2017

CaseChat Overview and Summary

In the matter of Ms NEJ, the Local Health District applied for a guardianship order due to concerns about her capacity to manage her own affairs. The case was heard in the Supreme Court of New South Wales, where the court had to determine the eligibility of the Local Health District to apply for such an order, the scope of guardianship functions, and the suitability of the proposed guardians. The court needed to examine the statutory criteria for guardianship under the Guardianship Act 1987 (NSW), particularly the requirement for a "genuine concern for the welfare of the person," as well as the broader interpretation of who may be considered a "person" under the Interpretation Act 1987 (NSW).

The court addressed whether the Local Health District, as an entity, could be deemed to have standing to apply for a guardianship order, interpreting section 9(1)(d) of the Guardianship Act. It was necessary to determine if the Local Health District's concern for Ms NEJ's welfare qualified as "genuine" and if it met the threshold for initiating such proceedings. Furthermore, the court considered whether the Local Health District could be classified as a "person" under section 21 of the Interpretation Act, which would grant it the capacity to act in the interests of the person in need of a guardian.

The court found that the Local Health District did indeed have standing to apply for a guardianship order, given its genuine concern for Ms NEJ's welfare. The court concluded that the proposed guardians, Mr KAJ, Ms SBJ, and Mr TCJ, were suitable for the role. The order made was a limited guardianship order, allowing the guardians to exercise necessary functions to ensure Ms NEJ's accommodation and services. The order was set to last for nine months and would not be subject to review at the end of this period, reflecting the court's assessment of the situation's stability and the guardians' capability to manage Ms NEJ's affairs effectively.

Orders

Orders of the court

1. A guardianship order is made for Ms NEJ.

2. Mr KAJ, Ms SBJ and Mr TCJ are appointed as the joint guardians.

3. This is a continuing guardianship order for a period of 9 months from the date of this order.

4. This order will not be reviewed at the end of the above period.

5. This is a limited guardianship order giving the guardian custody of Ms NEJ to the extent necessary to carry out the functions below.

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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Citations

NEJ [2017] NSWCATGD 1

Most Recent Citation

EBI [2017] NSWCATGD 6

Cases Citing This Decision

KGN [2024] NSWCATGD 23
Citation 1 (Para 12)

…has determined that certain other corporate entities providing health care have standing to bring applications under the Act. (see, for example, NEJ [2017] NSWCATGD 1, EBI [2017] NSWCATGD 6 and CZX [2020] NSWCATGD 29).…
CZX [2020] NSWCATGD 29
Citation 2 (Para 6)

…as to the welfare of the person, the Tribunal has previously examined the organisation’s constituent documents, and its objects and functions: NEJ [2017] NSWCATGD 1, [23] ; EBI [2017] NSWCATGD 6, [22]-[31].…
MZI [2020] NSWCATGD 75
Citation 3 (Para 22)

…ncial management order because the Illawarra Shoalhaven Local Health District is able to and does have a genuine interest in MZI’s welfare (see NEJ [2017] NSWCATGD 1 (27 January 2017).…
MZU [2020] NSWCATGD 14
Citation 4 (Para 10)

…In the case of NEJ [2017] NSWCATGD 1 this Tribunal considered the standing of a local health district (LHD) to make an application for guardianship for a person who was an inpatient in hospital.…
EC v Secretary, NSW Department of Family and Community Services [2019] NSWSC 226
Citation 5 (Para 70)

…In NEJ [2017] NSWCATGD 1, the Guardianship Division of the Tribunal found the statutory functions and purpose of a particular Local Health District provided the basis for finding that it had a genuine interest in NEJ’s welfare. In EBI [2017] NSWCATGD 6, the NSW Civil and Administrative Tribunal found that operating…
QXB [2018] NSWCATGD 18
Citation 6

…and suffer that are necessary for or incidental to the purposes for which the corporation is constituted” [16] In the recent decision of NEJ [2017] NSWCATGD 1, the Tribunal held that a Local Health District under the HSA was a ‘person’ for the purposes of s.9(1)(d). Local Health Districts are constituted under s. 1…
MZT [2018] NSWCATGD 8
Citation 7 (Para 16)

…In the recent decision of NEJ [2017] NSWCATGD 1, the Tribunal held that a Local Health District under the HSA was a “person” for the purposes of s 9(1)(d). Local Health Districts are constituted under s 17 of the HSA and are body corporates.…
NZD [2017] NSWCATGD 21
Citation 8 (Para 12)

…ned that certain corporate entities providing health services had standing to bring applications under the Guardianship Act . These decisions are NEJ [2017] NSWCATGD 1 ( NEJ ), EBI [2017] NSWCATGD 6 ( EBI ) and QVC [2017] NSWCATGD 20 ( QVC ).…
EOK [2017] NSWCATGD 27
Citation 9 (Para 7)

…nal, therefore, is satisfied that ISLHD has standing to make a guardianship and financial management applications for Mrs EOK in this matter (see NEJ [2017] NSWCATGD 1).…
TOB [2017] NSWCATGD 22
Citation 10 (Para 9)

…unal, therefore, is satisfied that WSLHD has standing to make a guardianship and financial management applications for Mr TOB in this matter (see NEJ [2017] NSWCATGD 1).…
EBI [2017] NSWCATGD 6
Citation 11 (Para 21)

…Ms Mansted referred to a recently decided case in the Guardianship Division – NEJ [2017] NSWCATGD 1, in which the Tribunal found that a Local Health District under the HSA was a person for the purposes of s 9(1)(d) of the Guardianship Act . She submitted that an affiliated health organisation and a Local Health Dist…

See all citing cases →

Cases Cited

CJH v Department of Family and Community Services [2016] NSWCATAD 162
Citation 1 (Para 20)

…The Crown Solicitor also referred to the decision of CJH v Department of Family and Community Services [2016] NSWCATAD 162, in which Principal Member Higgins considered that the words “genuine concern” are uncontroversial and should be given their ordinary meaning (at [56]). In that decision, Principal Member Higgins…
Re B [2011] NSWSC 1075
Citation 2 (Para 43)

…n s 4 of the Act ( C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep and Re B [2011] NSWSC 1075 at [66]).…
P v D1 & Ors [2011] NSWSC 257
Citation 3 (Para 44)

…In P v D1 & Ors [2011] NSWSC 257, the Supreme Court noted the importance of a proposed guardian being able to demonstrate insight and explain plans for how to act as guardian objectively and without conflict of interest.…
Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44
Citation 4 (Para 17)

…of the former Administrative Decisions Tribunal (ADT) Appeal Panel in Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44, in which the ADT considered the standing of “People with Disability Australia Inc.” (PWD) to apply as an interested person under the Administrative…
TC v Public Guardian & Ors [2006] NSWADTAP 15
Citation 5 (Para 20)

…should be given their ordinary meaning (at [56]). In that decision, Principal Member Higgins refers to the decision in TC v Public Guardian & Ors [2006] NSWADTAP 15, where the Appeal Panel of the ADT commented on s 9 of the Act as follows:…
IF v IG [2004] NSWADTAP 3
Citation 6 (Para 34)

…n of the matters in s 14(2). When undertaking this task, the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).…

Legislation Cited

Guardianship Act 1987 (NSW) 14, 14(2), 17(1), 3(1), 3(2), 4, 9(1)(d)...
9 mentions (from Para 7)
Health Services Act 1997 (NSW) 10, 17, 22, 8(2), 9
6 mentions (from Para 10)
Interpretation Act 1987 (NSW) 21, 5(2)
3 mentions (from Para 9)
Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) 29
2 mentions (from Para 17)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 17)
Civil and Administrative Tribunal Act 2013 (NSW)
1 mention
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	NEJ [2017] NSWCATGD 1
Hearing dates:	27 January 2017
Date of orders:	27 January 2017
Decision date:	27 January 2017
Jurisdiction:	Guardianship Division
Before:	J Moir, Senior Member (Legal) W Blaxland, Senior Member (Professional) J Green, General Member (Community)
Decision:	1. A guardianship order is made for Ms NEJ. 2. Mr KAJ, Ms SBJ and Mr TCJ are appointed as the joint guardians. 3. This is a continuing guardianship order for a period of 9 months from the date of this order. 4. This order will not be reviewed at the end of the above period. 5. This is a limited guardianship order giving the guardian custody of Ms NEJ to the extent necessary to carry out the functions below.
Catchwords:	GUARDIANSHIP – person in need of a guardian – need for accommodation and services function – limited non-reviewable order in best interests – private guardians appointed INTERLOCUTORY – standing – whether a Local Health District has standing to apply for a guardianship order – 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) – whether a Local Health District is a “person”
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), s 29 Guardianship Act 1987 (NSW), ss 3(1), 3(2), 4, 9(1)(d), 9(2), 14, 14(2), 17(1) Health Services Act 1997 (NSW), ss 8(2), 9, 10, 17, 22 Interpretation Act 1987 (NSW), ss 5(2), 21
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (Supreme Court (NSW), Windeyer J, 29 November 1999, unrep IF v IG [2004] NSWADTAP 3 Minister for Disability Services v People with Disability Australia Inc. (CSD) [2010] NSWADTAP 44 CJH v Department of Family and Community Services [2016] NSWCATAD 162 P v D1 [2011] NSWSC 257 Re B [2011] NSWSC 1075 TC v Public Guardian [2006] NSWADTAP 15
Texts Cited:	Ministry of Health - System Relationships and Frameworks, The Guardianship Application Process for Adult Inpatients of NSW Health Facilities, (Guideline No GL2016_026, NSW Ministry of Health, 4 November 2016).
Category:	Principal judgment
Parties:	Ms NEJ (subject person) South Western Sydney Local Health District (applicant) The NSW Public Guardian
Representation:	Nil
File Number(s):	64638
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)).