NSW Trustee and Guardian v Ralph Stern

[2015] NSWSC 2087

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Trustee and Guardian v Ralph Stern [2015] NSWSC 2087
Hearing dates:	2 July 2015
Date of orders:	02 July 2015
Decision date:	02 July 2015
Jurisdiction:	Equity - Duty List
Before:	Brereton J
Decision:	Second defendant declared to be a person of unsound mind; Thomas McLoughlin appointed to a committee of the person of the second defendant.
Catchwords:	MENTAL HEALTH – guardians, committees, administrators, managers and receivers – application for appointment as “guardian” – whether (NSW) Guardianship Act 1987 confers jurisdiction to appoint guardian over mentally ill adults – held, s 8 does not confer jurisdiction – parens patriae or inherent jurisdiction of Court to appoint “committee of person”.
Legislation Cited:	(NSW) Family Provision Act 1982 (NSW) Guardianship Act 1987, s 8 (NSW) Succession Act 2006, ch 3
Cases Cited:	MN v AN (1989) 16 NSWLR 525 Stern v Sekers; Sekers v Sekers [2010] NSWSC 59 R H v C A H (1984) 1 NSWLR 694 Re BC [2009] NSWSC 835
Category:	Procedural and other rulings
Parties:	NSW Trustee and Guardian (plaintiff/respondent) Ralph Stern (first defendant) CS by her tutor TM (second defendant/applicant)
Representation:	Counsel: C Windeyer (plaintiff/respondent) S Hodges (second defendant/applicant)   Solicitors: L Rundle & Co (plaintiff/respondent) Stephen Hodges Solicitor (second defendant/applicant)
File Number(s):	2014/51326

Judgment (ex tempore)

1. HIS HONOUR: By notice of motion filed on 24 June 2015, the second defendant's tutor in the substantive proceedings, TM, seeks an order that until further order he be appointed as "the guardian" of the second defendant, with specified powers to authorise and arrange medical and dental treatment, accommodation and to engage companions and carers for her.

2. The second defendant is a 52 year old woman with a 25 year history of schizophrenia whose illness has required multiple admissions to psychiatric hospitals and antipsychotic medication, with symptoms of disorganised thinking and paranoid ideation, and whose symptoms have fluctuated over the years. Her compliance with medication has at times been poor, and her insight into her illness is only partial.

3. The second defendant was successful in proceedings under (NSW) Family Provision Act 1982 (now (NSW) Succession Act 2006, ch 3) for provision out of the estate of her late father, wherein it was ordered that she receive a very substantial legacy – in excess of $2 million [see Stern v Sekers; Sekers v Sekers [2010] NSWSC 59]. The orders ultimately made included detailed provision for the investment and application of the legacy by the New South Wales Trustee and Guardian.

4. The substantive proceedings presently before the Court involve an application by the New South Wales Trustee to be excused from breaches of trust under those orders, and for directions in respect of the application of the trust funds. That application is not presently before me for consideration. However, in the course of those proceedings, TM, who acts as the second defendant's tutor, and has been one of the few people who have been able to establish what appears to be a trusted relationship with her and to be able to influence her positively in some respects, has applied – because of the manifest need of the second defendant for personal care and supervision – to be appointed her guardian on an interim basis.

5. The evidence plainly establishes that the second defendant is in need of a "guardian", and that TM is a most suitable person to be appointed for that purpose. He is a solicitor, and whilst he does not wish to undertake this role indefinitely and has his own professional and personal obligations, he nonetheless proffers to undertake this role at least for the time being, because of the urgency and critical position of the second defendant, a stance which does him great credit.

6. I have, however, been troubled by the jurisdictional basis for the application. It is true that (NSW) Guardianship Act 1987 provides, by s 8, that nothing limits the jurisdiction of the Supreme Court with respect to the guardianship of persons. The effect of that provision, however, is simply that, whatever jurisdiction the Court otherwise has is not taken away or limited by that part of the Guardianship Act; it does not confer jurisdiction on the Court. That, therefore, begs the question: what is the jurisdiction of the Court with respect to the guardianship of adult persons?

7. In respect of the mentally ill, the supervision and care of such persons has been a long standing aspect of the Court's parens patriae jurisdiction. That jurisdiction was authoritatively discussed by Powell J in R H v C A H (1984) 1 NSWLR 694 and MN v AN (1989) 16 NSWLR 525. In so far as it extends to something like "guardianship", it appears from those authorities to be a jurisdiction to appoint a "committee of the person", who essentially has responsibility and power to decide where and with whom the person lives, who is to have access to the person, and to make decisions in respect of such things as the person's medical and dental care. At least arguably a committee of the person might also, but preferably with the prior leave of the Court, arrange for the admission of the person to an institution.

8. Those cases and the inherent jurisdiction do not, as it seems to me in the time that I have had to look at this issue overnight, extend to making an order appointing a "guardian" in those terms. It may be that there is practically no difference, and that may be the explanation for the judgment of Palmer J in Re BC [2009] NSWSC 835, in which his Honour appears to have assumed that the inherent jurisdiction extended to the appointment of a guardian. It seems to me that it may be desirable to avoid using that term, because the Guardianship Act itself makes provision in respect of guardians, and a person appointed by this Court in its inherent jurisdiction would not be a guardian appointed under the Guardianship Act and would not be subject to the provisions of that Act. For that reason, it seems preferable to avoid the confusion that might arise by appointing such a person as a "guardian".

9. On the authorities to which I have referred, I am satisfied that the Court has power in its inherent jurisdiction to appoint a committee of the person; that that jurisdiction is preserved by Guardianship Act, s 8; that this is a case in which it is desirable in the interests of the second defendant that such a committee be appointed; and that TM is a fit and proper person to be so appointed.

10. The Court declares that the second defendant is a person who is of unsound mind.

11. The Court orders that:

1. TM be appointed to be a committee of the person of the second defendant to act in relation thereto under the order and direction of the Court.

2. That, pending further order, TM as the committee of the person have the following powers:

1. to authorise and arrange medical treatment for CS;

2. to authorise and arrange dental treatment for CS;

3. to authorise and arrange psychiatric, psychological and counselling treatment for CS;

4. to obtain medical, dental, psychiatric, psychological and counselling records in respect of CS from those who have treated CS or consulted with her, including treatment and consultations before and after the date of these orders;

5. to authorise and arrange accommodation for and on behalf of CS; and

6. to engage companion/carers, case manager and independent clinician for CS pursuant to the orders of this Court dated 7 May 2010 in proceedings number 2007/257842.

3. TM costs of this application be paid by the plaintiff from the funds held by it on behalf of CS.

4. Until further order, the plaintiff, in its capacity as trustee of the funds held on behalf of CS pursuant to orders made in proceedings 2007/257842, may pay the ongoing legal costs of the second defendant, that is to say CS by her tutor TM, in these proceedings from those funds, subject to the following:

1. the solicitor for the second defendant may render itemised tax invoices from time to time but not more regularly than a monthly basis, such invoices to be faxed or posted to the plaintiff with a copy to the plaintiff's solicitor;

2. payment is to be made by the plaintiff to the solicitor for the second defendant within 21 days of the receipt of the tax invoice;

3. the plaintiff may dispute items within the invoice only if they are not in accordance with the costs agreement between the second defendant and the solicitor or are otherwise not fair or reasonable;

4. if the plaintiff disputes items in an invoice, payment of those parts of the invoice not subject to the dispute is to be made within 21 days and payment of the disputed items within 21 days of the dispute being resolved.

And the Court notes that order 4 is made noting that:

5. the above orders are made with the consent of the plaintiff;

6. order 4 is subject to any subsequent orders that the Court may make in relation to costs.

5. The proceedings be otherwise adjourned to Wednesday 26 August 2015 before the Registrar in the protective list.

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Decision last updated: 19 August 2016