NVQ - [2016] NSWCATGD 38

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NVQ [2016] NSWCATGD 38
Hearing dates: 21 October 2016
Date of orders: 21 October 2016
Decision date: 21 October 2016
Jurisdiction: Guardianship Division
Before: A Britton, Principal Member
I Beale, Senior Member (Professional)
P Davidson, General Member (Community)
Decision:
1. The guardianship order for Mr NVQ made by the Tribunal on 9 December 2015 is renewed and varied as follows.

2. This is a continuing guardianship order for a period of 12 months from the date of this order.
3. The Public Guardian is appointed as the guardian.
4. This is a limited guardianship order giving the guardian custody of Mr NVQ to the extent necessary to carry out the functions referred to below.

1. The estate of Mr NVQ is subject to management under the NSW Trustee and Guardian Act 2009.

2. The management of the estate of Mr NVQ is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

4. The following specified part of the estate is excluded from this financial management order:
• Any pension or benefit received by Mr NVQ from Centrelink.
Catchwords:
GUARDIANSHIP –review of guardianship order – competing considerations under s 4 Guardianship Act –– whether Public Guardian can be given “legal instruction” function
FINANCIAL MANAGEMENT – power of NSW Trustee and Guardian in relation to a compensation claim made on behalf of a protected person
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of sch 6
Guardianship Act 1987 (NSW), ss 3(2), 4, 14, 16, 21, 21(1), 21(2A), 25(2), 25C(2), 25E(2), 25G, 25G(a); Pt 3, Pt 3A
NSW Trustee and Guardian Act 2009 (NSW), ss 16, 16(s), 25E, 38
Cases Cited: HH v HI and Protective Commissioner [2009] NSWADTAP 41
IF v IG & Ors [2004] NSWADTAP 3
MN v AN (1989) 16 NSWLR 525
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Application for partial management orders [2014] NSWSC 1468
Category: Principal judgment
Parties: Mr NVQ (subject person and applicant)
The NSW Public Guardian
The NSW Trustee and Guardian
Representation: Separate Representation

File Number(s): 217
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

Fifty-four year-old Mr NVQ lives independently in a Housing NSW unit in Inner-City Sydney. Since 1989, he has been the subject of successive guardianship orders made by the NSW Civil and Administrative Tribunal (NCAT) and its predecessor tribunals. Made in December 2015, the most recent order appointed the Public Guardian to act as Mr NVQ’s guardian and conferred an advocacy, “legal services and advocacy” and services function for a term of 12 months (the 2015 Order).
These reasons address four interrelated matters:

an end-of-term review conducted as required by s 25(2) of the Guardianship Act

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 NVQ

Details

AGLC: NVQ [2016] NSWCATGD 38
Case: [2016] NSWCATGD 38
Decision Date: 21 October 2016

CaseChat Overview and Summary

The parties involved in this case are Mr NVQ, the Public Guardian, and the NSW Trustee and Guardian. The dispute revolves around the renewal and variation of a guardianship order for Mr NVQ, as well as the management of his estate. The court in question is the Tribunal, which is tasked with reviewing the guardianship order and determining the appropriate management of Mr NVQ's estate. The legal issues that the court needed to decide pertain to the competing considerations under section 4 of the Guardianship Act, and whether the Public Guardian can be given the function of providing legal instructions to Mr NVQ. Additionally, the court needed to address the power of the NSW Trustee and Guardian in relation to a compensation claim made on behalf of Mr NVQ.

The court's reasoning and outcome focused on balancing the competing considerations under section 4 of the Guardianship Act. The court found that it was in Mr NVQ's best interests to have the Public Guardian appointed as his guardian, and that the guardianship order should be a limited guardianship order, giving the guardian custody of Mr NVQ to the extent necessary to carry out the functions referred to in the order. The court also determined that the estate of Mr NVQ should be subject to management under the NSW Trustee and Guardian Act 2009, and that the management of the estate should be committed to the NSW Trustee and Guardian. The court further decided that any pension or benefit received by Mr NVQ from Centrelink should be excluded from the financial management order. The court's decision was based on the principle of promoting Mr NVQ's welfare and autonomy, as well as ensuring that his financial affairs are managed appropriately.

The final orders of the court included the renewal and variation of the guardianship order for Mr NVQ, with the Public Guardian appointed as the guardian. The order also specified that the estate of Mr NVQ is subject to management under the NSW Trustee and Guardian Act 2009, with the management of the estate committed to the NSW Trustee and Guardian. The court further ordered that any pension or benefit received by Mr NVQ from Centrelink should be excluded from the financial management order, and that the order be reviewed by the Tribunal within 12 months. These orders reflect the court's consideration of the competing interests of Mr NVQ, as well as the need to ensure that his financial affairs are managed appropriately.

Orders

Orders of the court

1. The guardianship order for Mr NVQ made by the Tribunal on 9 December 2015 is renewed and varied as follows.

2. This is a continuing guardianship order for a period of 12 months from the date of this order.

3. The Public Guardian is appointed as the guardian.

4. This is a limited guardianship order giving the guardian custody of Mr NVQ to the extent necessary to carry out the functions referred to below.

1. The estate of Mr NVQ is subject to management under the NSW Trustee and Guardian Act 2009.

2. The management of the estate of Mr NVQ is committed to the NSW Trustee and Guardian.

3. This order be reviewed by the Tribunal within 12 months.

4. The following specified part of the estate is excluded from this financial management order:

• Any pension or benefit received by Mr NVQ from Centrelink.

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:	NVQ [2016] NSWCATGD 38
Hearing dates:	21 October 2016
Date of orders:	21 October 2016
Decision date:	21 October 2016
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member I Beale, Senior Member (Professional) P Davidson, General Member (Community)
Decision:	1. The guardianship order for Mr NVQ made by the Tribunal on 9 December 2015 is renewed and varied as follows. 2. This is a continuing guardianship order for a period of 12 months from the date of this order. 3. The Public Guardian is appointed as the guardian. 4. This is a limited guardianship order giving the guardian custody of Mr NVQ to the extent necessary to carry out the functions referred to below. 1. The estate of Mr NVQ is subject to management under the NSW Trustee and Guardian Act 2009. 2. The management of the estate of Mr NVQ is committed to the NSW Trustee and Guardian. 3. This order be reviewed by the Tribunal within 12 months. 4. The following specified part of the estate is excluded from this financial management order: • Any pension or benefit received by Mr NVQ from Centrelink.
Catchwords:	GUARDIANSHIP –review of guardianship order – competing considerations under s 4 Guardianship Act –– whether Public Guardian can be given “legal instruction” function FINANCIAL MANAGEMENT – power of NSW Trustee and Guardian in relation to a compensation claim made on behalf of a protected person
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of sch 6 Guardianship Act 1987 (NSW), ss 3(2), 4, 14, 16, 21, 21(1), 21(2A), 25(2), 25C(2), 25E(2), 25G, 25G(a); Pt 3, Pt 3A NSW Trustee and Guardian Act 2009 (NSW), ss 16, 16(s), 25E, 38
Cases Cited:	HH v HI and Protective Commissioner [2009] NSWADTAP 41 IF v IG & Ors [2004] NSWADTAP 3 MN v AN (1989) 16 NSWLR 525 P v NSW Trustee and Guardian [2015] NSWSC 579 Re Application for partial management orders [2014] NSWSC 1468
Category:	Principal judgment
Parties:	Mr NVQ (subject person and applicant) The NSW Public Guardian The NSW Trustee and Guardian
Representation:	Separate Representation
File Number(s):	217
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)).