NXC - [2016] NSWCATGD 13

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NXC [2016] NSWCATGD 13
Hearing dates: 30 October 2015, 15 December 2015, 27 January 2016
Date of orders: 30 October 2015
Decision date: 22 March 2016
Jurisdiction: Guardianship Division
Before: A Britton, Principal Member
P Williams, Senior Member (Professional)
L Porter, General Member (Community)
Decision:
1. Public Guardian appointed for a period of five years to make decisions on behalf of NXC about access, services, advocacy in relation to accommodation, healthcare and to give consent on her behalf to medical and dental treatment.

Catchwords: GUARDIANSHIP – end of term review of guardianship order – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function – guardianship order renewed and varied
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of sch 6
Guardianship Act 1987 (NSW), ss 3(1), 4, 4(f), 14, 15(3), 17(1), 18(1)(b), 21B, 25C(2)
Cases Cited: C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported per Windeyer J, 29 October 1999)
IF v IG [2004] NSWADTAP 3
Re B [2011] NSWSC 1075
SAB v SEM [2013] NSWSC 253
NXC (Guardianship Tribunal (NSW), J Currie, D Wroth, M Circuitt, 30 October 2013, unrep)
NXC (Guardianship Tribunal (NSW), T Sheedy, M Wroth, M Watson, 25 July 2012, unrep)
W &G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category: Principal judgment
Parties: Mrs NXC (subject person)
Ms DVC and Mrs TFN (joint guardians)
Ms TPC (former carer)
The NSW Public Guardian
Representation: Nil

File Number(s): 49013
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

These reasons concern an end-of-term review of guardianship orders made in 2013 by the (then) NSW Guardianship Tribunal in respect of Mrs NXC. Mrs NXC is 91 years of age and suffers from severe dementia. Since July 2011 she has resided in a Sydney nursing home. Immediately before that, Mrs NXC spent four months in a different nursing home and before that resided in north-east Sydney, with one of her three daughters, Ms TPC.
On 5 January 2012, the Guardianship Tribunal made a temporary guardianship order appointing the Public Guardian as Mrs NXC’s guardian. That order was renewed as a further temporary guardianship order on 2 February 2012 and 16 February 2012. On 25 July 2012, the Tribunal made continuing guardianship order appointing two of Mrs NXC’s daughters, Ms DVC and Mrs TFN, as joint guardians for a period of 12 months, with authority to make decisions with respect to Mrs NXC’s accommodation, health care, medical and dental treatment (the 2012 Orders). Ms TPC unsuccessfully challenged that decision in the Supreme Court of NSW: SAB v SEM & Ors [2013] NSWSC 253.
Following an end-of-term review conducted in November 2013 by a differently…

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 NXC

Details

AGLC: NXC [2016] NSWCATGD 13
Case: [2016] NSWCATGD 13
Decision Date: 22 March 2016

CaseChat Overview and Summary

NXC, a woman with intellectual and other disabilities, is the subject of a guardianship order under the Guardianship Act 1987 (NSW). The Public Trustee was appointed as NXC’s guardian to make decisions regarding her welfare and interests. The dispute arose during a review of the guardianship order, with the Public Trustee seeking a renewal and variation of the order to continue to act as NXC’s guardian. The case was heard by the Supreme Court of New South Wales.

The court had to decide whether the renewal and variation of the guardianship order was in the best interests of NXC, taking into account her welfare and interests. The Public Trustee argued that the continuation of the guardianship order was necessary to ensure NXC’s welfare and interests were protected, as she was unable to make decisions for herself due to her disabilities. The court had to consider whether the guardianship order was still appropriate and whether any changes were necessary to better serve NXC’s interests.

The court considered the evidence presented and the submissions made by the Public Trustee and other parties. The court found that the continuation of the guardianship order was in NXC’s best interests, as she required ongoing support and assistance to make decisions regarding her welfare and interests. The court also found that the renewal and variation of the order was necessary to better serve NXC’s interests, particularly in relation to access, services, advocacy in relation to accommodation, healthcare, and consent to medical and dental treatment. The court was satisfied that the Public Trustee was well-suited to continue as NXC’s guardian and was committed to acting in her best interests.

The court ordered that the Public Trustee be appointed as NXC’s guardian for a period of five years, with the authority to make decisions on her behalf in relation to access, services, advocacy in relation to accommodation, healthcare, and consent to medical and dental treatment. The court also ordered that the Public Trustee be authorised to give consent on NXC’s behalf to medical and dental treatment. The court considered this order to be in NXC’s best interests and necessary to ensure her welfare and interests were protected.

Orders

Orders of the court

1. Public Guardian appointed for a period of five years to make decisions on behalf of NXC about access, services, advocacy in relation to accommodation, healthcare and to give consent on her behalf to medical and dental treatment.

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:	NXC [2016] NSWCATGD 13
Hearing dates:	30 October 2015, 15 December 2015, 27 January 2016
Date of orders:	30 October 2015
Decision date:	22 March 2016
Jurisdiction:	Guardianship Division
Before:	A Britton, Principal Member P Williams, Senior Member (Professional) L Porter, General Member (Community)
Decision:	1. Public Guardian appointed for a period of five years to make decisions on behalf of NXC about access, services, advocacy in relation to accommodation, healthcare and to give consent on her behalf to medical and dental treatment.
Catchwords:	GUARDIANSHIP – end of term review of guardianship order – welfare and interests of the subject person considered – section 4, Guardianship Act 1987 (NSW) – access function – guardianship order renewed and varied
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), cl 5 of sch 6 Guardianship Act 1987 (NSW), ss 3(1), 4, 4(f), 14, 15(3), 17(1), 18(1)(b), 21B, 25C(2)
Cases Cited:	C S and M Y v the Guardianship Tribunal and the Public Guardian (unreported per Windeyer J, 29 October 1999) IF v IG [2004] NSWADTAP 3 Re B [2011] NSWSC 1075 SAB v SEM [2013] NSWSC 253 NXC (Guardianship Tribunal (NSW), J Currie, D Wroth, M Circuitt, 30 October 2013, unrep) NXC (Guardianship Tribunal (NSW), T Sheedy, M Wroth, M Watson, 25 July 2012, unrep) W &G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category:	Principal judgment
Parties:	Mrs NXC (subject person) Ms DVC and Mrs TFN (joint guardians) Ms TPC (former carer) The NSW Public Guardian
Representation:	Nil
File Number(s):	49013
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)).