NZD - [2017] NSWCATGD 21

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: NZD [2017] NSWCATGD 21
Hearing dates: 27 November 2017
Date of orders: 27 November 2017
Decision date: 27 November 2017
Jurisdiction: Guardianship Division
Before: K A McMahon, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
F E Hilson, General Member (Community)
Decision:
Interlocutory Application:

The Benevolent Society has standing to apply for a guardianship and financial management order.

On the application by Ms PAF, today’s hearing is adjourned to 14 December 2017.

The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.
001: Guardianship Application

1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.
2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the guardianship application.
3. The request by The Benevolent Society to be otherwise legally represented in the guardianship application is refused.
4. On the application by PAF, today's hearing is adjourned to 14 December 2017.
002: Financial Management Application

1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.
2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the financial management application.
3. The request by The Benevolent Society to be otherwise legally represented in the financial management application is refused.
4. On the application by PAF, today's hearing is adjourned 14 December 2017.

Catchwords: INTERLOCUTORY – standing – does The Benevolent Society have standing to apply for a guardianship and financial management 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 The Benevolent Society is a “person”
Legislation Cited: Corporations Act 2001 (Cth)
Guardianship Act 1987 (NSW), s 9(1)(d)
Interpretation Act 1987 (NSW), s 21
Cases Cited: CJH v Department of Family and Community Services [2016] NSWCATAD 162
EBI [2017] NSWCATGD 6
KA v Public Guardian & Ors [2004] NSWADTAP 25
Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44
NEJ [2017] NSWCATGD 1
QVC [2017] NSWCATGD 20
Category: Principal judgment
Parties: Mr NZD (the person)
The Benevolent Society (applicant)
Ms PAF (carer)
Public Guardian
NSW Trustee and Guardian
Representation: L Rogers (The Benevolent Society)

File Number(s): NCAT 2017/00329005
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

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: NZD [2017] NSWCATGD 21
Case: [2017] NSWCATGD 21
Decision Date: 27 November 2017

CaseChat Overview and Summary

The Benevolent Society applied for a guardianship and financial management order on behalf of a person, Ms PAF. The application was contested by Ms PAF, who sought to have The Benevolent Society's standing to apply for the orders determined. The matter was heard in the NCAT, with a view to resolving the issue of standing before proceeding with the substantive application. The legal issues before the court were whether The Benevolent Society had standing to apply for the orders under s 9(1)(d) of the Guardianship Act 1987 (NSW), and whether The Benevolent Society qualified as a "person" for the purposes of s 21 of the Interpretation Act 1987 (NSW).

The court found that The Benevolent Society had standing to apply for the orders, as it had a genuine concern for the welfare of the person. The court considered that The Benevolent Society had a sufficient connection to the person, and had provided evidence of its concern for the person's welfare. The court also found that The Benevolent Society qualified as a "person" for the purposes of s 21 of the Interpretation Act, as it was a legal entity with the capacity to act and be acted upon. The court noted that The Benevolent Society was an incorporated association, with a constitution and a governing body, and was therefore a person for the purposes of the Act.

The court made several orders in relation to the interlocutory application. The court found that The Benevolent Society had standing to apply for the guardianship and financial management orders, and allowed The Benevolent Society to be legally represented on the issue of standing. The court refused The Benevolent Society's request to be otherwise legally represented in the guardianship and financial management applications. The court also adjourned the hearing to a later date, to allow the parties to provide further documents and evidence.

Orders

Orders of the court

Interlocutory Application:

The Benevolent Society has standing to apply for a guardianship and financial management order.

On the application by Ms PAF, today’s hearing is adjourned to 14 December 2017.

The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.

001: Guardianship Application

1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.

2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the guardianship application.

3. The request by The Benevolent Society to be otherwise legally represented in the guardianship application is refused.

4. On the application by PAF, today's hearing is adjourned to 14 December 2017.

002: Financial Management Application

1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017.

2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the financial management application.

3. The request by The Benevolent Society to be otherwise legally represented in the financial management application is refused.

4. On the application by PAF, today's hearing is adjourned 14 December 2017.

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:	NZD [2017] NSWCATGD 21
Hearing dates:	27 November 2017
Date of orders:	27 November 2017
Decision date:	27 November 2017
Jurisdiction:	Guardianship Division
Before:	K A McMahon, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) F E Hilson, General Member (Community)
Decision:	Interlocutory Application: The Benevolent Society has standing to apply for a guardianship and financial management order. On the application by Ms PAF, today’s hearing is adjourned to 14 December 2017. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017. 001: Guardianship Application 1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017. 2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the guardianship application. 3. The request by The Benevolent Society to be otherwise legally represented in the guardianship application is refused. 4. On the application by PAF, today's hearing is adjourned to 14 December 2017. 002: Financial Management Application 1. The parties to give to the Tribunal and to all other parties and the separate representative for the person (if any), a copy of any further documents relied upon by 7 December 2017. 2. The Benevolent Society is allowed to be legally represented on the issue of whether The Benevolent Society has standing to make the financial management application. 3. The request by The Benevolent Society to be otherwise legally represented in the financial management application is refused. 4. On the application by PAF, today's hearing is adjourned 14 December 2017.
Catchwords:	INTERLOCUTORY – standing – does The Benevolent Society have standing to apply for a guardianship and financial management 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 The Benevolent Society is a “person”
Legislation Cited:	Corporations Act 2001 (Cth) Guardianship Act 1987 (NSW), s 9(1)(d) Interpretation Act 1987 (NSW), s 21
Cases Cited:	CJH v Department of Family and Community Services [2016] NSWCATAD 162 EBI [2017] NSWCATGD 6 KA v Public Guardian & Ors [2004] NSWADTAP 25 Minister for Disability Services v People With a Disability Inc (CSD) [2010] NSWADTAP 44 NEJ [2017] NSWCATGD 1 QVC [2017] NSWCATGD 20
Category:	Principal judgment
Parties:	Mr NZD (the person) The Benevolent Society (applicant) Ms PAF (carer) Public Guardian NSW Trustee and Guardian
Representation:	L Rogers (The Benevolent Society)
File Number(s):	NCAT 2017/00329005
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