NZN
[2014] NSWCATGD 19
•25 March 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: NZN [2014] NSWCATGD 19 Hearing dates: 25 March 2014 Decision date: 25 March 2014 Jurisdiction: Guardianship Division Before: Tearle B, Senior Member (Legal)
Ovadia T, Senior Member (Professional)
Newman J, General Member (Community)Decision: Financial management application dismissed; no jurisdiction.
Catchwords: FINANCIAL MANAGEMENT - application for financial management order - jurisdiction - relationship with Mental Health Act. Legislation Cited: Guardianship Act 1987 (NSW)
Mental Health Act 2007 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)Category: Principal judgment Parties: Mr NZN (subject person)
Ms MAT (applicant)
The NSW Trustee and GuardianFile Number(s): 55164 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
What the Tribunal decided
The Tribunal dismissed the application for a financial management order for Mr NZN, because the Tribunal lacked the jurisdiction to make that order.
THE EVIDENCE AND THE TRIBUNAL'S REASONING
Reasons for this application
Mr NZN, who is 50 years old, was, at the time of the hearing on 25 March 2014, detained as an involuntary patient under the Mental Health Act 2007 (NSW) ('the Mental Health Act') in the Mental Health Unit of a regional public hospital. Before his admission to hospital, Mr NZN was recorded as having no fixed address. Mr NZN is reported to have a schizoaffective disorder.
Ms MAT, a Social Worker in the Mental Health Unit of the hospital, applied to the former Guardianship Tribunal on 13 December 2013 for a financial management order for Mr NZN.
On 12 December 2013, the Mental Health Review Tribunal had made an order under the NSW Trustee and Guardian Act 2009 (NSW), committing the management of Mr NZN's financial affairs to the care of the NSW Trustee and Guardian. The order made by the Mental Health Review Tribunal applied to part only of Mr NZN's estate. Under the terms of that order, it applied to all of Mr NZN's real and other property, including moneys held in trust from Mr NZN's mother's estate, motor vehicles, and a block of land at Regional NSW. The order excluded Mr NZN's Disability Support Pension, and funds in his everyday bank account.
The order made by the Mental Health Review Tribunal remains in force. The NSW Trustee and Guardian provided details of its administration of Mr NZN's estate in a report prepared on 19 March 2014.
Ms MAT applied to the former Guardianship Tribunal on the day after the Mental Health Review Tribunal had made that financial management order for Mr NZN. Ms MAT indicated that members of Mr NZN's treating team at the hospital had taken the view, from the outset, that Mr NZN's brother, Mr HAS, should be appointed to manage his financial affairs. By lodging an application with the former Guardianship Tribunal, Ms MAT had hoped to replace the NSW Trustee and Guardian with Mr HAS.
During the hearing on 25 March 2014, Ms MAT explained that a Legal Aid lawyer had suggested to her, following the hearing of the Mental Health Review Tribunal on 12 December 2013, that she could apply to the Guardianship Tribunal to replace the NSW Trustee and Guardian with Mr HAS.
What did the Tribunal have to decide?
The questions which the Tribunal had to decide in relation to financial management were:
(1) Is Mr NZN capable of managing his affairs?
(2) Is there a need for another person to manage Mr NZN's affairs, and is it in his best interests for a financial management order to be made?
(3) If so, who should be appointed as the financial manager?
Conduct of the hearing
Mr NZN and Ms MAT participated in the hearing by videoconference from the hospital. There was no dispute in this matter.
Does the Tribunal have jurisdiction to make the Financial Management Order requested by the applicant?
There is a preliminary legal issue relating to the Tribunal's jurisdiction. The Guardianship Act states in section 25K(2):
- The Tribunal does not have jurisdiction to make any financial management order (including an interim financial management order) in respect of a person if an order made under the NSW Trustee and Guardian Act 2009 or the Mental Health Act 2007 is in force in respect of any part of the person's estate.
As noted above, on 12 December 2013, the Mental Health Review Tribunal had made an order under the NSW Trustee and Guardian Act, committing the management of Mr NZN's financial affairs to the care of the NSW Trustee and Guardian. That order remains in force.
In the days preceding the hearing on 25 March 2014, an officer of the Tribunal Registry had alerted both Mr NZN and Ms MAT to the existence and effect of section 25K(2) of the Guardianship Act.
Application dismissed: no jurisdiction
The Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) is a creature of statute. It has no inherent jurisdiction. The Tribunal exercises the specific, but limited, jurisdiction given to it by Parliament. It does have the authority under the Guardianship Act to make financial management orders, and to review and, in some circumstances, to revoke those financial management orders. However, Parliament has not given to this Tribunal the authority to review, or to vary, or to set aside, an order made by the Mental Health Review Tribunal under the NSW Trustee and Guardian Act.
The management of Mr NZN's estate under the NSW Trustee and Guardian Act continues until terminated as provided for in that Act. The order made by the Mental Health Review Tribunal has not been terminated. Accordingly, an order made under the NSW Trustee and Guardian Act is in force in respect of Mr NZN's estate.
It follows, then, that the Tribunal does not have jurisdiction to make any financial management order in respect of Mr NZN (Guardianship Act, section 25K(2)). The Tribunal dismissed the application Ms MAT had lodged.
FORMAL FINDINGS
Financial Management
The Tribunal did not make any formal findings on the question as to whether Mr NZN is capable of managing his financial affairs. Instead, the Tribunal dismissed the application for a financial management order, because it lacked the jurisdiction to make that order.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 21 October 2014
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