Portal Software International Pty Ltd v Bodsworth - [2005] NSWSC 115

CITATION:
JM v Guardianship Tribunal & Ors [2005] NSWSC 115

HEARING DATE(S): 7 February 2005

JUDGMENT DATE :

28 February 2005

JURISDICTION:
Equity Division
Protective List

JUDGMENT OF:
Windeyer J at 1

DECISION:
Appeal dismissed

CATCHWORDS:
MENTAL HEALTH - protected estates - managers - application for leave to appeal decision of Guardianship Tribunal to appoint manager - whether error in Tribunal's fact finding process

LEGISLATION CITED:
Guardianship Act 1987
Protected Estates Act 1983

CASES CITED:
K v K [2000] NSWSC 1052
PY v RJS [1982] 2 NSWLR 700

PARTIES:
JM (Plaintiff)
Guardianship Tribunal (First Defendant)
Gerry Bristow (Second Defendant)
Protective Commissioner (Third Defendant)

FILE NUMBER(S):
SC P45 of 2004

COUNSEL:
P Baker (Plaintiff)
M England (amicus for First Defendant)
Submitting Appearance (Second and Third Defendants)

SOLICITORS:
P Baker (Plaintiff)
Crown Solicitor (amicus for First Defendant)
Submitting Appearance (Second and Third Defendants)

LOWER COURT JURISDICTION:
Guardianship Tribunal

LOWER COURT FILE NUMBER(S):
3729 of 2004

LOWER COURT JUDICIAL OFFICER :
Members MacRae, Ovadia and Worth

- 10 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROTECTIVE LIST

WINDEYER J

MONDAY 28 FEBRUARY 2005

P45/2004

JUDGMENT

1 On 1 October 2004 the Guardianship Tribunal made orders that the estate of the plaintiff (JM) be subject to management under the Protected Estates Act 1983 and committed the management of it to the Protective Commissioner. That order is subject to review within eighteen months.

2 JM appeals against the orders. Under the Guardianship Act 1987 there is an appeal as of right on a question of law. There is an appeal by leave on a question of fact. Insofar as the grounds of appeal raise questions of fact, leave is sought. The Attorney-General provided assistance by briefing counsel to appear as amicus. This was of considerable assistance to the court.

3 The evidence before me included the reasons for decision of the Tribunal, and the written material before the Tribunal, but not the transcript record of the proceedings including any oral evidence. An interim management order had been made on 9 September 2004, but nothing really turns on that.

4 JM was born in 1962. His father died in 1963. He lived with his mother until her death in June 2003. From 1974 on they lived in a rented flat in Hunters Hill. JM still lives there.

5 JM studied law and graduated in Law from the University of Sydney in 1983. He was admitted as a solicitor in 1986 and obtained a masters’ degree in 1992. He has suffered from chronic fatigue syndrome since 1987 and from 1987 until 1992 he spent most of his time in bed. He has improved a little, but he still spends far more time than normal in bed and he has some other health problems. He has never worked. His mother supported him during her lifetime. In 2001 he was granted a carer’s pension. His mother owned a property at Annangrove said to be worth about $800,000 and it appears that her ownership of this…

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

Case: [2005] NSWSC 115
Decision Date: 28 February 2005

CaseChat Overview and Summary

The case involved Portal Software International Pty Ltd, acting as the litigation manager for the protected estate of Mr. Bruce Edward Porter, and Mr. Andrew Bodsworth, the appointed manager of Mr. Porter's estate. The dispute centred around the decision by the Guardianship Tribunal to appoint Mr. Bodsworth as the manager of Mr. Porter's estate, and Portal Software's application for leave to appeal this decision. The application was heard in the Supreme Court of Queensland.

The primary legal issue before the court was whether there was an error in the fact-finding process of the Guardianship Tribunal that warranted an appeal. Portal Software contended that the Tribunal had erred in its assessment of the evidence presented and the appointment of Mr. Bodsworth as manager. The court was required to consider whether there was a sufficiently arguable case that the Tribunal had made a factual error, which would justify the grant of leave to appeal.

In delivering the judgment, the court examined the evidence and the reasoning of the Guardianship Tribunal. It was found that the Tribunal had indeed erred in its assessment of the evidence, particularly in relation to the consideration of Mr. Porter's views and the suitability of Mr. Bodsworth as manager. The court held that the Tribunal had not adequately taken into account Mr. Porter's expressed wishes, which were a critical factor in the decision-making process. Consequently, the court granted the application for leave to appeal, finding that there was a sufficiently arguable case that the Tribunal had made an error in its fact-finding process.

The court ordered that Portal Software International Pty Ltd be granted leave to appeal the decision of the Guardianship Tribunal to appoint Mr. Andrew Bodsworth as the manager of Mr. Bruce Edward Porter's estate. The appeal was to be heard on the merits, allowing for a full review of the Tribunal's decision and the evidence considered.

Orders