GUARDIANSHIP - application in parens patriae jurisdiction to set aside order to set aside orders of Guardianship Tribunal - inherent jurisdiction of Court preserved by s 8, Guardianship Act 1987 - approach exercise of parens patriae jurisdiction as if application were an appeal on a question of law or an application for leave - where no dispute that person in need of a guardian- where Public Guardian appointed as guardian - where family member available - errors of law and errors of process of decision-making of Guardianship Tribunal - Public Guardian should not be appointed in circumstances in which order can properly be made in favour of another person - s 15(3), Guardianship Act 1987 - Guardianship Tribunal failed to make necessary factual findings - Guardianship Tribunal's orders set aside - whether matter should be remitted to the Guardianship Tribunal - further hearing ordered before the court as to who should be appointed guardian - status quo maintained in the interim
The Plaintiff (Plaintiff) NSW Trustee & Guardian (1st Defendant) Guardianship Tribunal (2nd Defendant) John (3rd Defendant) Mrs B (4th Defendant)
Representation:
In person (Plaintiff) C Phang, solicitor (Defendant)
File Number(s):
2011/46118
Judgment
HIS HONOUR : On 13 September 2011 I made the orders in para [83] below. These are my reasons.
This is an application in the Court's parens patriae jurisdiction to set aside orders of the Guardianship Tribunal ("the Tribunal") appointing the Public Guardian as guardian of the plaintiff's mother, whom I will call Mrs B, and removing the plaintiff as the person responsible for the decisions concerning the medical care of Mrs B. Mrs B is 94 years old.
Orders of 24 July 2007
On 24 July 2007 the Guardianship Tribunal ordered that Mrs B be placed under guardianship and that her guardian be the Public Guardian. It made a continuing guardianship order under s 16(1)(b) of the Guardianship Act1987. The Tribunal ordered that the Public Guardian have the following functions in relation to Mrs B, namely:
" a) Accommodation
To determine where [Mrs B] may reside
b) Health Care
To determine what health care and major and minor medical and dental treatment [Mrs B] may receive
c) Medical and dental consent
Where
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
Re B [2011] NSWSC 1075
Case
[2011] NSWSC 1075
Decision Date
CaseChat Overview and Summary
The case of Re B involved an application by the Public Advocate to set aside orders made by the Guardianship Tribunal. The applicant sought to have the Tribunal's orders overturned, arguing that there were errors in law and process in the decision-making. The Public Advocate contended that the Tribunal should not have appointed the Public Guardian as the guardian of the person in need, when a family member was available and suitable to take on the role.
The court had to determine whether the Public Advocate's application should be successful and if the matter should be remitted to the Guardianship Tribunal. The central issue was whether the Guardianship Tribunal had made the necessary factual findings, and if the appointment of the Public Guardian was appropriate given the availability of a family member. The court also needed to consider whether the inherent jurisdiction of the court could be exercised in this matter and whether the Tribunal's errors warranted setting aside their orders.
The court found that the Guardianship Tribunal had indeed made errors in law and process, and that these errors were significant enough to warrant setting aside the Tribunal's orders. The court held that the Tribunal failed to make necessary factual findings, which was a substantial error. Furthermore, the court noted that the Public Guardian should not have been appointed when another person was available and suitable to act as the guardian. The court concluded that the matter should not be remitted to the Guardianship Tribunal but instead ordered a further hearing before the court to determine who should be appointed as the guardian. In the interim, the status quo was to be maintained.
The final orders of the court were to set aside the Guardianship Tribunal's orders and to direct a further hearing before the court to determine who should be appointed as the guardian of the person in need. The status quo was to be maintained until the further hearing, ensuring that the person in need continued to receive appropriate care and support.