Re C

Case [2012] NSWSC 1097 14 September 2012

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Supreme Court

New South Wales

Medium Neutral Citation: Re C [2012] NSWSC 1097
Hearing dates: Monday, 3 September 2012
Decision date: 14 September 2012
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Refer to para [76] of judgment.

Catchwords:
GUARDIANSHIP - application by daughter of protected person that the Public Guardian be removed as guardian of protected person - application that plaintiff be appointed in his place - consideration of role of Public Guardian in providing accommodation for protected person - no grounds established for removal of Public Guardian
GUARDIANSHIP - application by daughter of protected person that NSW Trustee be removed as financial manager of protected person - application that plaintiff be appointed in its place - whether court has jurisdiction to remove NSW Trustee as financial manager of protected person where appointed by Guardianship tribunal - held court has jurisdiction to remove NSW Trustee as financial manager - where grounds for removal of NSW Trustee as financial manager but not appropriate to appoint plaintiff as financial manager - where no other person is proposed as financial manager - directions to be given to NSW Trustee in exercise of its functions - NSW Trustee to provide reports to enable directions to be given
Legislation Cited: NSW Trustee and Guardian Act 2009
Guardianship Act 1987
Interpretation Act 1987
Supreme Court Act 1970
Probate and Administration Act 1898
Cases Cited: F v R (Supreme Court of New South Wales, Powell J, 2 May 1986, unreported)
Holt v Protective Commissioner (1993) 31 NSWLR 227
Texts Cited: Collinson on Lunacy (George Collinson, A treatise on the law concerning idiots, lunatics and other persons non compotes mentis, (1812), W. Reed, Volume 1)
Elmer's Practice in Lunacy (Joseph Elmer, A practice in lunacy under commissions and inquisitions, 7th ed (1892) Stevens & Sons
Theobald, The Law Relating to Lunacy (1924) Stevens & Sons
Category: Principal judgment
Parties: Plaintiff
NSW Trustee and Guardian (1st Defendant)
Public Guardian (2nd Defendant)
3rd Defendant
4th Defendant
Representation: Counsel:
In Person (Plaintiff)
Dr J Lucy (1st & 2nd Defendants)
In Person (3rd Defendant)
In Person (4th Defendant)
Solicitors:
Crown Solicitor (1st & 2nd Defendants)

File Number(s): 2012/206438

Judgment

HIS HONOUR: The plaintiff is the daughter of the fourth defendant ("C"). C is a protected person. On 31 July 2009 the Guardianship Tribunal found that C was incapable of managing his affairs. It appointed the NSW Trustee and Guardian as C's financial manager. It appointed the Public Guardian as C's guardian with the functions of accommodation, health care, medical and dental consent, services and access.

In these proceedings the plaintiff seeks orders that the NSW Trustee and Guardian be removed as C's financial manager, that the Public Guardian be removed as guardian of C, and that she be appointed in their place. If those orders are not made, the plaintiff seeks directions to be given to the NSW Trustee and Guardian and the Public Guardian in relation to the release of sufficient funds to enable the purchase of…

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 Re C

Details

AGLC: Re C [2012] NSWSC 1097
Case: [2012] NSWSC 1097
Decision Date: 14 September 2012

CaseChat Overview and Summary

The case of Re C involved an application by a daughter to have the Public Guardian removed as the guardian of her father, who was a protected person, and for herself to be appointed in their place. Additionally, the daughter sought to replace the NSW Trustee as the financial manager of her father, again proposing herself for the role. The case was heard in the Supreme Court, which had to consider the appropriate roles of the Public Guardian and the NSW Trustee in managing the protected person's affairs. The court was tasked with determining whether there were sufficient grounds to remove the Public Guardian and the NSW Trustee and, if so, whether the daughter should be appointed to replace them.

The legal issues that the court had to address included the grounds for removing the Public Guardian and the NSW Trustee, the court's jurisdiction to do so, and whether the daughter was a suitable candidate to take on these roles. The court needed to consider the statutory provisions governing guardianship and financial management, as well as the principles guiding the appointment and removal of guardians and financial managers. The court also had to assess the evidence and arguments presented by the parties regarding the suitability of the daughter as a replacement for the Public Guardian and the NSW Trustee.

In its decision, the court found that there were no established grounds for removing the Public Guardian as the guardian of the protected person. The court acknowledged the important role that the Public Guardian played in providing appropriate accommodation and care for the protected person. However, the court did determine that it had the jurisdiction to remove the NSW Trustee as the financial manager of the protected person, even though the NSW Trustee had been appointed by the Guardianship Tribunal. The court identified that there were grounds for the removal of the NSW Trustee but concluded that it was not appropriate to appoint the daughter as the new financial manager, as no other suitable candidate was proposed. The court issued directions to the NSW Trustee for the exercise of its functions and required the NSW Trustee to provide reports to enable the court to give further directions as necessary.

The court's final orders included confirming the Public Guardian's role as the guardian of the protected person, removing the NSW Trustee as the financial manager, and directing the NSW Trustee to provide reports to facilitate the court's ongoing oversight. The daughter's application to be appointed as the guardian or financial manager was dismissed.

Orders