Re F - [2013] NSWSC 54

Supreme Court

New South Wales

Medium Neutral Citation: Re F [2013] NSWSC 54
Hearing dates: 31 January 2013
Decision date: 31 January 2013
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Summons dismissed without costs.

Catchwords: EQUITY - guardianship - application to set aside orders of the Guardianship Tribunal - requirement for leave to appeal on a question of fact - consideration of views of persons under s 14 of the Guardianship Act 1987 - substitution of the applicant for a guardianship - whether a person should be appointed guardian in preference to the Public Guardian under s 15 of the Guardianship Act 1987
PROCEDURE - Supreme Court procedure - New South Wales - referral of litigant to registrar for pro bono assistance under r 7.36 of the Uniform Civil Procedure Rules 2005
Legislation Cited: Guardianship Act 1987 (NSW)
Cases Cited: Re B [2011] NSWSC 1075
K v K [2000] NSWSC 1052
EB v Guardianship Tribunal [2011] NSWSC 767
Slinko v Guardian and Administration Tribunal [2006] QSC 39; (2006) 2 Qd R 279
ADK v NSW Trustee and Guardian [2011] NSWADTAP 60
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category: Principal judgment
Parties: F's son (Plaintiff)
Guardianship Tribunal (Defendant)
Representation: Counsel:
In person (Plaintiff)
Submitting appearance (Public Guardian)
Solicitors:
Crown Solicitor (Defendant)

File Number(s): 2012/330049

Judgment

HIS HONOUR: This application concerns the protected person to whom I will refer as "F". F is 87 years old and resides in a nursing home at Parramatta pursuant to a decision about her residence made by the Public Guardian. The Public Guardian has been appointed as F's guardian pursuant to orders of the Guardianship Tribunal. The plaintiff is F's son.

The plaintiff challenges orders made by the Tribunal on 16 March 2012. On that day the Tribunal appointed the Public Guardian as F's guardian for a period of three years to make decisions about her accommodation, health care, medical and dental treatment services she should receive, and those persons who should have access to her and in what circumstances.

By summons filed on 23 October 2012 the plaintiff seeks the following relief:

"1. The Supreme Court to overturn 'all' Guardianship orders over Mum ['F'].

2. The Supreme Court to stop the Guardianship Tribunal to have no further dealings with myself or Mum."

The plaintiff, who is self represented, was not able to articulate the jurisdiction that he sought to invoke for those orders.

Section 67 of the Guardianship Act 1987 (NSW) provides that a party to a proceeding before the Tribunal may appeal to the Supreme Court from any decision of the Tribunal from that proceeding as of right upon a question of law, or by leave of the Supreme Court on any other question.

Section 8 of the Guardianship Act preserves the jurisdiction of the Supreme Court with respect to the guardianship of persons. For the reasons I gave in Re B [2011] NSWSC 1075, the parens patriae jurisdiction, if…

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 F

Details

AGLC: Re F [2013] NSWSC 54
Case: [2013] NSWSC 54
Decision Date: 31 January 2013

CaseChat Overview and Summary

The applicant, in this case, sought leave to appeal against the Guardianship Tribunal's decision, which rejected her application to be appointed as the guardian of her daughter, F, and instead appointed the Public Guardian as F's guardian. The dispute arose under the Guardianship Act 1987, focusing on the statutory criteria for appointing a guardian and the consideration of the person's views. The case was heard in the Supreme Court of New South Wales.

The primary legal issues the court needed to resolve included whether the applicant was entitled to leave to appeal on a question of fact, and whether the Guardianship Tribunal correctly considered the statutory provisions, particularly in relation to the applicant's views and the preference for a private guardian over the Public Guardian. The court had to determine whether the Tribunal's decision was legally sound and in the best interests of F.

In its decision, the court found that the applicant was not entitled to leave to appeal on a question of fact. The court concluded that the Guardianship Tribunal had properly exercised its discretion under the Act, and the decision was not shown to be legally erroneous. The court also found that the Tribunal had considered the applicant's views, although it may not have given them the weight the applicant believed they deserved. Ultimately, the court upheld the Tribunal's decision, finding that the appointment of the Public Guardian as F's guardian was in her best interests.

No further orders were made by the court beyond its decision to refuse the applicant's application for leave to appeal.

Orders