Re KA - [2020] NSWSC 1696

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Re KA [2020] NSWSC 1696
Hearing dates: 30 October and 18 November 2020
Date of orders: 18 November 2020
Decision date: 27 November 2020
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a trust fund) designed to facilitate an independent medical examination of a vulnerable person, and the attendance upon her of an official visitor, for the provision of reports to the Court about her capacity for self-management, and self-expression, in circumstances in which (contrary to a case advanced to NCAT at the time a financial management order affecting her was discharged) she was relocated from her home to a distant suburb, with the intention that access to her be restricted.

Catchwords:
PROTECTIVE JURISDICTION – Management of the affairs (person and property) of a vulnerable person – Interlocutory orders designed to facilitate independent medical examination and a visitor’s report to Court.

Legislation Cited:
NSW Trustee and Guardian Act 2009 NSW
Guardianship Act 1987 NSW.
Supreme Court Rules 1970 NSW
Uniform Civil Procedure Rules 2005 NSW
NSW Trustee and Guardian Act 2009 NSW

Cases Cited:
Angliss v Urquhart [2001] NSWCA 441
Holt v Protective Commissioner (1993) 31 NSWLR 227
In re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 128

Texts Cited:
-

Category: Procedural and other rulings
Parties: Plaintiff: SR
First Defendant: MD
Second Defendant: DP
Third Defendant: TM
Fourth Defendant: NT
Fifth Defendant: KA
Representation:
Counsel:
Plaintiff: M Pringle
First to Fourth Defendants: L Ellison SC and S Milanovic
Fifth Defendant: (Provisionally) L Ellison SC and S Milanovic
NSW Trustee: J Brouwer, Solicitor
Solicitors:
Plaintiff: Turner Freeman
First to Third Defendants: Novakovic Lawyers
Fourth Defendant: P Dobrich & Co.
Fifth Defendant: (Provisionally) Novakovic Lawyers

File Number(s): 2020/00256392

Judgment

INTRODUCTION

Upon an exercise of protective jurisdiction, responsive to a notice of motion filed by the plaintiff on 21 September 2020, on 18 November 2020 I made interlocutory orders (including an order for the appointment of the NSW Trustee as receiver and manager of a fund held in the trust account of the fourth defendant, the solicitor on the record for the fifth defendant) designed to facilitate: (a) an independent medical examination of the fifth defendant, directed towards provision of a report to the Court on her capacity for self-management; and (b) the appointment of a visitor to attend upon her to understand, and to report to the Court on, her current needs and her views about the conduct of her affairs generally.
The motion was heard on the basis of affidavit evidence on both sides of the record (to which evidence no objection was taken by any party) without cross examination of any deponent. The fifth defendant was not presented to the Court for examination.
The orders were made following…

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: [2020] NSWSC 1696
Decision Date: 27 November 2020

CaseChat Overview and Summary

The case of Re KA involved a vulnerable individual whose management was overseen by the Court. The matter was heard in the Supreme Court of [State], where the court was asked to make interlocutory orders to facilitate an independent medical examination and a visitor's report to assist in determining the individual's best interests. The central dispute was whether the proposed course of action was necessary and appropriate given the individual's circumstances.

The court had to decide whether it had the requisite jurisdiction to order these measures and whether they were proportionate and in the best interests of the individual. It also considered whether the proposed actions would respect the individual's rights and dignity. The court balanced the need for intervention with the individual's autonomy and the principle of least restrictive alternative.

After considering the evidence and submissions, the court found that it had the authority to make the orders. It determined that the proposed measures were necessary to adequately assess the individual's needs and were proportionate given the circumstances. The court concluded that the orders were in the individual's best interests, as they would enable a more informed decision-making process. The court subsequently made the interlocutory orders for the independent medical examination and the visitor's report.

Orders