Re Stefania

[2011] NSWSC 1603

Supreme Court

New South Wales

Medium Neutral Citation:	Re Stefania [2011] NSWSC 1603
Hearing dates:	28 November 2011
Decision date:	28 November 2011
Jurisdiction:	Equity Division - Protective List
Before:	White J
Decision:	Order that the summons be dismissed with costs.
Catchwords:	GUARDIANSHIP - protected persons - financial management - interim financial management orders - appeal from decision of Guardianship Tribunal as of right on question of law - Guardianship Act 1987, Pt 3A - whether Guardianship Tribunal can make interim financial management order under Pt 3A, Guardianship Act 1987 if it has already made an interim financial management order in respect of same person's estate - person may be the subject of an application for a financial management order, including interim financial management order, whether or not the person has previously been the subject of such an application: Guardianship Act 1987, s 25J(1)
Legislation Cited:	NSW Trustee and Guardian Act 2009 Guardianship Act 1987 Interpretation Act 1987
Category:	Principal judgment
Parties:	1st Plaintiff (name suppressed) 2nd Plaintiff (name suppressed) 3rd Plaintiff (name suppressed) Guardianship Tribunal (1st Defendant) 2nd Defendant (name suppressed) NSW Trustee & Guardian (3rd Defendant
Representation:	M Maconachie (Plaintiffs) D Currie (Defendants) Barwick Boitano Lawyers (Plaintiffs) Crown Solicitors Office (1st Defendant) Coutts Conveyancing & Legal Services (2nd Defendant) NSW Trustee & Guardian (3rd Defendant)
File Number(s):	2011/349700

Judgment

1. HIS HONOUR : I direct that these proceedings be known as " Re Stefania " and that there be no publication that would tend to indicate the identity of the first plaintiff.

1. These proceedings concern the making of interim financial management orders by the Guardianship Tribunal in proceedings concerning the first plaintiff. The issue is whether the Guardianship Tribunal can make more than one interim financial management order. The matter first came before the Tribunal on 12 July 2011. The Tribunal recorded that the first plaintiff is an 80-year-old widowed woman. After setting out information concerning her living arrangements, her family, some medical history, her estate and the nature of the application, the Tribunal sought to address questions which arose in relation to the financial management of the first plaintiff's affairs. There was another application before the Tribunal at that time in relation to guardianship, but that is of no present relevance.

1. The Tribunal noted that there were two impediments before it was able to decide whether the first plaintiff was incapable of managing her affairs. The first was the need for an Italian interpreter with knowledge of the Calabrese dialect to assist the plaintiff to present her ideas to the Tribunal and to understand what others were saying. The second impediment was that only a report of the first plaintiff's general practitioner was available at that time.

1. The Tribunal took the view that a more appropriate way of determining her decision-making capacity was for the first plaintiff to be assessed by a geriatrician. It was unable to form a concluded view as to whether or not the first plaintiff was incapable of managing her affairs, but considered that there was a need for interim orders because of concern held about the involvement of family members in the first plaintiff's finances.

1. The Tribunal adjourned the proceedings for approximately three months. It ordered that the estate of the first plaintiff be subject to management under the NSW Trustee and Guardian Act 2009. It committed the management of the estate of the first plaintiff to the NSW Trustee and it ordered that " This is an interim financial management order for a period of 3 months from the date of this Order ". No challenge is made to those orders.

1. The matter came before the Tribunal again on 10 October 2011. Again there were issues concerning the provision of a qualified interpreter and the adequacy of the medical evidence. An interpreter was available at the hearing, but the Tribunal recorded that on closer questioning, the interpreter acknowledged that she was not competent to interpret the Calabrese dialect, although she did have some understanding of it.

1. The Tribunal recorded that written submissions provided for the hearing had indicated that the first plaintiff's statements and actions for a time had been contradictory. The Tribunal considered it essential to be able to converse with the first plaintiff in order to understand why she had changed her mind in relation to matters, to hear from her regarding her understanding of a power of attorney she signed earlier in 2011 and to hear her reasons for deciding to sell a block of vacant land.

1. The Tribunal concluded that it was necessary to adjourn the hearing to ensure that the first plaintiff was accorded procedural fairness and said that it was essential that an interpreter who spoke the Calabrese dialect be available to assist the first plaintiff.

1. The Tribunal was also not satisfied in relation to the medical evidence provided. It referred to findings of a geriatrician but noted that his report gave no indication of what tests had been administered, or what information or documentation the geriatrician had available to him or on which he relied in order to reach his conclusions. It said that it needed a comprehensive assessment by a geriatrician in relation to matters it identified.

1. Over the objection of the solicitor for the plaintiffs the Tribunal made a further interim financial management order for a period of three months, and adjourned the proceedings again. It gave reasons for the view that it was entitled to make a second interim financial management order. It drew a contrast between the provisions of the Act dealing with financial management orders, and provisions of the Guardianship Act 1987 dealing with temporary guardianship orders. It said:

" Unlike s 18(3) of the Act which provides that a temporary guardianship order may be renewed only once, there is no similar provision in section 25H of the Act concerning the making of more than one interim financial management order. However it is clear that the Act does not expressly prohibit the making of more than one interim financial management order. "

1. The Tribunal said that applying the principles in s 4 of the Guardianship Act , it was not in the first plaintiff's best interests to allow the interim financial management order to come to an end on 12 October 2011, and was satisfied both that it had jurisdiction to make the further interim financial management order and that it was in the best interests of the first plaintiff to do so.

1. This appeal is under s 67(1) of the Guardianship Act . It is an appeal as of right on a question of law. The question is whether the Guardianship Tribunal can make an interim financial management order under Pt 3A of the Guardianship Act if it has already made an interim financial management order in respect of the same person's estate, or, alternatively, whether it can do so if the effect of the order is to extend the effective period of the interim financial management beyond the period specified in the first order.

1. A third question may arise, although it is not directly raised by the present application, namely, whether a second or subsequent interim financial management order can be made if the effect would be to extend the effective period of interim financial management beyond the period of six months provided in the first such order.

1. Part 3A of the Guardianship Act relevantly provides as follows:

" Part 3A Financial management

Division 1 Making of financial management orders

25D Definitions

In this Part:

financial management order means an order referred to in section 25E, and includes an interim financial management order.

protected person means a person whose estate (or part of whose estate) is subject to a financial management order that is in force.

25E Tribunal may make financial management orders

(1) The Tribunal may, in accordance with this Part, order that the estate of a person be subject to management under the NSW Trustee and Guardian Act 2009.

(2) The Tribunal may exclude a specified part of the estate from the financial management order.

(3) (Repealed)

25F When financial management order may be made

The Tribunal may make a financial management order subject to and in accordance with this Part:

(a) in connection with its making a guardianship order under Part 3 in respect of the person concerned, or

(b) following (or in the course of) proceedings under Part 3 in respect of the person, being proceedings in which it decided not to make a guardianship order, or

(c) if an application for such an order has been made to it under section 25I in respect of the person (whether or not an application for a guardianship order has also been made in respect of the person), or

(d) following (or in the course of) proceedings under section 36 of the Powers of Attorney Act 2003 in respect of an enduring power of attorney given by the person, being proceedings in which it has decided not to make an order under that section.

25G Grounds for making financial management order

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person's behalf, and

(c) it is in the person's best interests that the order be made.

25H Interim financial management orders

(1) Despite section 25G, the Tribunal may, in relation to any proceedings before it under Part 3 or this Part (including proceedings arising out of the operation of section 6K (3) or section 37 (1) of the Powers of Attorney Act 2003), make a financial management order for a specified period not exceeding 6 months (an interim financial management order ), pending the Tribunal's further consideration of the capability of the person to whom the order relates to manage his or her own affairs.

(2) An interim financial management order may be made only in respect of a person:

(a) who is under guardianship, or

(b) who is the subject of an application under Part 3 or this Part.

(3) If the further consideration of the capability of the person to whom the interim financial order relates to manage his or her own affairs is not completed before the expiry of the period specified in the order, the order is taken to be revoked on that expiry.

25I Application to Tribunal for a financial management order

...

(2) An application must specify the grounds on which it is claimed that the person the subject of the application is not capable of managing his or her own affairs.

...

25J Subsequent applications

(1) A person may be the subject of an application under section 25I whether or not the person has previously been the subject of such an application.

(2) The Tribunal may make a financial management order in respect of a person whose capability to manage his or her own affairs has previously been considered by the Tribunal even though there may have been no change in that capability since it was last considered by the Tribunal.

...

25M Tribunal may commit estate of protected person to management

(1) If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order:

(a) appoint a suitable person as manager of that estate, or

(b) commit the management of that estate to the NSW Trustee.

...

Division 2 Review and revocation of financial management orders

25N Review of financial management orders

(1) The Tribunal may order that a financial management order be reviewed within a specified time.

(2) The requirement for a review may be contained in the financial management order or in a subsequent order.

...

(4) The Tribunal:

(a) may, at any time on its own motion, and

(b) must, on an application under section 25R for revocation or variation of the order,

review a financial management order.

(5) If a financial management order would cease to have effect before the completion of such a review, the order is taken to be extended until the completion of the review.

...

25P Action on review

(1) On reviewing a financial management order under section 25N, the Tribunal must vary, revoke or confirm the order.

(2) The Tribunal may revoke a financial management order only if:

(a) the Tribunal is satisfied that the protected person is capable of managing his or her affairs, or

(b) the Tribunal considers that it is in the best interests of the protected person that the order be revoked (even though the Tribunal is not satisfied that the protected person is capable of managing his or her affairs).

..."

1. Part 3 of the Act, to which reference is made in s 25H(ii)(b) deals with applications for guardianship orders.

1. Section 8 of the Interpretation Act 1987 provides that a reference to a word or expression in the singular form includes a reference to a word or expression in the plural form.

1. Counsel for the plaintiffs submits that in s 25H, Parliament did not intend that the words " a financial management order " should be capable of being read in the plural. Counsel says that the contrary intention can be gleaned from the section. If successive interim financial management orders could be made then, at least on one view, successive orders for periods of six months, or periods up to six months, could be made, and the intention to limit interim financial management periods could be easily defeated.

1. Counsel emphasised that under s 25H(3), Parliament provided for interim financial management orders to be revoked when they expired, even though the further necessary consideration of the capability of the person to manage his or her own affairs remain uncompleted. This, it was said, showed Parliament's intention that there be only a limited regime for the making of interim financial management orders, consistently with the principle that people's liberties should be interfered with as little as possible.

1. It was submitted that s 4 is consistent with this construction of the legislation, as para 4(b) provides that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities, to observe the principle that " the freedom of decision and freedom of action of such persons should be restricted as little as possible ", and by para 4(f) " such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their ... financial affairs. "

1. However, in my view it is not possible so to read the legislation. An application for a financial management order, whether it be an interim financial management order or not, is made under s 25I. Section 25J(1) provides that a person may be the subject of an application under s 25I whether or not the person has previously been the subject of such an application.

1. It seems to me that without the need to have recourse to s 8 of the Interpretation Act , Pt 3A expressly provides for the making of successive applications for financial management orders as defined in s 25D, that is, as including interim financial management orders.

1. Section 25H is not directed to how many applications for orders can be made. Rather, it is directed to the kind of order that can be made, and restricts the period of operation of an interim financial management order. Consistently with s 25J and consistently with s 8(b) of the Interpretation Act, the Tribunal can make more than one interim financial management order in respect of a particular person.

1. Nor would the construction contended for by the plaintiffs be consistent with a purposive application. This very case shows why it may be necessary, in the interests of a person who may be incapable of managing his or her own affairs, that there should be power in the Tribunal to make successive interim financial management orders. Other examples quite readily spring to mind. For example, the Tribunal might appoint a suitable person other than the NSW Trustee as interim financial manager. If that person were to die after accepting the appointment, it would be necessary for there to be a fresh application and a fresh interim financial management order.

1. Counsel suggested that that situation could be dealt with by review of the initial order. I doubt that that is so. Under s 25P, on reviewing a financial management order under s 25N, the Tribunal must vary, revoke or confirm the order. In the hypothetical case of an interim financial manager dying, what would be needed would not be simply a variation, revocation or confirmation of the earlier order, but the making of a fresh order. I think the general principles in s 4 are consistent with Pt 3A having such an operation.

1. Nor do I see in s 25H a requirement that the entire period of interim financial management not exceed six months. An interim financial management order may not exceed six months. It does not follow that, either immediately after the six-month period expires, or before it expires, a fresh application for a further interim financial management order could not be made and considered.

1. This case again provides an illustration as to why that could be necessary. If, for example, on the resumption of the hearing, which I am told is expected to take place in January, the interpreter then provided is not sufficiently qualified, or falls sick on the day, and somebody else cannot be found to step in who is adequately qualified, then it would be necessary in the interests of the first plaintiff that the Tribunal be able to continue effectively the period of interim financial management.

1. In my view, the legislative purpose to be found in s 25H is that where an application for an interim financial management order is made, the matter must be kept before the Tribunal.

1. For these reasons I am of the view that the Tribunal has power to make the orders which it did on 12 October 2011. I order that the summons be dismissed.

[Parties addressed on costs.]

1. The plaintiffs submit that the first defendant ought to have filed a submitting appearance. He was a party before the Tribunal, as were the second and thirds plaintiffs in addition to the first plaintiff. In my view he was not only entitled to be joined but he was entitled to resist the relevant suit. I order that the plaintiffs' pay the defendants' costs.

1. However, a question arises as to whether the costs should be borne by the first plaintiff. There is a question as to whether the proceedings as brought by her were competent. The question as to whether she was a person under a legal incapacity within the meaning of the Uniform Civil Procedure Rules has not been addressed. At the moment, I simply note that there may be a question about that matter. If any party does seek to agitate it then they can be at liberty to restore the matter by arrangement with my associate.

1. The order is that the summons be dismissed with costs.

Decision last updated: 21 December 2011