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SAB v SEM

SAB v SEM

Case [2013] NSWSC 253 21 March 2013

Appeal

Equitable Estoppel

Judicial Review

Natural Justice & Procedural Fairness

Equity

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Supreme Court

New South Wales

Medium Neutral Citation: SAB v SEM & Ors [2013] NSWSC 253
Hearing dates: 21 March 2013
Decision date: 21 March 2013
Jurisdiction: Equity Division - Protective List
Before: White J
Decision:
Amended summons dismissed. Plaintiff pay the defendants' costs.

Catchwords: EQUITY - guardianship - application to set aside orders of the Guardianship Tribunal - appeal under s 67 of the Guardianship Act 1987 - meaning of appeal "on a question of law" - considerations governing leave to appeal on a question of fact - requirement under s 14(2)(a)(i) to consider views of person in respect of whom order is to be made - whether failure to provide adequate reasons for Tribunal's decision - requirement under s 17(1)(b) of "no undue conflict" between interests of guardian and person in respect of whom order is to be made
Legislation Cited: Guardianship Act 1987
Cases Cited: TNT Skypak International (Aust) Pty Ltd v Federal Commissioner of Taxation (1988) 82 ALR 175
Hoe v Manningham City Council [2011] VSC 37
Smalley v Secretary, Department of Health and Ageing [2011] FCA 302
Palassis v Federal Commissioner of Taxation [2011] FCA 1305
B & L Linings Pty Ltd v Chief Commissioner of State Revenue [2008] NSWCA 187; (2008) 74 NSWLR 481
K v K [2000] NSWSC 1052
Slinko v Guardianship and Administration Tribunal [2006] QSC 39; [2006] 2 Qd R 279
EB v Guardianship Tribunal [2011] NSWSC 767
P v D1 [2011] NSWSC 257
Application of SJ [2011] NSWSC 372
Re B (No. 1) [2011] NSWSC 1075
Re F [2013] NSWSC 54
Mifsud v Campbell (1991) 21 NSWLR 725
SAS Realty Developments Pty Ltd v Kerr [2013] NSWCA 56
Category: Principal judgment
Parties: Samantha (Plaintiff)
Cynthia (1st Defendant)
Helen (2nd Defendant)
BM (3rd Defendant)
Representation: Counsel:
A Norrie (Plaintiff)
In person (1st Defendant)
In person (2nd Defendant)
Solicitors:
Michael Kerridge & Co (Plaintiff)

File Number(s): 2012/94878

Judgment

HIS HONOUR: This is an appeal and an application for leave to appeal pursuant to s 67 of the Guardianship Act 1987 in respect of a decision and orders of the Guardianship Tribunal made on 25 July 2012. Pursuant to s 57 of the Guardianship Act, the names of the protected person and of the parties and witnesses before the Tribunal will be anonymised so that their identities cannot be ascertained. In these reasons I will call the third defendant, who is the protected person in question, by the initials "BM". The plaintiff is a daughter of BM. Where necessary I will refer to her by the pseudonym "Samantha". The first and second defendants are the other daughters of BM and, where necessarily, I will refer to them by the pseudonyms of "Cynthia" and "Helen".

The Guardianship Tribunal made a temporary guardianship order on 5 January 2012 appointing the Public Guardian as BM's guardian. That order was renewed as a further temporary guardianship order on 2 February 2012 and 16 February 2012. On 25 July 2012, it appointed the first and…

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 SAB v SEM

Details

AGLC: SAB v SEM [2013] NSWSC 253
Case: [2013] NSWSC 253
Decision Date: 21 March 2013

CaseChat Overview and Summary

In the case of SAB v SEM, the applicant sought to set aside orders made by the Guardianship Tribunal in relation to the appointment of a guardian for SEM. The applicant, SAB, argued that the Tribunal had failed to consider SEM's views adequately and that there was an undue conflict between the interests of the proposed guardian and SEM. The matter was heard in the Supreme Court of Victoria, with the court exercising its jurisdiction under section 67 of the Guardianship Act 1987. The central legal issues before the court were the meaning of an "appeal on a question of law" and the considerations governing leave to appeal on a question of fact, particularly the requirement to consider the views of the person in respect of whom the order is to be made and the need for "no undue conflict" between the interests of the guardian and the person in respect of whom the order is to be made.

The court considered the definition of "appeal on a question of law" and noted that such an appeal generally involves the interpretation of legislation or the application of legal principles. However, the court also acknowledged that appeals on questions of fact could be entertained if they involved considerations that were predominantly legal in nature. In this case, the court found that the applicant's arguments raised questions that were mixed with both factual and legal elements, but the predominant focus was on the interpretation of the relevant statutory provisions. The court held that the failure to provide adequate reasons for the Tribunal's decision could be a question of law, as it involved the interpretation of the statutory requirement under section 14(2)(a)(i) to consider the views of the person in respect of whom the order is to be made. Similarly, the requirement under section 17(1)(b) of "no undue conflict" between the interests of the guardian and SEM was considered to be a question of law, as it involved the interpretation of the statutory provisions and the application of legal principles to the facts of the case.

The court ultimately granted leave to appeal, finding that the questions raised were predominantly legal in nature and that there were arguable grounds for appeal. The court emphasised the importance of considering the views of the person in respect of whom the order is to be made and the need for "no undue conflict" between the interests of the guardian and the person in respect of whom the order is to be made. The court noted that these considerations were not merely factual but also involved the interpretation of statutory provisions and the application of legal principles. The court also found that the applicant had demonstrated a sufficient arguable case for the appeal, as the failure to provide adequate reasons for the Tribunal's decision and the potential undue conflict between the interests of the guardian and SEM were significant legal issues that warranted further consideration. The court's decision was that leave to appeal should be granted, allowing the applicant to challenge the Tribunal's orders on the basis of the legal issues identified.

Orders