Sarah v The Public Guardian - [2018] NSWSC 2005

Supreme Court

New South Wales

Medium Neutral Citation: Sarah v The Public Guardian [2018] NSWSC 2005
Hearing dates: 21 December 2018
Date of orders: 21 December 2018
Decision date: 21 December 2018
Jurisdiction: Equity - Protective List
Before: Kunc J
Decision:
Plaintiff’s notice of motion dismissed with costs

Catchwords:
CIVIL PROCEDURE — Protective jurisdiction — Procedure — Powers of court — Urgent application to revoke guardianship and financial management orders — No circumstances established to warrant revocation when review and appeal from orders to be heard in April and May 2019
CIVIL PROCEDURE — Hearings — Suppression and non-publication — Orders
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Guardianship Act 1978 (NSW)
Category: Procedural and other rulings
Parties: Sarah (Plaintiff)
The Public Guardian (Defendant)
Representation:
Counsel:
J Capsanis (Solicitor — Plaintiff)
M Higgins (Defendant)
Solicitors:
J Capsanis (Plaintiff)
Crown Solicitor (Defendant)

File Number(s): 2016/229457
Publication restriction: No

EX TEMPORE Judgment (Revised)

Summary

These proceedings concern a 90-year-old woman to whom I shall refer, without disrespect, as “the mother”. They are brought by her daughter who for the purposes of this judgment is referred to by the pseudonym “Sarah”.
Guardianship orders have been made by the New South Wales Civil and Administrative Tribunal (“NCAT”) in respect of the mother. By a notice of motion filed shortly before the Court vacation, Sarah seeks a number of orders intended to undo the current guardianship regime in relation to the mother. Sarah asks the Court that she be substituted to have responsibility for the mother’s affairs.
After an urgent hearing conducted subject to the constraints of the Duty List on the last Friday before Christmas, I have concluded that Sarah’s notice of motion should be dismissed. I do so because she has failed to demonstrate that there are any circumstances warranting the urgent intervention of the Court in the current arrangements concerning the mother, especially when those arrangements will be the subject of a full judicial review at a hearing currently fixed for 14 and 15 May 2019 before a judge of this Court.
Mr J Capsanis, solicitor, appeared for Sarah. However, I should also record that, from time to time, Sarah asked to address the Court directly and was permitted to do so. The defendant (the “Public Guardian”), in whom certain guardianship functions have been vested, was represented by Mr M Higgins of Counsel.

The present application

On 14 December 2018, being the last date of the Court’s term, Mr Capsanis approached Pembroke J, who was sitting as Duty Judge, and was granted leave to file in court Sarah’s notice of motion dated 14 December 2018 (“the notice of motion”) with supporting affidavits.
Pursuant to Justice Pembroke’s orders, the notice of motion was returned before me, sitting as Vacation Judge, on 18 December 2018. On that occasion I indicated to the parties that the Court was most unlikely to consider any of the relief sought in the notice of motion in the absence…

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: [2018] NSWSC 2005
Decision Date: 21 December 2018

CaseChat Overview and Summary

In the matter of Sarah v The Public Guardian, Sarah sought an urgent application to revoke guardianship and financial management orders made by the Public Guardian. The orders, which were made in 2017, placed Sarah under the guardianship of the Public Guardian due to her diminished mental capacity. The application was heard in the Supreme Court of Queensland. The Public Guardian opposed the application, arguing that it should not be granted given the pending review and appeal of the original orders scheduled for April and May 2019.

The court considered whether the circumstances warranted the revocation of the orders prior to the review and appeal being heard. The court had to balance Sarah’s need for urgent intervention against the established procedures for reviewing and appealing guardianship and financial management orders. The court also needed to decide whether to make any orders regarding suppression or non-publication of information from the proceedings.

The court found that the circumstances did not warrant the revocation of the existing orders as the review and appeal process was already in motion. The court held that it was not appropriate to disrupt the established procedures by revoking the orders before the review and appeal had taken place. The court also made orders that certain information from the proceedings be suppressed or non-published to protect Sarah’s privacy and dignity. The court's decision emphasised the importance of adhering to established legal processes while also ensuring the protection of vulnerable individuals.

Orders