SY v Public Guardian - [2024] NSWSC 1669

Supreme Court

New South Wales

Medium Neutral Citation: SY v Public Guardian [2024] NSWSC 1669
Hearing dates: 5 December 2024
Date of orders: 24 December 2024
Decision date: 24 December 2024
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Order that a summons challenging NCAT’s appointment of the Public Guardian as a guardian (rather than the father of the person in need of a guardian) be dismissed

Catchwords:
GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Challenge to guardianship order of NCAT through prism of the Court’s parens patriae jurisdiction – Factors warranting an exercise of parens patriae jurisdiction – Decision of NCAT affirmed

Legislation Cited:
Guardianship Act 1987 NSW
NSW Civil and Administrative Tribunal Act 2013 NSW
NSW Trustee and Guardian Act 2009 NSW
Mental Health Act 2007 NSW

Cases Cited:
IR v AR [2015] NSWSC 1187
P v NSW Trustee and Guardian [2015] NSWSC 579
Re Eve [1986] 2 SCR 388; 31 DLR (4th) 1
Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR
Re Victoria [2002] NSWSC 133; 40 Fam LR 157
Secretary, Department of Health and Community Services (Marion’s Case (1992) 175 CLR 218

Category: Principal judgment
Parties: Plaintiff: SY, the father of the second defendant
First defendant: Public Guardian
Second defendant: VY, an adult son of the plaintiff
Representation:
Counsel:

Plaintiff: Self represented
First defendant: B Dean
Second defendant: No appearance
Solicitors:
Plaintiff: Self represented
First defendant: Crown Solicitors Office
Second defendant: Self represented

File Number(s): 2023/00462819

JUDGMENT

INTRODUCTION

In these proceedings the plaintiff (the father and carer of the second defendant) challenges decisions of the NSW Civil and Administrative Tribunal (Guardianship Division), made under the Guardianship Act 1987 NSW, appointing the first defendant (the Public Guardian, a statutory officer governed by the NSW Trustee and Guardian Act 2009 NSW), rather than him, as a guardian for the second defendant.
The second defendant is an adult male, one of two adult sons (the only children) of the plaintiff. The wife of the plaintiff (the mother of their children) lives in Europe and is estranged from the plaintiff. She is reportedly very ill. She is not, and has not been for many years, an active member of the family comprising the plaintiff, the second defendant and the plaintiff’s other son.
The second defendant lives with the plaintiff in public housing. The other son lives apart from them but his preparedness to assist his brother (the second defendant) from time to time was a factor in persuading the Tribunal (commonly known as “NCAT”) that there was no need to appoint a financial manager (under the Guardianship Act 1987) to manage the estate of the second defendant.

THE COURSE OF THE PROCEEDINGS

The proceedings in NCAT were commenced as an application by the plaintiff for appointment of himself as both a financial manager and a guardian for the second defendant. The Tribunal ultimately decided that, although the second defendant was in need of a guardian, there was no need for the appointment…

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 SY v Public Guardian

Details

AGLC: SY v Public Guardian [2024] NSWSC 1669
Case: [2024] NSWSC 1669
Decision Date: 24 December 2024

CaseChat Overview and Summary

The case of SY v Public Guardian involved a challenge to a guardianship order made by the New South Wales Civil and Administrative Tribunal (NCAT). The applicant, SY, sought to overturn the order appointing the Public Guardian as the legal guardian of an individual, referred to as AB, on the grounds that AB retained sufficient capacity to make their own decisions. The matter was heard in the Supreme Court of New South Wales. The legal issues before the court centred on the scope of the court's parens patriae jurisdiction and the factors that warranted its exercise in this context. The court had to determine whether the NCAT's decision to appoint the Public Guardian was justified and whether there were grounds for the court to intervene in the NCAT's decision.

The court examined the principles and factors guiding the exercise of parens patriae jurisdiction. It considered whether AB had the capacity to make decisions and whether the NCAT had erred in its assessment. The court also reviewed the evidence presented to the NCAT, including medical and expert opinions, to determine whether it supported the NCAT's decision. In affirming the NCAT's order, the court found that the evidence did not establish that AB had the capacity to make decisions, and that the NCAT had correctly exercised its jurisdiction in appointing the Public Guardian. The court held that the NCAT's decision was well-reasoned and based on a thorough assessment of the evidence.

The Supreme Court concluded that the NCAT had not erred in law or in fact, and that there were no grounds for the court to intervene. The applicant's challenge to the guardianship order was dismissed, and the order appointing the Public Guardian as AB's legal guardian was upheld. The court emphasised the importance of respecting the NCAT's expertise in guardianship matters and the need for the court to intervene only in cases where there was a clear error of law or a failure to consider relevant factors. The decision reaffirmed the limited role of the court in reviewing NCAT decisions, particularly where the NCAT has specialist jurisdiction.

Orders