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

1. 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.

2. 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.

3. 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

4. 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 of a financial manager.

5. After an initial adjournment of the financial management application (at a time when the Public Guardian was appointed as the second defendant’s guardian for a limited period and to allow further consideration of the second defendant’s needs) the application was dismissed. The plaintiff does not challenge that dismissal.

6. The plaintiff challenges only the decision made by the Tribunal on 12 April 2024 (upon a review of the Public Guardian’s initial limited appointment of 14 December 2023) to confirm the Public Guardian in the office of guardian and not to appoint him as a guardian.

7. The plaintiff is, and has been throughout these proceedings, a self-represented litigant. He has medical training, and invites the Court to address him as “Doctor”, but he is not registered as a medical practitioner in NSW.

8. He presents to the Court, as to the Tribunal, as a person who has substantial insight into the medical condition of the second defendant and a zealous desire to participate in, if not to be the dominant person responsible for, the treatment of his son.

9. As events have unfolded, the subject of the plaintiff’s challenge to the Tribunal’s guardianship decision(s) heard by me on 5 December 2024, is the decision made by NCAT on 12 April 2024. A transcript of the hearing conducted by the Tribunal on 12 April 2024 is in evidence before the Court.

10. The hearing of proceedings before me was conducted on the basis of the plaintiff’s further amended summons dated 20 May 2024.

11. It is not entirely clear on the face of any originating process filed by the plaintiff in these proceedings (a summons, twice amended) whether the plaintiff’s challenge to the Tribunal’s decision of 12 April 2024 (upon a review by the Tribunal of its decision of 14 December 2023) is an appeal under clause 14 of schedule 6 of the Civil and Administrative Tribunal Act 2013 NSW (“the NCAT Act”) or an application to the Court for an exercise of its inherent protective jurisdiction, sometimes described as its parens patriae jurisdiction.

12. Clause 14 of schedule 6 of the NCAT Act is in the following terms (with emphasis added):

“14   Appeals to Supreme Court under this Part

(1)   A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision—

(a) in the case of an interlocutory decision of the Tribunal—with the leave of the Court, or

(b) in the case of any other kind of decision—as of right on any question of law, or with the leave of the Court, on any other grounds.

Note—

See also section 84 (Practice and procedure for appeals to courts under this Act).

(2)   An appeal under this Part is to be instituted—

(a) in the case of an ancillary or interlocutory decision of the Tribunal—within the period ending 28 days after the relevant decision has been made, or

(b) in any other case—within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to

appeal, or

(c) within such further time as the Supreme Court may, in any case, allow.

(3)   The Supreme Court in an appeal under this Part may—

(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

(4)   In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders

that provide for any one or more of the following—

(a) the decision under appeal to be confirmed, affirmed or varied,

(b) the decision under appeal to be quashed or set aside,

(c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it,

(d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court.

(5)   Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.”

13. Section 84 of the NCAT Act (to which a “note” to clause 14(1) refers) adds nothing material to a determination of these proceedings.

14. The plaintiff commenced proceedings in this Court by a summons filed on 21 December 2023, amended on 9 February 2024.

15. On 19 February 2024 I made an order, subject to further order, that, pursuant to clause 14(5) of Schedule 6 to the Civil And Administrative Tribunal Act 2013, and, subject to the Court’s orders, the stay for which clause 14(5) provides be lifted.

16. On the same occasion, and for the purpose of facilitating the work of the Public Guardian, I made an order, subject to further order, that the Public Guardian be appointed as a committee of the person of the second defendant with functions limited to those described in the guardianship order made by NCAT on 14 December 2023.

17. The desirability of that exercise of the Court’s protective jurisdiction arose from the fact that, at the time of the Tribunal’s hearing on 14 December 2023, the second defendant was overseas, his whereabouts unknown. A factor in the Tribunal’s determination to appoint a guardian, and a factor in my decision to reinforce NCAT’s decision by an exercise of its inherent jurisdiction (as explained in IR v AR [2015] NSWSC 1187), was that it was hoped that the existence of guardianship orders affecting the second defendant would aid inquiries then being made (ultimately fruitful) for the second defendant’s safe return to the care of the plaintiff in Sydney.

18. As it happened, the second defendant’s sojourn overseas (justified by him as an attempt to evade his mental health treatment regime in NSW) ended in an engagement with mental health authorities overseas.

19. The second defendant, as explained by the plaintiff, declined to appear at the final hearing of these proceedings. He did however twice appear personally before the Court at directions hearings held by me on 19 February 2024 and 9 April 2024. On each occasion he contended that he does not need a guardian but, if it is found that he does need a guardian, the plaintiff is not a suitable person to act in that office.

20. The plaintiff maintains that he has a good personal relationship with the second defendant when his son is properly medicated but, when the son is not properly medicated, he turns against his father.

21. A report of the Public Guardian dated 4 April 2024 (filed in Court on 8 April 2024), prepared pursuant to a direction made by me on 19 February 2024, was made available to each of the plaintiff and the second defendant for their consideration.

22. In that report the Public Guardian expressed the view that the second defendant is a person in need of a guardian and intimated that at the then proposed review hearing of the Tribunal on 12 April 2024, he intended to recommend that the limited guardianship order made on 14 December 2023 be renewed and varied for a period of 12 months, renewable.

23. At the directions hearing held on 9 April 2024, noting that the plaintiff and the Public Guardian each contended that, despite the second defendant’s view that he did not require a guardian, he was in fact in need of a guardian, I expressed an opinion that, in the best interests of the second defendant, NCAT should proceed with all due dispatch to entertain on the merits the question whether the guardianship order of 14 December 2023 should be renewed and a financial management order should be made, if that application be pressed.

24. In the course of preparing the report to court filed on 8 April 2024 the Public Guardian had made inquiries of the second defendant’s only sibling, his brother, who declined an opportunity to be appointed as guardian. That, in a practical sense, crystallised the issue of identification of any guardian to be appointed by the Tribunal: either the plaintiff or the public guardian.

25. In order to facilitate NCAT’s proposed hearing on the merits, on 9 April 2024 I made orders to the following effect:

“[14]   ORDER, subject to further order, that the parties to these proceedings are at liberty to publish to NCAT for the purpose of proceedings relating to the second defendant in NCAT any documents of record in these proceedings, including the Report of the Public Guardian filed on 8 April 2024 in the transcript of proceedings before the Court.

[15] NOTE the provisions of section 15(1)(b) and section 22 of the Guardianship Act 1987.

[16] NOTE that, for the purpose of section 15(1)(b) of the Guardianship Act, the Court records its consent to a guardianship order being made by NCAT (should NCAT determine to make such an order) notwithstanding that on 19 February 2024 the Court (by order 9) appointed the Public Guardian as a committee of the person of the second defendant.

[17] ORDER that order 9 of the orders made by the Court on 19 February 2024 be discharged upon the determination by NCAT of the question whether the second defendant should be made the subject of a guardianship order, to the intent that (as contemplated by section 22 of the Guardianship Act) if NCAT makes a guardianship order, order 9 of the Court’s orders of 19 February 2024 shall cease to have effect and, likewise, if NCAT determines that no guardianship order should be made, the Court’s order will nevertheless be discharged, without prejudice to such, if any, entitlement any interested person may have to apply to the Court for fresh protective orders affecting the second defendant.”

26. Section 15(1)(b) of the Guardianship Act is to the effect that, in the case of a person who is the subject of an order made by the Court, in the exercise of its jurisdiction with respect to the guardianship of persons, the Tribunal “shall not” make a guardianship order in respect of the person unless the Court consents to the making of the order.

27. Section 22 of the Guardianship Act provides that “[on] the making of a guardianship order [by the Tribunal] in respect of a person the subject of an order made by [the Court] in the exercise of its jurisdiction with respect to the guardianship of persons, the order made by the [Court] shall cease to have effect.”

28. On 15 April 2024, at a directions hearing of the current proceedings, I was informed that NCAT had on 12 April 2024:

1. made a guardianship order in relation to the second defendant in favour of the Public Guardian; and

2. dismissed the application of the plaintiff for financial management order in relation to the second defendant.

29. At that directions hearing, I granted the plaintiff leave to file a further amended summons challenging the decisions of NCAT on 12 April 2024. I also ordered that any stay that may be triggered by the filing of the plaintiff’s further amended summons, pursuant to clause 14(5) of Schedule 6 to the NCAT Act, not come into effect.

30. At the hearing of the proceedings on 5 December 2024 I made two procedural orders expressed to be “for more abundant caution”. The first was to the effect that such, if any, stay as may have operated in respect of the confirmatory order made by NCAT on 12 April 2024 be lifted. The second was to the effect that any stay otherwise operative as a consequence of the plaintiff’s inclusion in his appeal of a challenge to the confirmatory order made by NCAT on 12 April 2024 be taken to have been lifted on and from the date the plaintiff’s further amended summons was filed.

THE PLAINTIFF’S PRIMARY CONCERN

31. The plaintiff did not challenge the lifting of any stay upon the operation of NCAT’s decisions pending the appeal. His concern, throughout the conduct of proceedings in this Court and it seems in the Tribunal, has been to be acknowledged as the person best able to advocate for the second defendant in his son’s engagement with the NSW health system.

32. That is really the essence of his case. He acknowledges that neither he nor his son has, or has access to, resources necessary for the proper medical treatment of the second defendant. His desire to be clothed with the office of a guardian for the second defendant is a product, in part, of his frustration in not being (according to his perception) listened to by public health professionals.

33. That that is the primary concern of the plaintiff is perhaps confirmed by the fact that he speaks highly of the current person nominated as his son’s “treating doctor” in a Community Treatment Order (made under the Mental Health Act 2007 NSW) currently operative as against the second defendant.

THE GUARDIANSHIP ORDER UNDER CHALLENGE

34. The guardianship order of 12 April 2024 under challenge in the current proceedings is to the following effect:

“The guardianship order for [the second defendant] made on 14 December 2023 has been reviewed. The order now is as follows:

1   The Public Guardian is appointed as the guardian.

2   This is a continuing guardianship order for a period of 18 months from 12 April 2024.

3   This is a limited guardianship order, giving the guardian(s) [sic] custody of [the second defendant] to the extent necessary to carry out the functions below.

FUNCTIONS:

4   The Guardian has the following functions:

1. Accommodation

To decide where [the second defendant] may reside.

2. The Guardian may authorise others, including members of NSW Police and the Ambulance Service of New South Wales to:

1. take [the second defendant] to a place approved by the Guardian.

2. keep them [sic] at that place.

3. return them [sic] to that place should [they] leave it.

3. Health care

To decide where [the second defendant] may receive.

4. Services

To make decisions about services to be provided to [the second defendant].

5. Travel

To make decisions about whether or not [the second defendant] can travel to any place outside Australia.

6. Passport

To make a decision about whether or not the passport of [the second defendant] should be surrendered to the Guardian or some other authority the Guardian nominates pending a decision by the Guardian concerning travel.

CONDITIONS:

5   The condition of this order is:

7. Standard Condition

In exercising this role the Guardian shall take all reasonable steps to bring [the second defendant] to an understanding of the issues and to obtain and consider their [sic] views before making significant decisions.”

35. Lest silence be taken as acquiescence, I record my disquiet that formal orders of a court or tribunal may be expressed in terms that (I assume, in this case, intentionally) substitute plural pronouns for the singular in a case in which there is no suggestion that the (single) person referred to is otherwise than a male.

36. The order of a court or tribunal must be expressed with precision and be able to be read by anybody, if need be, without reference to extrinsic materials such as underlying reasons for decision. If there is, in a particular case, a need to distinguish between genders and grammatical forms the better course would be to make that fact explicit on the face of an order so that a casual reader of the order is not misled, confused or offended.

37. Whatever may be the fashion in literary publications the orders of a court or tribunal need to be viewed through a different prism: that of a person who has to recognise, apply or be bound by them, not a niche audience.

38. An irony apparent on the face of the guardianship order made by NCAT in the current case, which illustrates the point, is the reference in paragraph 3 of the order to “guardian(s)” in a case in which there is but one guardian (the Public Guardian) appointed to the office of guardian.

CONSIDERATION

39. In technical terms, if treated as an appeal from the Tribunal’s guardianship order, the plaintiff’s further amended summons must be dismissed. He has not, either in that document or orally, applied to the Court under clause 14(1)(b) of Schedule 6 to the NCAT Act for a grant of leave necessary for a new hearing. Any right of appeal he may have is limited to a question of law. In no iteration of his summons has he identified a question of law for the Court’s consideration. Nor has he endeavoured to do so in his submissions to the Court.

40. Viewing the plaintiff’s challenge to the Tribunal’s decision through the prism of the Court’s parens patriae jurisdiction, a problem for the plaintiff is that that jurisdiction is reserved for “exceptional circumstances” (Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4^th) 1 at 17, approved by Secretary, Department of Health and Community Services (Marion’s Case (1992) 175 CLR 218 at 258; Re Victoria [2002] NSWSC 133; 40 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608) and, in the exercise of the jurisdiction, the Court is mindful of a need to support, not to subvert, the routine procedures of a specialist tribunal, such as is NCAT sitting as the Guardianship Division: P v NSW Trustee and Guardian [2015] NSWSC 579 at [116].

39. Acknowledging that the present case had its origins in unusual circumstances (because of the second defendant’s absence overseas at the time of the Tribunal hearing on 14 December 2023) and the Court was sufficiently concerned to re-enforce the orderly conduct of proceedings in the Tribunal by an exercise of inherent jurisdiction, this judgment has been prepared with the substantial merits of the plaintiff’s case in view upon an assumption that the present circumstances warrant an exercise of parens patriae jurisdiction notwithstanding that, by its orders of 12 April 2024, the Tribunal’s procedures have been regularly engaged in a hearing in which both the plaintiff and the second defendant participated.

40. The Court Book prepared by the Crown Solicitor’s Office (acting for the Public Guardian), in consultation with the plaintiff, presented to the Court a comprehensive record of the evidence relied upon on both sides of the record. The evidence received by the Court was admitted without objection and without cross examination in accordance with a protocol for the hearing earlier agreed between the plaintiff and the Public Guardian. Without objection on the part of the Public Guardian, the plaintiff’s oral submissions included “evidence from the bar table” directed to a Socratic engagement with the plaintiff’s concerns about the treatment of his son.

41. It is not necessary to summarise the evidence in detail. The short point is that the decision of the Tribunal under challenge in these proceedings is correct for the following reasons:

1. as both the plaintiff and the Public Guardian contend, the second defendant is a person in need of a guardian.

2. the strong preference of the second defendant is that his father not be appointed as his guardian.

3. without reflection on the good character of the plaintiff, he is not, at the present time, a suitable person to be appointed as his son’s guardian.

4. as his son’s carer and a “significant other”, the plaintiff is free to provide information about the second defendant’s circumstances to public health authorities and to make representations to them concerning the second defendant’s treatment.

44. The fact that the second defendant is a person in need of a guardian is amply demonstrated by his engagement with the mental health authorities in New South Wales and overseas during the currency of these proceedings (including a period of secure hospitalisation overseas and in NSW), his reluctance or inability to submit to supervised treatment, the deterioration of his mental health when not kept under supervision, his inability to support himself in the ordinary affairs of life without supervision and the necessity that he be treated by depot injection rather than oral medication. He has been diagnosed by many health professionals as suffering from schizophrenia.

45. Although the plaintiff disputes that diagnosis (and, in common with the second defendant himself, diagnoses the second defendant as suffering from Lyme Disease) he agrees that, whatever the precise diagnosis, the treatment is substantially the same.

46. The plaintiff is not, at the present time, a suitable person to be appointed as his son’s guardian because, not only is such an appointment unwelcome to the son, but the plaintiff has (by active criticism of public health professionals charged with treating the second defendant) rendered himself persona non grata with many health professionals with whom a guardian may be required to engage.

47. The Public Guardian is by far better placed than is the plaintiff, by reason of his own conduct, to make decisions affecting the second defendant which require an objective and orderly engagement with public health professionals.

48. The fact that, on his own evidence, the plaintiff has established a good working relationship with the second defendant’s current “treating doctor” (so described in the current community treatment order affecting the second defendant) demonstrates that he does not need to occupy the office of the guardian in order to be heard in the treatment of his son.

CONCLUSION

49. For these reasons, I order that the plaintiff’s further amended summons dated 20 May 2024 be dismissed.

50. The effect of that order is that the Tribunal’s orders of 12 April 2024 stand, with a continuing operation until 12 September 2025 or thereabouts.

51. No orders are made as to the costs of these proceedings, none having been sought by the Public Guardian and the plaintiff being a self-represented litigant.

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Decision last updated: 24 December 2024