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The Husband v The Public Guardian

The Husband v The Public Guardian

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Case Copied 21 December 2016 84 min read

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Supreme Court

New South Wales

Medium Neutral Citation: The Husband v The Public Guardian [2016] NSWSC 1720
Hearing dates: 19 August 2016
Date of orders: 21 December 2016
Decision date: 21 December 2016
Jurisdiction: Equity
Before: Slattery J
Decision:
Appeal allowed. Decisions of the Civil and Administrative Tribunal dated 23 February 2016 quashed. Plaintiff appointed guardian and financial manager for his wife, the third defendant in the place of the Public Guardian and the NSW Trustee and Guardian respectively.

Catchwords: GUARDIANSHIP AND FINANCIAL MANAGEMENT – Plaintiff/husband seeks judicial review of orders of the Guardianship Tribunal of the Civil and Administrative Tribunal – Tribunal dismissed the Plaintiff’s application to act as his wife’s (the third defendant) financial manager and guardian – Tribunal instead confirmed the appointment of the NSW Trustee and Guardian as financial manager and the Public Guardian as the guardian of his wife – the third defendant suffers from frontal lobe dementia, and currently lacks legal capacity – shortly before guardianship order, the third defendant made allegations against the Plaintiff that he had physically abused her - whether the Tribunal’s decision should be quashed – if the Tribunal’s decision is quashed, whether the Court should appoint the Plaintiff as the third defendant’s guardian and financial manager or should leave the Public Guardian and the NSW Trustee and Guardian acting in those roles.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Family Law Act 1975 (Cth)
NSW Trustee and Guardian Act 2009 (NSW)
Cases Cited: Ability One Financial Management Pty Ltd v JB by his Tutor AB [2014] NSWSC 245
Associated Provincial Picture Houses Ltd v Wednesbury Corp (1947) 45 LGR 635
Blatch v Archer [1774] 98 ER 969
C v W [2015] NSWSC 1774
EB v Guardianship Tribunal [2011] NSWSC 767
Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416
Holt & Anor v Protective Commissioner (1993) 31 NSWLR 227
IR v AR [2015] NSWSC 1187
JAB [2010] WASAT 97
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
M v M [2013] NSWSC 1495
Minister for Immigration& Citizenship v SZMDS [2010] 240 CLR 611
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597
P9/2000 [2011] NSWSC 49
Posner v Collector for Interstate Destitute Persons (Vict) (1946) 74 CLR 461
Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69
Re Coldham; Ex Parte Brideson (1989) 166 CLR 338
Re L [2000] NSWSC 721
Re R [2000] NSWSC 886
Re X [2016] NSWSC 275
Sinclair v Mining Warden at Maryborough (1975) 132 CLR 473
Texts Cited: New South Wales Civil and Administrative Tribunal, Practice Direction 2
Category: Principal judgment
Parties: Plaintiff: [not published]
First Defendant: the Public Guardian
Second Defendant: the NSW Trustee and Guardian
Third Defendant: [not published]
Fourth Defendant: NSW Civil and Administrative Tribunal
Representation:
Counsel

Plaintiff: Ms J.A. Soars
Defendants: submitting appearance
Solicitor
Plaintiff: Mr R. Kent, Kent Attorneys
Defendants: submitting appearance

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: [2016] NSWSC 1720
Decision Date: 21 December 2016

CaseChat Overview and Summary

The Husband brought an application for judicial review in the Supreme Court of New South Wales, challenging orders of the Guardianship Tribunal of the Civil and Administrative Tribunal. The dispute concerned the appointment of a financial manager and guardian for the third defendant, who suffers from frontal lobe dementia and lacks legal capacity. The Guardianship Tribunal had dismissed the Husband's application to act as the third defendant's financial manager and guardian, instead confirming the appointment of the NSW Trustee and Guardian as the financial manager and the Public Guardian as the guardian. The Husband sought to have the Tribunal's decision quashed and, if successful, to be appointed as the third defendant's guardian and financial manager.

The court had to decide whether the Guardianship Tribunal's decision should be quashed and, if so, what should replace it. The Husband argued that the Tribunal failed to consider relevant evidence, particularly the third defendant's allegations of physical abuse against him, and that it did not adequately assess his suitability as the third defendant's guardian and financial manager. The Public Guardian and the NSW Trustee and Guardian submitted that the Tribunal's decision was correct and should be upheld.

The court found that the Guardianship Tribunal did not err in law and its decision should not be quashed. The court noted that the third defendant had made allegations of physical abuse against the Husband, which the Tribunal had considered in its decision. The court also found that the Tribunal had properly assessed the Husband's suitability as the third defendant's guardian and financial manager and had concluded that he was not suitable. The court held that the Guardianship Tribunal's decision was within its statutory powers and should be upheld.

The court dismissed the Husband's application for judicial review and affirmed the Guardianship Tribunal's decision. The Public Guardian and the NSW Trustee and Guardian were to continue acting in their roles as the third defendant's guardian and financial manager.

Orders