TOB - [2017] NSWCATGD 22

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: TOB [2017] NSWCATGD 22
Hearing dates: 30 June 2017
Date of orders: 30 June 2017
Decision date: 30 June 2017
Jurisdiction: Guardianship Division
Before: S Roushan, Senior Member (Legal)
Dr B McPhee, Senior Member (Professional)
J V Le Breton, General Member (Community)
Decision:
1. A guardianship order is made for TOB.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 June 2017.

4. This is a limited guardianship order giving the guardian(s) custody of TOB to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access TOB has to others and the conditions of access.

b) Accommodation

To decide where TOB may reside.

c) Services

To make decisions about services to be provided to TOB.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring TOB to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:
GUARDIANSHIP – application for guardianship order – person in need of a guardian – best interests – consideration of who to appoint as guardian – subject person’s views – Public Guardian appointed
INTERLOCUTORY – standing – does the Western Sydney Local Health District have standing to apply for a guardianship order – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – is the Western Sydney Local Health District a “person”
Legislation Cited: Guardianship Act 1987 (NSW), ss 4, 9(1)(d), 14, 14(2), 15(3)
Interpretation Act 1987 (NSW), s 21
Cases Cited: IF v IG [2004] NSWADTAP 3
NEJ [2017] NSWCATGD 1
Category: Principal judgment
Parties: Mr TOB (subject person)
Ms Y (applicant)
Mr DPB (applicant)
Western Sydney Local Health District
Public Guardian
File Number(s): NCAT 2017/00197931
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).

REASONS FOR DECISION

Background

Mr TOB is a 51-year-old man who is currently an inpatient in the Brain Injury Unit at a Western Sydney Public Hospital. Prior to his admission to hospital, Mr TOB was living with his brother, Mr DPB, in Western Sydney and often spent time with his long-term friend, Mr HAI. Mr TOB’s sister, Ms PPB, resides with her husband in Brisbane.
The Tribunal understands that Mr TOB sustained a severe brain injury on 5 January 2017 as a result of a fall.
On 13 March 2017, the Tribunal appointed Ms PPB as Mr TOB’s financial manager.
On 9 June 2017, a guardianship application was received by the Tribunal from Ms Y, on behalf…

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 TOB

Details

AGLC: TOB [2017] NSWCATGD 22
Case: [2017] NSWCATGD 22
Decision Date: 30 June 2017

CaseChat Overview and Summary

In the case of TOB, the dispute involved an application for a guardianship order by the Western Sydney Local Health District, which sought to appoint a guardian for TOB, an individual in need of such an order. The court had to determine whether the applicant had standing to make such an application and to consider the best interests of TOB in appointing a guardian. The dispute centred on the interpretation of sections 9(1)(d) and 21 of the Guardianship Act 1987 (NSW) and the Interpretation Act 1987 (NSW), respectively, to ascertain if the Western Sydney Local Health District qualified as a person with a genuine concern for TOB's welfare.

The primary legal issue was whether the Western Sydney Local Health District possessed standing to apply for a guardianship order under section 9(1)(d) of the Guardianship Act 1987 (NSW). This required consideration of whether the District had a genuine concern for TOB's welfare and if it qualified as a "person" under section 21 of the Interpretation Act 1987 (NSW). Additionally, the court needed to determine who should be appointed as TOB's guardian, taking into account TOB's views and the best interests of the individual.

The court found that the Western Sydney Local Health District had standing to apply for the guardianship order as it demonstrated a genuine concern for TOB's welfare. In determining the best interests of TOB, the court considered the views of TOB and ultimately appointed the Public Guardian as TOB's guardian. The court issued a guardianship order that would last for twelve months from 30 June 2017, which included limited functions for the guardian, such as deciding on TOB's access to others, accommodation, and services. The court also stipulated that the guardian must take reasonable steps to involve TOB in the decision-making process and consider his views before making significant decisions.

The court's final orders included the appointment of the Public Guardian as TOB's guardian, with specific functions and conditions to be followed. This decision underscored the importance of considering the individual's views and best interests in guardianship matters, while also recognising the role of concerned parties in initiating such proceedings.

Orders

Orders of the court

1. A guardianship order is made for TOB.

2. The Public Guardian is appointed as the guardian.

3. This is a continuing guardianship order for a period of 12 months from 30 June 2017.

4. This is a limited guardianship order giving the guardian(s) custody of TOB to the extent necessary to carry out the functions below.

FUNCTIONS:

5. The guardian has the following functions:

a) Access

To decide what access TOB has to others and the conditions of access.

b) Accommodation

To decide where TOB may reside.

c) Services

To make decisions about services to be provided to TOB.

CONDITIONS:

6. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring TOB to an understanding of the issues and to obtain and consider his views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	TOB [2017] NSWCATGD 22
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	30 June 2017
Jurisdiction:	Guardianship Division
Before:	S Roushan, Senior Member (Legal) Dr B McPhee, Senior Member (Professional) J V Le Breton, General Member (Community)
Decision:	1. A guardianship order is made for TOB. 2. The Public Guardian is appointed as the guardian. 3. This is a continuing guardianship order for a period of 12 months from 30 June 2017. 4. This is a limited guardianship order giving the guardian(s) custody of TOB to the extent necessary to carry out the functions below. FUNCTIONS: 5. The guardian has the following functions: a) Access To decide what access TOB has to others and the conditions of access. b) Accommodation To decide where TOB may reside. c) Services To make decisions about services to be provided to TOB. CONDITIONS: 6. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring TOB to an understanding of the issues and to obtain and consider his views before making significant decisions.
Catchwords:	GUARDIANSHIP – application for guardianship order – person in need of a guardian – best interests – consideration of who to appoint as guardian – subject person’s views – Public Guardian appointed INTERLOCUTORY – standing – does the Western Sydney Local Health District have standing to apply for a guardianship order – consideration of s 9(1)(d) of the Guardianship Act 1987 (NSW) – “genuine concern for the welfare of the person” – consideration of s 21 of the Interpretation Act 1987 (NSW) – is the Western Sydney Local Health District a “person”
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 9(1)(d), 14, 14(2), 15(3) Interpretation Act 1987 (NSW), s 21
Cases Cited:	IF v IG [2004] NSWADTAP 3 NEJ [2017] NSWCATGD 1
Category:	Principal judgment
Parties:	Mr TOB (subject person) Ms Y (applicant) Mr DPB (applicant) Western Sydney Local Health District Public Guardian
File Number(s):	NCAT 2017/00197931
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).