Supreme Court New South Wales

• Medium Neutral Citation: G v W [2014] NSWSC 108
• Hearing dates: 17 February 2014
• Decision date: 25 February 2014
• Jurisdiction: Equity Division
• Before: Lindsay J

Decision

Order that the proceedings be dismissed

• Catchwords: GUARDIANSHIP - Guardianship Tribunal - Orders for revocation of appointment of enduring guardian and for appointment of a guardian - Appeal to court, limited to questions of law - Appeal dismissed
• Legislation Cited: Civil And Administrative Tribunal Act 2013 NSW: s 1 cl 3; Civil Procedure Act 2005 NSW, s 3(1); Guardianship Act 1987 NSW, s 6K(2)(b); Uniform Civil Procedure Rules 2005 NSW, r 7.13, 7.14(1),7.18(1)(a), 7.14(2), 14(2)(a), s 14(2)(b), s 17(1)(a)
• Cases Cited: A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [41]-[43] and [49]-[50]; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [226].; CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-F Ho v NSW Public Guardian [2013] NSWSC 1788 at [15]-[16]; Re An Incapable Person D [1983] 2 NSWLR 590 at 595; RH v CAH [1984] 1 NSWLR 694 at 708
• Texts Cited: -
• Category: Principal judgment
• Parties: Plaintiff (Daughter of person under guardianship); First Defendant (Person under guardianship); Second Defendant (Son of person under guardianship); Third Defendant (Daughter of person under guardianship)
• Representation: Counsel: EA Cohen (Plaintiff); G Salier (Tutor for First Defendant); M Gorrick (Second and Third Defendants); Solicitors: Warren & Warren (Plaintiff); G Salier Solicitor (Tutor for First Defendant); Rundle & Co (Second and Third Defendants)
• File Number(s): 2013/181939

Judgment

INTRODUCTION

1 The plaintiff appeals to the Court, pursuant to s 67 of the Guardianship Act 1987 NSW, from orders made by the Guardianship Tribunal on 17 May 2013.

2 In deference to s 57 of the Guardianship Act (limiting the publication of names of participants in Tribunal proceedings), the names of the parties are, in this Judgment, anonymised.

3 The Guardianship Tribunal was abolished on 1 January 2014 but, in effect, immediately reincarnated as the Guardianship Division of the Civil and Administrative Tribunal of NSW ("NCAT") established by the Civil and Administrative Tribunal Act 2013 NSW: schedule 1 clause 3.

4 Part 6 of the Guardianship Act (which governed the constitution and business of the Guardianship Tribunal) was repealed on the establishment of NCAT, with the consequence that s 67 (falling within Part 6) no longer operates at large.

5 Nevertheless, the orders of the Guardianship Tribunal under challenge in these proceedings, and the operation of s 67 as the vehicle for that challenge, remain in place by virtue of transitional provisions found in the Civil and Administrative Tribunal Act: schedule 1 clause 8.

6 The plaintiff commenced these proceedings in the Court on 17 June 2013. By schedule 1 clause 8 of the Civil and Administrative Tribunal Act, the proceedings are to be dealt with by the Court under s 67 of the Guardianship Act as if that section had not been repealed but, should the Court decide to make an order for remittal of the proceedings, the proceedings are to be remitted to NCAT.

7 The provisions of the Civil and Administrative Tribunal Act governing the business of the Guardianship Division of NCAT (schedule 6) are substantially similar to Part 6 of the Guardianship Act, now repealed.

8 Clause 14(1)(b) of schedule 6 to the Civil And Administrative Tribunal Act is, for present purposes, substantially similar to s 67(1) of the Guardianship Act before its repeal.

9 Section 67(1) was in the following terms:

"67 Appeals to the Supreme Court

(1) A party to a proceeding before the [Guardianship] Tribunal (whether under this or any other Act) may appeal to the Supreme Court from any decision of the Tribunal in that proceeding:

(a) as of right, on a question of law, or

(b) by leave of the Supreme Court, on any other question."

10 Although the plaintiff's formal claims for relief (in her "Further Amended Summons" filed on 20 December 2013) include an application for a grant of leave under s 67(1)(b), that application was abandoned on the hearing of the summons.

11 The reason for that abandonment resides in the fact that one of the orders (perhaps, for practical purposes, the main decision) of the Guardianship Tribunal under challenge in these proceedings (a Guardianship Order for the first defendant, appointing the second defendant as his guardian) was, on 17 May 2013, limited to operate for 12 months.

12 The plaintiff, sensibly, accepts that unless the Court can and should intervene "on a question of law", the most appropriate course is that any ongoing disputes about guardianship of the first defendant be left to NCAT. Cf, A by his Tutor Brett Anthony Collins v Mental Health Review Tribunal and Anor [2010] NSWSC 1363 at [41]-[43] and [49]-[50]; A (by his tutor Brett Collins) v Mental Health Review Tribunal (No 4) [2014] NSWSC 31 at [226].

13 The effect of the pendency of the current proceedings is that the orders of the Guardianship Tribunal under challenge have been stayed. Section 67(5) of the Guardianship Act, now repealed but operative in these proceedings, provided that "[subject] to any interlocutory order made by the Supreme Court, an appeal operates to stay the decision appealed against."

14 The Court has made no order under s 67(5) lifting the statutory stay of the Guardianship Tribunal's orders for which that provision provided.

The parties

15 The first defendant is an elderly man, a widower, now residing in an aged care facility in Sydney.

16 He has three (adult) children: two daughters and a son. One of those daughters, the plaintiff, is resident in Sydney. The other, the third defendant, is resident interstate. The son, the second defendant, is resident in Sydney.

17 The second and third defendants are in the same interest in the current proceedings, as they were in the Guardianship Tribunal. Together, they applied for revocation of an enduring guardianship appointment ostensibly made by their father, in favour of their sister, on 16 March 2012, and sought an appointment by the Tribunal of the second defendant, or the public guardian, as the first defendant's guardian.

18 On the second and third defendants' application to the Guardianship Tribunal, the plaintiff served as their contradictor. They, in turn, are her contradictors on her appeal to the Court.

19 The first defendant, personally, played no active role before the Guardianship Tribunal, though he was interviewed by the Tribunal and he had the benefit of separate representation pursuant to an order made by the Tribunal, for that purpose, pursuant to the Guardianship Act, s 58(3)(b).

20 The first defendant is a "person under a legal incapacity" within the meaning of the Civil Procedure Act 2005 NSW, s 3(1) and the Uniform Civil Procedure Rules 2005 NSW, r 7.13, with the consequence (for which UCPR r 7.14(1) and 7.18(1)(a) provide) that the Court has ordered that he be represented in these proceedings by a tutor.

21 Because the tutor is himself a senior solicitor, and was appointed at the request, and with the consent, of all parties to the proceedings other than the first defendant, an order was made under UCPR r 7.14(2) relieving him (and the estate of the first defendant) of an obligation, which he would otherwise have had under that rule, to instruct a solicitor to appear on his behalf in the proceedings.

22 Having satisfied himself that the interests of the first defendant would best be served by his leaving the questions in dispute to be litigated by the plaintiff (on the one hand) and the second and third defendants (on the other), he sought, and was granted, the Court's leave not to appear at the final hearing of the proceedings. He has, however, been kept informed of developments in the proceedings since his appointment.

The orders under challenge

23 The order(s) of the Guardianship Tribunal under challenge by the plaintiff, pursuant to s 67(1)(a) of the Guardianship Act, are those made, on 17 May 2013, to the following effect:

1. Order that the enduring guardianship appointment made by the first defendant on 16 March 2012 appointing the plaintiff as his enduring guardian is revoked.

2. Order that the application made by the second and third defendants for a review of that enduring guardianship appointment is treated as if it were an application under the Guardianship Act for a guardianship order for the first defendant.

3. Order that a guardianship order be made for the first defendant.

4. Order that the second defendant is appointed as the guardian.

5. Order that this is a continuing guardianship order for a period of 12 months from the date of these orders.

6. Order that this is a limited guardianship order giving the guardian custody of the first defendant to the extent necessary to carry out [specified] functions, including [the function of deciding] where the first defendant may reside.

24 At the hearing before the Guardianship Tribunal culminating in these orders there was a hot contest between the plaintiff and her siblings about the appropriateness of the plaintiff's choice of the aged care facility to which she moved their father, and where he has continued to reside. The Tribunal did not determine that controversy directly, but left it to the second defendant as the newly appointed guardian. By her appeal, the plaintiff has (on at least a superficial view of these proceedings) forestalled any change for nearly the whole year of the operation of the Tribunal's guardianship order.

25 The Guardianship Tribunal's written "Reasons for Decision", published in support of the orders under challenge, were provided to the solicitor for the plaintiff under cover of a letter from the Registrar of the Tribunal dated 2 July 2013.

The grounds for the plaintiff's challenge

26 The plaintiff's Further Amended Summons articulates 15 grounds of appeal, 10 of which are expressed in terms that the Guardianship Tribunal "erred in law".

27 Of those 10, eight are said to have involved an error by the Guardianship Tribunal in the exercise of a discretion. Of the remaining two, one is not so very far removed from the same territory in that it contends that the Tribunal failed to satisfy itself of something it was bound to satisfy itself about; and the other embraces a broad allegation that there was no evidence to support a factual finding that it was in the interests of the first defendant to have the enduring guardianship appointment of the plaintiff revoked or to have the second defendant appointed as guardian of the first.

28 The second and third defendants submit that, even if articulated in the form of an allegation of an error of law (referable, for example, to a failure to take into account a relevant consideration or an absence of evidence in support of a finding of fact) none of the grounds of appeal relied upon by the plaintiff can, when measured against the Guardianship Tribunal's Reasons for Decision and the decision-making process leading to the orders under challenge, properly be said to have identified a "question of law" (the focus for attention in the Guardianship Act, s 67(1)(a)) or any error of law on the part of the Tribunal.

29 On the hearing of the summons, counsel for the plaintiff confined herself, more or less, to submissions to the following effect:

(a) There was no evidence, or any proper basis, upon which the Guardianship Tribunal could have been satisfied (pursuant to the Guardianship Act s 6K(2)(b)) that it was in the best interests of the first defendant that the appointment of the plaintiff as his enduring guardian be revoked.

(b) In appointing the second defendant as guardian of the first defendant:

(i) the Tribunal did not properly have regard to the views of the first defendant (Guardianship Act s 14(2)(a)) or the importance of preserving the first defendant's existing family relationships (s 14(2)(b)); and

(ii) the Tribunal did not properly satisfy itself that the personality of the second defendant is generally compatible with that of the first defendant (s 17(1)(a)).

(c) In proceeding to a decision on the application(s) made to it by the second and third defendants, the Tribunal was deflected from its duty by an inquiry whether the first defendant had the mental capacity to appoint the plaintiff as his enduring guardian on 16 March 2012; concerns about whether the plaintiff had acted unilaterally in placement of the first defendant in the aged care facility in which he now resides; and a long-standing breakdown in the personal relationship of the plaintiff and her siblings - with the consequence that it did not pay sufficient regard to the close personal relationship between the plaintiff and the first defendant and his reliance upon her, over a long period, for personal care.

Consideration

30 I adopt as correct the summary of law, and practice, relating to appeals under s 67 of the Guardianship Act found in EB v Guardianship Tribunal [2011] NSWSC 767[181]-[210].

31 In this case it is apt to notice, in particular, the observation of Hallen AsJ that a section 67 appeal is not intended to serve as a second trial of an issue litigated in the Tribunal. It provides (together with the Court's general parens patriae jurisdiction) a means for supervision of work undertaken by the Guardianship Tribunal as a statutory tribunal entrusted with the primary task of deciding questions of guardianship: Re B (No 1) [2011] NSWSC 1075 at [58]-[61]; Re F (2013) NSWSC 54 at [5]-[10]; SAB v SEM [2013] NSWSC 253 at [3]-[10]; and Re H [2013] NSWSC 1384 at [19].

32 A formal identification in originating process of an error on a question of law, material to a decision of the Tribunal under challenge, is generally a necessary - but never a sufficient - condition for success on the hearing of an appeal under a provision such as s 67(1)(a). The substance is more important than the form. What is, generally, critically required is identification of a material error in the Tribunal's Reasons for Decision or its process of reaching that decision. An order might be erroneous in itself, but more often error lurks in underlying reasoning and processes. So it must be here. There is nothing exceptional in the terms in which the Tribunal expressed its decision(s).

33 Here, there is a disconnect between form and substance. At least some of the "errors of law" alleged in the plaintiff's Further Amended Summons can claim the form of an allegation of error on a question of law. However, the alleged errors find no real reflection in the record of the Tribunal, fairly read. That deficiency in the plaintiff's case invites criticism that the plaintiff's object has been to force the Court into a merits review of the Tribunal's deliberations or, at least, to delay implementation of the Tribunal's orders.

34 Upon a review of a decision of the Guardianship Tribunal, the Court deals with the matter broadly and fairly, and does not interfere if the Tribunal members have directed themselves, properly and fairly, to the facts, and have not gone wrong in law: K v K [2000] NSWSC 1052 at [14].

35 So approached, the plaintiff's summons must fail. Upon a fair reading of the Tribunal's Reasons for Decision, and ancillary materials, there is no basis for a determination that it erred in law in any of the respects advanced by the plaintiff.

36 To respond in detail to each of the plaintiff's grounds of appeal (including a catch-all "no evidence" ground) would be to regurgitate, in a freshly edited form, the Tribunal's Reasons for Decision. There is no necessity to do so. Sufficient to say, with the explanatory observations here made, that I am not satisfied that the Tribunal's orders are affected by any appellable error.

37 The primary attention given by the plaintiff, in argument on the hearing of her appeal, to the welfare and interests of the first defendant as a paramount consideration (to paraphrase the Guardianship Act, s 4(a)) was clearly in the minds of Tribunal members in the process of making a decision, and at the time of decision. It, with the first defendant's welfare and interests firmly in mind, interviewed the first defendant personally and entertained submissions made by a separate representative on his behalf.

38 There is no basis upon which the Court could properly conclude that the Tribunal misdirected itself as to the tasks it was required to perform, or as to the legislation governing its performance of those tasks.

39 On a fair reading of the record, it cannot fairly be said that the Tribunal was deflected by its concern about the first defendant's capacity to appoint the plaintiff as his enduring guardian, or problems in dealing with the person of the first defendant arising from the breakdown in personal relationships between his children. It is not apparent, as the plaintiff urged upon the Court, that the Tribunal simply favoured the second and third defendants because they outnumbered her. Its attention was directed, at all stages, to an assessment of facts bearing upon decisions to be made, in the best interests of the first defendant, about his guardianship. It did not act without evidence. Its findings of fact support its decisions.

40 The Tribunal's decisions do not, of themselves, preclude the plaintiff from maintaining a close filial relationship with her father or, one hopes, repairing her relationships with her siblings. Nor do they authorise, or encourage, the second and third defendants to marginalise her. The Tribunal points all three siblings towards the importance of co-operation in dealing with their father.

41 These proceedings provide no basis for interfering with the ordinary processes of the Guardianship Tribunal or, as the legislative regime now provides, the Guardianship Division of NCAT.

Orders

42 Subject to allowing the parties an opportunity to make submissions about the costs of the proceedings, I propose to make the following orders:

(1) Order that the plaintiff's Further Amended Summons be dismissed.

(2) Order that the costs of the first defendant (including the costs of his tutor) be paid by him or out of his estate.

(3) Order that the costs of the second and third defendant be paid by the plaintiff, but that she be indemnified in respect of those costs by the first defendant or his estate.

(4) Order that the plaintiff pay or bear her own costs.

43 The Court's discretion as to costs is normally exercised in protective jurisdiction proceedings by reference to what, in all the circumstances, seems proper rather than, simply, a rule that costs follow the event: Re An Incapable Person D [1983] 2 NSWLR 590 at 595; RH v CAH [1984] 1 NSWLR 694 at 708.

44 Powell J explained the rationale for this approach in CCR v PS (No 2) (1986) 6 NSWLR 622 at 640E-F (at a time when the Court's protective jurisdiction was administered in a separate "Protective Division" rather than, as now, a "Protective List" in the Equity Division):

"Costs are, of course, in the discretion of the court, but that discretion, being a judicial one, must be exercised in accordance with established principle. Although the principle generally to be applied in inter partes litigation is that costs follow the event, questions of costs in proceedings in the Protective Division have, over the years, come to be regarded as exceptions to that general principle. That this should be so is due to the facts, first, that in the normal case, proceedings in this Division are taken in the interests of those thought to be incapable of protecting themselves and their property; and, second, that those who would otherwise be concerned to act to protect the mentally ill or the mentally infirm might be deterred from acting if they were to expose themselves to the risk of costs if their application, even though reasonably made, were unsuccessful. In the light of these facts, the principle normally applied in proceedings in this Division is that the court will make that order which, in all the circumstances, seems proper."

45 That said, where parties have engaged in the conduct of protective proceedings in an adversarial manner, they are at risk of an adverse costs order: eg, Ho v NSW Public Guardian [2013] NSWSC 1788 at [15]-[16].

ADDENDUM (25 February 2014)

46 Upon publication of these Reasons for Judgment the parties drew to the attention of the Court that, in recent Tribunal proceedings, management of the estate of the first defendant had been committed to the NSW Trustee and Guardian.

47 Accordingly the Court made orders and notations to the following effect:

(1) ORDER that the plaintiff's further amended summons be dismissed.

(2) RESERVE all questions of costs.

(3) DIRECT that the solicitor for the second and third defendants serve on the NSW Trustee and Guardian (as the recently appointed manager of the estate of the first defendant) no later than 3 March 2014:

(a) a copy of the Reasons for Judgment today published by Lindsay J as G v W [2014] NSWSC 108; and

(b) a copy of these Orders.

(4) RESERVE liberty to apply to Lindsay J on seven day's notice.

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Decision last updated: 25 February 2014