Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964

Supreme Court New South Wales

Medium Neutral Citation: Julie (a pseudonym) v John (a pseudonym) [2024] NSWSC 964 Hearing dates: 14 June 2024 Date of orders: 9 August 2024 Decision date: 09 August 2024 Jurisdiction: Equity - Protective List Before: Meek J Decision: Appeal allowed. Catchwords: PROTECTIVE JURISDICTION — Appeal from Guardianship Division of the NSW Civil and Administrative Tribunal ("Tribunal") — Appeal from making of financial management order under Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), Sch 6, cl 14(1)(b) — Appeal limited to questions of law — Appeal allowed ADMINISTRATIVE LAW — Questions of law — Discussion of meaning within NCAT Act, Sch 6, cl 14(1)(b) ADMINISTRATIVE LAW — Jurisdictional error — Discussion of requirement of materiality PROTECTIVE JURISDICTION — Standing to bring application for financial management order under Guardianship Act 1987 (NSW), s 25I(1)(b) — Whether the Tribunal had formed the opinion that the applicant had a "genuine concern" for the welfare of the person the subject of the application (his mother), being a subjective jurisdictional fact — Discussion of meaning of "genuine concern" for the welfare of the person — Whether issue of standing raised — Whether finding on standing was "inherent" in the Tribunal's reasons — Whether Tribunal's rejection of summary dismissal application was a finding on standing — Held that issue of standing was raised before the Tribunal and it had not formed the opinion that the applicant had a "genuine concern" PROTECTIVE JURISDICTION — Grounds for making financial management order — Discussion of test to be applied in determining whether the person is not capable of managing her affairs under Guardianship Act, s 25G(a) — Whether "affairs" include directorship of a family company — Whether test requires the person to be able to "weigh complex information" regarding a significant property and business portfolio managed by the family company, in circumstances where she relies on her daughter (who is a co-director) and her son-in-law to manage those complex financial matters — Discussion of the relevance of assistance from the person's support system in determining whether the person is capable of managing her affairs — Held that the Tribunal applied the incorrect legal test under s 25G(a) ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Legal unreasonableness — Discussion of requirements for legal unreasonableness — Whether conclusions of the Tribunal that the person was not capable of managing her own affairs and it was in her best interests for a financial management order to be made lacked an evident and intelligible justification — Held that the Tribunal's findings on those issues were unreasonable ADMINISTRATIVE LAW — Procedural fairness — Whether the Tribunal afforded the plaintiff procedural fairness in rejecting evidence from the person's general practitioner on Makita grounds, in circumstances where no objection was taken to that evidence at the hearing and no issue was raised with the parties — The Tribunal is not obliged to give the parties a "running commentary" of its assessment of the evidence — Held that the plaintiff was afforded procedural fairness ADMINISTRATIVE LAW — Procedural fairness — Whether the Tribunal afforded the plaintiff procedural fairness in drawing conclusions from certain payments made from the person's bank accounts, in circumstances where the evidence of the payments was produced by the plaintiff herself but no issue as to the payments was raised with the parties — Whether conclusions of the Tribunal were "obviously open on the known material" — Held that the plaintiff was aware that the matters to which the payments related were in issue before the Tribunal and the plaintiff was afforded procedural fairness ADMINISTRATIVE LAW — Ground of review other than procedural fairness — Irrelevant and relevant considerations — Whether the Tribunal took into account the principle in Guardianship Act, s 4(b) in concluding that it was in the person's best interests to make a financial management order — Whether principles set out in Guardianship Act, s 4 are "mandatory considerations" in the Peko-Wallsend sense — As a matter of statutory construction, the principles in s 4 may not be "mandatory considerations" in that sense — Nonetheless, the Tribunal took into account, in substance, the principle in s 4(b) when it excluded the person's personal bank accounts and credit card from the order Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil Procedure Act 2005 (NSW) Corporations Act 2001 (Cth) Court Suppression and Non-publication Orders Act 2010 (NSW) Guardianship Act 1987 (NSW) Migration Act 1958 (Cth) NSW Trustee and Guardian Act 2009 (NSW) Powers of Attorney Act 2003 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: ACJ [2007] NSWGT 15 Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593; [2003] FCAFC 184 Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] 2 All ER 680 AW v WW (No 2) [2024] NSWSC 146 AYX17 v Minister for Immigration and Border Protection (2018) 262 FCR 317; [2018] FCAFC 103 BAK15 v Minister for Home Affairs [2018] FCA 1173 Berejiklian v Independent Commission Against Corruption [2024] NSWCA 177 BFT [2014] NSWCATGD 51 Bovaird v Guardianship Tribunal [2009] NSWSC 452 Briggs v Aboriginal Heritage Council [2019] VSC 25 C v W [2015] NSWSC 1774 C v W (No 2) [2016] NSWSC 945 Castro v Minister for Immigration and Ethnic Affairs [1997] FCA 40 CCR v PS (No 2) (1986) 6 NSWLR 622 Chand v Azurra Pty Ltd (in liq) [2011] NSWCA 227 CJ v AKJ [2015] NSWSC 498 Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 Commissioner of Victims Rights v Dobbie [2019] NSWCA 183 DRJ v Commissioner of Victims Rights (No 2) (2020) 103 NSWLR 692; [2020] NSWCA 242 EB v Guardianship Tribunal [2011] NSWSC 767 EYN [2020] NSWCATGD 10 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 Huynh v Minister for Immigration and Border Protection (2020) 280 FCR 451; [2020] FCAFC 153 ICW [2017] NSWCATGD 43 KTC [2011] NSWGT 23 Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 98 ALJR 610 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 MCQ [2014] NSWCATGD 29 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Minister for Home Affairs v Omar (2019) 272 FCR 589; [2019] FCAFC 188 Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611; [1999] HCA 21 MZI [2020] NSWCATGD 75 MZU [2020] NSWCATGD 14 Nathanson v Minister for Home Affairs (2022) 276 CLR 80; [2022] HCA 26 Navoto v Minister for Home Affairs [2019] FCAFC 135 OKK [2015] NSWCATGD 42 Orr v Cobar Management Pty Ltd (2020) 103 NSWLR 36; [2020] NSWCCA 220 P v NSW Trustee and Guardian [2015] NSWSC 579 Plaintiff M70/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; [2011] HCA 32 Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 QAG [2007] NSWGT 12 Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26; (2013) 296 ALR 307 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 Re T and the Protected Estates Act [2000] NSWSC 1022 Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 SAB v SEM [2013] NSWSC 253 Small v Phillips (No 3) [2020] NSWCA 24 Snedden v Minister for Justice for the Commonwealth of Australia [2014] FCAFC 156; (2014) 315 ALR 352 Sowmi v Master Electrical Services Pty Ltd [2024] NSWSC 176 Stowers v Minister for Immigration and Border Protection (2018) 265 FCR 177; [2018] FCAFC 174 SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 SZRAE v Minister for Immigration and Citizenship [2012] FCA 916 Tarbes v Taleb [2023] NSWSC 565 "V V" v District Court of New South Wales [2013] NSWCA 469 Wang v Australian Securities and Investments Commission [2019] FCA 1178 ZXA v ZXB [2022] NSWCATAP 97 Texts Cited: Aronson, Mark, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (7th ed, 2022, Lawbook Co) Halsbury's Laws of Australia Lindsay J, "A Struggle for Perfection in an Imperfect World: Dignity of the Individual, Incapacity for Self-Management, Rights, Duties and Conflicts of Interest" (Paper), Society of Trust and Estate Practitioners Western Australia Incapacity Conference, 26 October 2018 Lindsay J, "Roles in Protective Management of Person and Property" (2018) 92 AIAL Forum 36 Macquarie Dictionary, online ed NSW Civil & Administrative Tribunal, "Financial management" (URL reference below) accessed 16 July 2024 Oxford English Dictionary, online ed The Corporate Governance Institute, "The different types of company directors" (URL reference below) accessed 29 July 2024 Category: Principal judgment Parties: "Julie" (a pseudonym) (Plaintiff) "John" (a pseudonym) (First Defendant) NSW Trustee and Guardian (Second Defendant) "Olivia" (a pseudonym) (Third Defendant) Representation: Counsel: O Jones (Plaintiff) A Poukchanski (First Defendant)