K v K [2000] NSWSC 1052

New South Wales Supreme Court

CITATION : K v K [2000] NSWSC 1052 CURRENT JURISDICTION: Equity Division Protective List FILE NUMBER(S) : SC 38/2000 HEARING DATE(S) : 3 November 2000 JUDGMENT DATE : 3 November 2000

PARTIES : The names of the parties are suppressed in cases in the Protective List JUDGMENT OF : Young J

S Winters (P) COUNSEL : M Fraser (D1) L Rogers (Solicitor)(D2 - Submitting Appearance) M Kearney (D4) Heidi Muggenthaler & Associates (P) SOLICITORS : Friend & Co (D1) Blake Dawson Waldron (D4) CATCHWORDS : MENTAL HEALTH [3]- Guardianship- Extent of power of Guardianship Tribunal- What guardianship entails- Costs on appeals- How borne. LEGISLATION CITED : Guardianship Act 1987, ss 3D, 3F, 21, 31, 33A, 37, 67 Application 1/98 (Cohen J - 27.3.1998) In re C (1875) LR 10 Ch App 75 In re F (1863) 2 DeG J & S 89; 46 ER 308 CASES CITED : King v The Guardianship Tribunal (Cohen J - 22.6.1998) Re M and R (1988) 2 VAR 213 MN v AN (1989) 16 NSWLR 525 Re R [2000] NSWSC 886 Retarded Childen's Aid Society v Day [1978] ICR 437 DECISION : See paras 44 and 49

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

YOUNG J

FRIDAY 3 NOVEMBER 2000

38/2000 - K v K

JUDGMENT

1 HIS HONOUR: This is an appeal under s 67 of the Guardianship Act 1987 in respect of determinations made by the Guardianship Tribunal (the "Tribunal") regarding the first defendant on 21 December 1999 and 3 March 2000. 2 The first defendant is now aged twenty four, he lives with his father, the plaintiff, in the father's home at Willoughby. On 27 December 1981 the first defendant sustained a severe head injury which left him very seriously disabled with brain injuries so that he is unable to speak or walk. He is totally incapable of managing his personal affairs. 3 The first defendant received substantial compensation for the injury he suffered, a figure of some $2 million has been mentioned in part of the evidence. The money is being managed by the Senior Master's Office of the Supreme Court of Victoria. The Senior Master and his staff provide as much as they can out of that fund for the needs of the first defendant and it would seem that out of that fund an amount of about $67,500 per year is provided for the carers of the first defendant though what expenses this covers is unclear. A substantial part of that amount goes to the plaintiff, but some of it goes to the fourth defendant, who is the first defendant's mother in respect of the periods during which she cares for the first defendant. 4 The plaintiff and the fourth defendant are divorced and it seems clear that the relationship between them is, to say the least, unsatisfactory. The fourth defendant lives in a house in Crows Nest in which the first defendant has a 32.5% share. 5 The matter came before the Tribunal when the plaintiff sought to be appointed guardian of the first defendant. The order that was made on 21 December 1999 was that the first defendant be placed under guardianship, but that his guardian be the Public Guardian. The order was for limited guardianship "giving the guardian custody of the first defendant to the extent necessary… to determine the times and arrangements under which the first defendant shall have access to his mother, away from his primary accommodation with his father" and "to determine where the first defendant shall be accommodated at the time he is having access to his mother". 6 There was a problem earlier this year when it was thought that the first defendant might be removed by the plaintiff out of the State where the Public Guardian would not have any control. On 3 March 2000, following that dispute, an order was made varying the limited guardianship order by conferring on the Public Guardian the function of determining where the first defendant might reside and to make decisions on his behalf concerning major services to which he should have access. 7 By summons filed on 28 April 2000 the plaintiff seeks to set aside the orders of 21 December 1999 and 3 March 2000. He virtually seeks an order that he be appointed guardian with such other orders as the Court thinks appropriate in the interests of the first defendant. 8 Nine grounds are set out in the summons as to why the appeal from the decisions of the Tribunal should be allowed. Three of these, (a), (h) and (i), appear to be questions of law alleging that the Tribunal misconstrued its power under the Guardianship Act. The other six are questions of fact. 9 The Court, under s 67 of the Guardianship Act, has power to hear an appeal as of right on a question of law, but only by leave of the Court on any other question. 10 It has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67. Cohen J briefly touched on the matter in King v The Guardianship Tribunal (22 June 1998, unreported) as did I in Re R [2000] NSWSC 886. 11 The matters that are raised in the grounds other than (a), (h) and (i), do not involve a review of the primary facts found by the Tribunal. Those facts are accepted because Ms Winters, for the plaintiff, says they were virtually not in dispute in any event. What she wishes to review is the extent to which policy decisions were made and the conclusions that were reached from those primary facts by the Tribunal. Mr M Kearney, for the fourth defendant, says that that is no reason for granting leave to appeal because the policy of the Guardianship Act is for the Tribunal to work out, and, in any event, decisions have already been made by this Court confirming such policy: see the case which can only be referred to as Application 1/98 decided by Cohen J on 27 March 1998 which gave a guide to the Tribunal as to what the policy was. 12 I think it is germane when considering whether to give leave to appeal, to work out the basic relationship between the Tribunal and the Court. 13 Up until relatively recently the Supreme Court, with its inherent power inherited from the Lord Chancellor's jurisdiction in England in the 18th century, had unlimited authority to deal with the persons and estates of incapable persons for their own benefit. It was thought proceedings before the Court involved expense which could be avoided and it would be more appropriate for these matters ordinarily to be dealt with by a tribunal which basically consisted of a lawyer with some knowledge of the relevant Acts and of the law of evidence, a doctor, and a person who had practical experience with the problems of people with mental disabilities. The legislature thus under the Guardianship Act committed to the Tribunal most, but not all the same area of jurisdiction that was within the Court's jurisdiction. It preserved the court's jurisdiction under s 31 and other parts of the Act, and gave the Court supervisory and appellant jurisdiction under s 67. 14 As I said in Re R, it is probably inaccurate to assess the Tribunal as being a specialist tribunal, but it is certainly a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight. When the Court does review a decision of the Tribunal, it does, as Lord Denning said in Retarded Children's Aid Society v Day [1978] ICR 437, 443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law. However, a function of the Court is to ensure that guidance on the proper interpretation of the law is given to the Tribunal and the parties appearing before it so that the Tribunal is integrated into the machinery of justice applying the law of incapable persons as administered by the Court. Thus, there will not be inconsistent rulings between tribunals differently constituted, or between the Tribunal and the Court. 15 It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed. 16 As the present case comes within the former category I think I should give leave to appeal. I now pass to the merits. 17 Ground (a) in the summons deals with the question of who is a party before the Tribunal. In actual fact, in this case that question is of no moment because there were competing applications before the Tribunal so that the plaintiff actually was heard as a party. 18 The point which is raised in this ground of appeal is that the Tribunal misconstrued s 3D of the Guardianship Act 1987. A right to appear as a party is given by s 3F of the Guardianship Act to a person who has the care of another person. Section 3D(1) says: "For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis: (a) provides domestic services and support to the other person; or (b) arranges the other person to be provided with such services and support."