W v G [2003] NSWSC 1170

Reported Decision : 59 NSWLR 220

New South Wales Supreme Court

CITATION : W v G [2003] NSWSC 1170 HEARING DATE(S) : 25 November 2003 JUDGMENT DATE : 11 December 2003

JURISDICTION: Equity Division Protective List JUDGMENT OF : Windeyer J at 1 DECISION : Appeal from Guardianship Tribunal allowed.

CATCHWORDS : MENTAL HEALTH - Guardians and financial managers - appointment of Public Guardian by Guardianship Tribunal because conflicting views on accommodation - family member available - whether appointment appropriate having regard to s4, s14 and s15(3) of the Guardianship Act 1987 - STATUTES - Interpretation - Guardianship Act 1987 - s15(3) - proper interpretation LEGISLATION CITED : Guardianship Act 1987 s3F, s 4, s14, s15(3), s57A CASES CITED : C v C [2001] QSC 126 K v K [2000] NSWSC 1052 W (Plaintiff) G (First Defendant) PARTIES : Public Guardian (Second Defendant) Protective Commissioner (Third Defendant) Guardianship Tribunal (Fourth Defendant) FILE NUMBER(S) : SC 51 of 2003 Mr M Gorrick (Plaintiff) COUNSEL : Ms N L Sharp (amicus curiae)

Wilkinson Throsby & Edwards (Plaintiff) SOLICITORS : I V Knight ( amicus curiae) T Tunbridge (Third Defendant) Ms E Cho (Fourth Defendant)

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION PROTECTIVE LIST

WINDEYER J

THURSDAY 11 DECEMBER 2003.

51 OF 2003 JUDGMENT 1 This is an application for leave to appeal and if leave is granted an appeal from decisions of the Guardianship Tribunal (the Tribunal) dated 19 August 2002 and 20 August 2003, pursuant to which the Public Guardian was appointed guardian of Mrs G and the Protective Commissioner appointed manager of her estate. The names of the persons involved are not made public in Protective matters and I will therefore refer to the person under guardianship as Mrs G. The plaintiff, who is the niece of Mrs G, I will refer to as Mrs W. 2 On 15 May 2002, Mrs W applied to the Tribunal for a guardianship and financial management order in respect of Mrs G. She sought appointment as guardian and financial manager. It is clear that the facts and circumstances were such that a financial management order should be made and that a guardianship order could be made. 3 At the time the application was brought, Mrs G was resident in a nursing home at Kogarah, but at the time of the hearing she had been moved pursuant to arrangements made by Mrs W to a nursing home at Bundanoon. Mrs W, the plaintiff, lives at Burradoo and her father Mr B, who is a brother of Mrs G, lives at Moss Vale. The Tribunal hearing took place on 19 August 2002 at Bowral. It is accepted that Mrs G was suffering from dementia to some extent induced by alcohol. 4 Section 3F of the Guardianship Act 1987 (the Act) sets out who are parties to the proceedings. Mrs G is a widow. The parties were Mrs W, Mrs G and pursuant to s3F(2)(e) the Public Guardian, who is presumably made a party in all proceedings to make it possible for his appointment as guardian to be made without notice to him. No person was joined as a party pursuant to s57A of the Act. 5 The reasons for decision set out a list of persons "who attended the hearing and gave evidence to the Tribunal". Mrs W, Mr B, Mrs C, who is the sister of Mrs G, are listed together with Ms M, a friend of Mrs C, together with three lawyers who apparently were there to assist the various people attending. Insofar as the record suggests the lawyers gave evidence that is I think incorrect. 6 Ms M is a longstanding friend of Mrs C and to some extent of Mrs G as well. The two sisters had lived together for many years at the home of Mrs G at Maianbar after Mrs G's husband died. Ms M held a power of attorney from Mrs C. Mrs C is over eighty and Mrs G is about eighty-seven or eighty-eight years of age. Mrs G moved into the nursing home at Kogarah in 1999 and Mrs C moved into hostel accommodation at the John Paul Village at Heathcote in 2001. 7 From the reasons it seems that the people who gave the significant evidence to the Tribunal were Mrs W, Mr B and Ms M. Ms M contended that Mrs G should be moved to the John Paul Nursing Home at Heathcote because Mrs C was in the hostel section and the sisters would be able to see each other, whereas at the present time they can have no contact, unless Mrs C is taken to Bundanoon. As against that Mrs W and Mr B at the present time have regular contact with Mrs G now she is at Bundanoon and they want her to stay there. It seems that Mr B goes there on most days and Mrs W at least once a week. 8 The Tribunal, in its reasons of 19 August 2002, after setting out the matters which gave rise to the authority to appoint a guardian pursuant to s14 of the Act and stating they had been made out, went on to consider the need for a guardian as follows:- Need for a guardian