New South Wales Supreme Court CITATION : Johnson v NSW Guardianship Tribunal and Ors [2009] NSWSC 664 HEARING DATE(S) : 6 July 2009 JUDGMENT DATE : 6 July 2009 JURISDICTION : Common Law Division Administrative Law List JUDGMENT OF : Palmer J EX TEMPORE JUDGMENT DATE : 6 July 2009 DECISION : Summons dismissed. CATCHWORDS : GUARDIANSHIP – PROTECTED PERSONS – Whether order as to financial management of affairs of protected person should be set aside – factual considerations – no question of principle. LEGISLATION CITED : Guardianship Act 1987 (NSW) – s 67 CATEGORY : Principal judgment CASES CITED : Johnson v Johnson [2009] NSWSC 503 Andrew Robert Stuart Johnson (Plaintiff) NSW Guardianship Tribunal (First Defendant) Protective Commissioner of New South Wales (Second Defendant) PARTIES : Public Guardian of New South Wales (Third Defendant) Frances Madge Johnson (Fourth Defendant) Karen Elisabeth Smith (Fifth Defendant) Ella Wallin (Sixth Defendant) FILE NUMBER(S) : SC 30038/09 COUNSEL : In person (Plaintiff) In person (Fifth Defendant) SOLICITORS : In person (Plaintiff) In person (Fifth Defendant) 30038/09 Johnson v NSW Guardianship Tribunal & Ors JUDGMENT – Ex tempore 6 July, 2009 1 The Plaintiff is one of three children of Frances Madge Johnson. The Fifth Defendant is Mrs K.E. Smith, the daughter of Mrs Johnson. The Plaintiff seeks to appeal under s 67 of the Guardianship Act 1987 (NSW) against orders made under the Guardianship Act by the Guardianship Tribunal on 17 September 2007. By those orders, the Public Guardian was appointed as Mrs Johnson's guardian and Mrs Smith was appointed as Mrs Johnson's financial manager. 2 By Summons filed on 28 May 2009, the Plaintiff, Mr Andrew Johnson, seeks that the Protective Commissioner be appointed as financial manager of Mrs Johnson's affairs or, alternatively, that he, Mr Johnson, be appointed and that he also be appointed as his mother's guardian. 3 The application is filed out of time and the Plaintiff seeks leave to proceed with the Summons. Leave is opposed. However, I have thought it best, with the consent of the parties, to hear the substance of the matter rather than deal separately with the leave application. It seems to me that if the substance of the appeal has merit and the appeal should succeed on its merits, then the leave would inevitably be granted. If the appeal lacks merits and so would fail on the merits, then leave ought to be refused. 4 This is, I think, in accordance with the ultimate concern of the Court in such matters – that is, what is in the best interests of the person the subject of the guardianship order. Accordingly, I have heard Mr Johnson's submissions. I have read his evidence and I have read the evidence filed on behalf of Mrs Smith. Mr Johnson and Mrs Smith are the only active parties in the appeal. Both have appeared in person, unrepresented. 5 The essence of Mr Johnson's appeal is that he says that he would be better able to care for his mother and to manage her financial affairs than is Mrs Smith, as financial manager and the Public Guardian as Mrs Johnson's guardian. Mrs Johnson unquestionably is suffering from a severe dementia and requires a high degree of care. She is presently in a nursing home. 6 Mr Johnson does not say that Mrs Johnson is being mistreated in the nursing home. He suggests that he would like to investigate the possibility to bringing his mother home to live with him and that he would look after her, if he were appointed her guardian and her financial manager. However, he recognises that that is a matter that he would have to investigate with the benefit of professional advice and assistance. No advice or assistance presently suggests that Mrs Johnson would be better off in the care of Mr Johnson, being looked after by him in his home. 7 Mr Johnson says that he would be better able to manage the financial affairs of his mother than Mrs Smith. When I asked Mr Johnson whether he had complained of any mismanagement by Mrs Smith of his mother's financial affairs since Mrs Smith's appointment, he pointed only to one circumstance and that is the commencement of proceedings by Mrs Smith, as tutor to Mrs Johnson, against himself for recovery of certain payments made out of the funds of Mrs Johnson to Mr Johnson in May 2007. Those proceedings were heard and determined by Forster J on 9 June 2000: Johnson v Johnson [2009] NSWSC 503. 8 In those proceedings Mrs Smith, as tutor, sought an order that Mr Johnson repay to Mrs Johnson's estate a sum in excess of $500,000 which had been transferred from Mrs Johnson's accounts to the benefit of Mr Johnson in May 2007. The basis of the application was that Mrs Johnson was, at the time, either incapable of making any decision to that effect or else that Mr Johnson had procured the payment unconscionably or by undue influence. His Honour upheld the claim that the payments had been procured unconscionably and ordered repayment of the money. 9 Mr Johnson has informed me that he intends to appeal. However, at the moment the fact is that Mrs Smith has successfully prosecuted a claim for the benefit of her mother's estate against Mr Johnson. I cannot find that her doing so has, in itself, been an act of financial mismanagement. On the contrary, as matters presently stand, as her claim was upheld by the Court it was proper to bring it. No other evidence of financial mismanagement on the part of Mrs Smith appears. 10 The reasons for the Guardianship Tribunal's decision to appoint the Public Guardian as Mrs Johnson's guardian and Mrs Smith as her financial manager are set out in a very carefully reasoned decision delivered on 17 April 2007. In essence, the Tribunal found, and there was no dispute about this, that Mrs Johnson was in need of guardianship. It considered the possibility of appointing one or other of her children as guardian, but the evidence was then, and is now, that there is a very high degree of animosity between Mr Andrew Johnson, on the one hand, and Mrs Smith and another brother of Mr Johnson on the other. The Tribunal, accordingly, has concluded that there would be very little possibility of an harmonious family decision as to what was in Mrs Johnson's best interests and accordingly, decided to appoint the Public Guardian as her guardian. 11 The Tribunal was satisfied that Mrs Smith had appropriate financial skills and experience to manage Mrs Johnson's financial affairs subject, of course, to the overriding supervision of the Protective Commissioner. For that reason, it appointed Mrs Smith as financial manager. 12 The process of reasoning by the Tribunal in reaching its conclusions was impeccable. No circumstances have since arisen, in my opinion, warranting any variation of their order or warranting the setting aside of the orders on any ground whatsoever. 13 For the reasons advanced by the Tribunal in its decision of 17 September 2007 which, in my perception apply equally today, I decline to set aside the orders made by the Tribunal on 17 September 2007. – oOo – DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.