Re F [2012] NSWSC 197

Supreme Court New South Wales

Medium Neutral Citation: Re F [2012] NSWSC 197 Hearing dates: 22 February 2012 Decision date: 22 February 2012 Before: White J Decision: Summons dismissed Catchwords: EQUITY - guardianship - application in parens patriae jurisdiction to set aside orders of the Administrative Decisions Tribunal - inherent jurisdiction of the court with respect to guardianship of persons preserved by s 8 of the Guardianship Act 1987 - court will only intervene with statutory regime in exceptional circumstances Legislation Cited: Guardianship Act 1987 Cases Cited: ADK v NSW Trustee and Guardian [2011] NSWADT 60 Re B [2011] NSWSC 1075 Category: Principal judgment Parties: Plaintiff NSW Trustee & Guardian (Defendant) Representation: Counsel: Plaintiff in person R Stormont - sol'r (Defendant) M Dalla-Pozza - sol'r (Attorney General) Solicitors: NSW Trustee & Guardian (Defendant) Crown Solicitor's Office (Attorney General) File Number(s): 2011/412076

Judgment 1HIS HONOUR : The plaintiff filed a summons on 22 December 2011. The relief claimed in the summons is " That the Supreme Court remove the public guardian from mum and that I can take mum home where she wants to be ". The summons was listed for hearing before me on 26 March 2012. 2On reviewing the papers I arranged for the matter to be listed for directions. It seemed to me that the application was not in a position to proceed on the materials that were on the file and that there was a want of parties. Coincidentally a notice of motion was filed on behalf of the Attorney-General of New South Wales made returnable today in which the Attorney-General sought leave either to be joined as a defendant or to appear as amicus curiae . 3Amongst the papers that have been filed is a copy of reasons for decision of the Administrative Decisions Tribunal given on 16 December 2011 ( ADK v NSW Trustee and Guardian [2011] NSWADT 60). The Administrative Decisions Tribunal there set aside a decision of the Guardianship Tribunal made on 28 March 2011 in relation to a person whom they called ADM and who is the subject of the proceeding in this court. The Administrative Decisions Tribunal remitted the matter to be heard and decided again by the Guardianship Tribunal. It did not appear from the papers what had been done following the handing down of the decision of the Administrative Decisions Tribunal on 16 December 2011. That was a further reason for my listing the matter for pre-trial directions. 4It appears that a further application has been lodged in respect of ADM by a daughter of ADM and a person associated with Westmead Hospital seeking guardianship of ADM. I am told that that application is listed for hearing before the Tribunal on 16 March 2012. It would be expected that the Tribunal at the same time would deal with the matter that was remitted to it by the Administrative Decisions Tribunal on 16 December 2011. 5The plaintiff's summons seeks to invoke the inherent jurisdiction of the court with respect to guardianship of persons that is preserved by s 8 of the Guardianship Act 1987. However, it is well settled that where Parliament has established a statutory tribunal to deal with questions relating to the guardianship of disabled persons and has conferred limited rights of appeal to the Supreme Court from a decision of that Tribunal, it would defeat the statutory scheme if a person, dissatisfied with decisions of the Tribunal, could simply start a separate proceeding by invoking in this Court the Crown's parens patriae jurisdiction. 6It is well settled in a related area dealing with respect to the exercise of those powers concerning children that the court will only intervene in exceptional circumstances. (See generally Re B [2011] NSWSC 1075 at [58]-[61] and the cases there cited.) 7Nothing that has been said on behalf of ADM by the plaintiff indicates that this is an exceptional circumstance that would warrant the court exercising its inherent jurisdiction when there are proceedings listed to be heard in the Guardianship Tribunal in the reasonably near future. I do not think that it would be consistent with the scheme established by Parliament for dealing with such questions for this application to proceed, running as it were in parallel with the proceedings in the Guardianship Tribunal. 8If the Guardianship Tribunal makes a decision which the plaintiff considers to be adverse to the interests of his mother and if, as I would expect will be the position, he is a party to the proceedings before the Tribunal, then he may have a right to appeal and would have in any event the right to seek leave to appeal from such an adverse decision. The statutory regime should be allowed to take its course. 9I have considered whether I should stay the summons. On reflection it appears to me that if any fresh proceeding is to be brought in this Court, it would be the result of further orders to be made in the Guardianship Tribunal and should be brought by way of appeal, or application for leave to appeal, if there are proper grounds to do so. 10For these reasons I order that the summons be dismissed. 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. Decision last updated: 07 March 2012