Supreme Court New South Wales Medium Neutral Citation: Ho v NSW Public Guardian [2013] NSWSC 1788 Hearing dates: 29 November 2013 Decision date: 29 November 2013 Jurisdiction: Equity Division Before: Lindsay J Decision: Orders allowing appeal from Guardianship Tribunal Catchwords: GUARDIANSHIP - Guardianship Tribunal - urgent, ex-parte application to Tribunal - Guardianship and Financial Management Orders made - Foundation for Orders controversial - appeal to Court - Considerations on review of Tribunal Orders Legislation Cited: Civil Procedure Act 2005 NSW Guardianship Act 1987 Cases Cited: - Texts Cited: - Category: Principal judgment Parties: Protected Person (Plaintiff) Public Guardian (First Defendant) NSW Trustee and Guardian (Second Defendant) Applicant to Guardianship Tribunal (Third Defendant) Representation: Counsel: Mark Ashhurst SC with Ben Fogarty (Plaintiff) Submitting Appearances (First and Second Defendants) Michael Miceli, Solicitor (Third Defendant) Solicitors: PMF Legal Limited (Plaintiff) Crown Solicitor (First and Second Defendants) Michael Miceli Solicitor (Third Defendant) File Number(s): 2013/00314543 Judgment 1These Reasons for Judgment provide a preliminary statement of reasons for orders allowing an appeal to the Court (pursuant to s 67 of the Guardianship Act 1987 NSW) from Orders made by the Guardianship Tribunal, affecting the person and estate of the plaintiff, on the application of the third defendant, a daughter of the plaintiff. 2On an urgent, ex parte application by the third defendant, the Tribunal made (in each case for a limited time) a guardianship order appointing the Public Guardian as the plaintiff's guardian and a financial management order committing management of his estate to the NSW Trustee. 3Any urgency attaching to the third defendant's application arose from the plaintiff's receipt of a large capital sum and a fear, fuelled by the plaintiff's (temporary) departure for overseas and his participation in complex litigation, that that sum would be dissipated. 4Confronted with a difficult case the Tribunal erred, if at all, on the side of protection of the plaintiff as a person perceived, as the case was presented to the Tribunal, to be in need of protection. 5Through no fault of the Tribunal, the plaintiff was denied procedural fairness. 6Since being informed of the orders made by the Tribunal affecting his person and his estate, the plaintiff has endeavoured to demonstrate, with the benefit of medical evidence, that there is not, and never has been at any material time, a proper foundation for the making of any guardianship order or financial management order affecting him. 7The orders made by the Tribunal went beyond what was, or may have been, necessary to protect the person and the estate of the plaintiff in the circumstances in which the Tribunal was called upon to make urgent decisions affecting him. 8Upon closer consideration of evidence which, ultimately, has not been challenged by the third defendant in these proceedings, it appears that the plaintiff is and was at all material times capable of managing himself, and his own affairs, without the intervention of protective orders. 9After initially maintaining her support for the Tribunal's orders, and contesting the plaintiff's appeal from them, the third defendant (at a directions hearing before the Court on 25 November 2013) altered her course. She announced that her participation in the proceedings would, from that time, be limited to that of a submitting appearance, save as to costs. 10Several factors combine to persuade me that the appropriate course is, without further delay, to order that the plaintiff's appeal against the orders of the Tribunal be allowed and that the applications made by the third defendant to the Tribunal be dismissed without more. 11In a case in which there has been a denial of procedural fairness the appropriate course might, more often, be to make an order for remittal of proceedings to the Tribunal for a fresh hearing of the applications under appeal. However, to do so in these proceedings would be to compound an injustice done to the plaintiff. 12The several factors pointing in the direction of an immediate determination of the whole proceedings include the following: (a)First, the general principles which, as set out in s 4 of the Guardianship Act 1987, inform the construction and operation of the Act, require the welfare and interests of a person perceived to be in need of protection to be given paramount consideration, with a respect for autonomy. (b)Secondly, the terms of s 67 of the Act (supplemented by the inherent jurisdiction of the Court preserved, inter alia, by s 8 of the Act) are broad enough to permit the Court to act, without fuss or delay, in what it perceives to be the best interests of a person who is, or is perceived to be, in need of protection upon a review, by appeal or otherwise, of a decision of the Tribunal. (c)Thirdly, having regard to the general principles enunciated in s 4, as informed by similar principles which govern an exercise of the Court's inherent jurisdiction, importance attaches to giving to the process of review as much expedition as the nature of the particular case may require and the resources available for doing so allow. (d)Fourthly, the case management principles embodied in the Civil Procedure Act 2005 NSW (including, particularly, ss 56-60) require the Court to facilitate the just, quick and cheap resolution of real issues in civil proceedings and to do so in a way that pays homage to the dictates of justice, the elimination of delay and a cost-effective administration of judicial and administrative resources. (e)Fifthly, the principles governing estoppel, on an exercise of the protective jurisdiction of both the Court and the Guardianship Tribunal in making public interest determinations from time to time, do not operate in such a way as to preclude fresh applications being made to the Tribunal, or to the Court, should the plaintiff at some time in the future be in need of protection. 13As a caveat to this last point, notice should be taken of the principles governing abuses of process. Although the principles of estoppel do not stand in the way of due consideration being given, on the merits, to a renewed application for protective relief, the Court and the Tribunal have sufficient power over their own processes to prevent such, if any, abuses of process that might flow from repetitive applications or applications made for a collateral purpose. 14Reserving an opportunity for elaboration of these Reasons when the pressure of business permits, I make the following Orders: (1)ORDER (pursuant to s 67(1)(b) of the Guardianship Act 1987 NSW) that the plaintiff be granted leave to appeal generally from the Orders made by the Guardianship Tribunal in disposition of the proceedings in the Tribunal bearing file number C/54218 and matter numbers 2013/6951, 2013/6952 and 2013/7253. (2)ORDER (pursuant to ss 67(3) and 67(4)(a) of the Guardianship Act 1987) that the orders made by the Tribunal in respect of the plaintiff on 4 September 2013 (and any ancillary or related orders, including orders made on 3 and 16 October 2013) be set aside. (3)ORDER (pursuant to s 67(3) of the Guardianship Act) that the applications made by the third defendant to the Tribunal for guardianship and financial management orders, affecting the plaintiff, in those proceedings, be dismissed. (4)ORDER that the third defendant pay the plaintiff's costs of these proceedings (numbered 2013/0314543 in the Supreme Court). 15The Court's approach to orders for costs in proceedings which invoke its protective jurisdiction is different from that which appertains in ordinary civil litigation. The Court's discretion as to costs is normally exercised, not by reference to a rule that costs follow the event, but having regard to what, in all the circumstances, seems proper. 16That said, what seems proper in the circumstances of this particular case is that the third defendant, having engaged her father in proceedings apparently conducted in an adversarial manner, should bear his costs of her having done so. ********** 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: 03 December 2013