IR v AR [2015] NSWSC 1187

Supreme Court New South Wales

Medium Neutral Citation: IR v AR [2015] NSWSC 1187 Hearing dates: 14 August 2015 Decision date: 21 August 2015 Jurisdiction: Equity - Protective List Before: Lindsay J Decision: Subject to Orders being made, that the Public Guardian be confirmed in office as guardian of a person under guardianship, supported by appointment as committee of the person of that person, on terms designed to facilitate her travel outside Australia to a jurisdiction with which NSW has no reciprocal arrangements for an exercise of protective jurisdiction Catchwords: GUARDIANSHIP – Person under guardianship – Suitability of guardian – Undue conflict of interest – Guardianship outside Australia Legislation Cited: Australian Courts Act 1828, 9 Geo IV c83 Civil and Administrative Tribunal Act 2013 NSW Guardianship Act 1987 NSW Judicature Act Mental Health Act 2007 New South Wales Act of 1823, 4 Geo IV c96 Succession Act 2006 NSW Supreme Court Act 1970 NSW Third Charter of Justice, Letters Patent of 13 October 1823 Cases Cited: CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344 at [11]-[16] CCR v PS (No 2) (1986) 6 NSWLR 622 at 640 Clay v Clay (2001) 202 CLR 410 at 428[37] - 433[49] Ex parte Lyttleton (1801) 6 Ves Jun 7; 31 ER 911 GAU v GAV [2014] QCA 308 at [48])

Holt v Protective Commissioner (1993) 31 NSWLR 227 at 238B-C and 241A-B and F-G In Re WM (a person alleged to be of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567 and 569 J in RH v CAH [1984] 1 NSWLR694 at 707B JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68] (5) JMK v RDC and PTO v WDO [2013] NSWSC 1362 at [53]-[56] and [68](5) M v M [1981] 2 NSWLR 334 at 336A [1981] 2 NSWLR 334 at 336A-338D Nock v Austen (1918) 25 CLR 519 at 529-530 P v NSW Trustee and Guardian [2015] NSWSC 579 at [168]-[172], [216]-[220] Quek v Beggs (1990) 5 BPR [97405] at 11,764 R v Clarke (1762) 3 Burr 1362; 97 ER 875 Re B (An Alleged Lunatic) [1891] 3 Ch 274 at 277 Re Eve [1986) 2 SCR 388 at 407-417; (1986) 31 DLR (4th) 1 at 14-21 SAB v SEM [2013] NSWSC 253 at [61]-[62] Secretary, Department of Health and Community Services v JWB and SMB (1992) 175 CLR 218 at 258-259 The Countess of Bective v Federal Commissioner of Taxation (1932) 47 CLR 417 at 420-423 W v G (2003) 59 NSWLR 220 at [25] W v H [2014] NSWSC 1696 at ['s 29]-[37 Wellesley v Duke of Beaufort (1827) 2 Russ 1 at 20; 38 ER 236 at 243 Wellesley v Wellesley (1828) 2 BLI NS 124 at 131; 4 ER 1078 at 1081 Texts Cited: Blackstone, Commentaries on the Laws of England (1st ed, 1765-1769; 9th ed, 1783), vol 1, pp 305 and 460 HS Theobald , The Law relating to Lunacy (London, 1924) pp 49-50 Tomlins' Law Dictionary (London, 1810) Category: Principal judgment Parties: Plaintiff: IR, a son of the person under guardianship First Defendant: AR, a son of the person under guardianship Second Defendant: MR, the person under guardianship Third Defendant: Public Guardian NSW Trustee: Amicus Curiae Representation: unsel: Plaintiff: R Sheldon SC and G Huxley First Defendant: Self Represented (by telephone) Second Defendant: J Merkel (Amicus Curiae) Third Defendant: C Phang, solicitor NSW Trustee: (Amicus Curiae): C Phang, solicitor Solicitors: Plaintiff: Watson Mangioni First Defendant: Self Represented Second Defendant: Aitkin Lawyers (Amicus Curiae) Third Defendant: NSW Trustee and Guardian NSW Trustee: C Phang, solicitor File Number(s): 2015/00209987