BB v LB & Ors [2017] NSWSC 1079

Supreme Court New South Wales

Medium Neutral Citation: BB v LB & Ors [2017] NSWSC 1079 Hearing dates: 14 August 2017 Date of orders: 15 August 2017 Decision date: 15 August 2017 Jurisdiction: Equity - Protective List Before: Kunc J Decision: Stay lifted; BB's notice of motion dismissed; directions made Catchwords: ADMINISTRATIVE LAW - administrative tribunals - Civil and Administrative Tribunal (NSW) – appeal to Supreme Court against guardianship order – statutory stay pending appeal - Civil and Administrative Tribunal Act 2013 (NSW) Sch 6, cl 14(5) Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Category: Procedural and other rulings Parties: Identities suppressed Representation: Counsel:

A. Kaufmann (Defendant)

Solicitors:

Paul Duffy (Defendant) File Number(s): 2017/196481 Publication restriction: No

EX TEMPORE Judgment

Summary 1. The plaintiff ("BB") is the son of Mrs N. Mrs N lives in an aged care facility. Mrs N's daughter (BB's sister) ("LB") is her mother's guardian. 2. On 14 June 2017 the New South Wales Civil and Administrative Tribunal (the "Tribunal"), constituted by a Senior Member (Legal), made orders extending an existing guardianship order in relation to Mrs N and related orders (the "Decision"). Among those related orders was an order that L, as guardian, should decide what health care Mrs N should receive and to make substitute medical decisions for Mrs N where she was not capable of giving valid consent. 3. By a summons filed on 30 June 2017, BB has appealed against the Decision. Somewhat irregularly, BB has purported to join Mrs N as second plaintiff. Furthermore, in addition to LB, two other family members have been named as defendants for no apparent reason. 4. These proceedings are governed by clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the "Act") which includes: 14 Appeals to Supreme Court under this Part (1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision: (a) in the case of an interlocutory decision of the Tribunal-with the leave of the Court, or (b) in the case of any other kind of decision-as of right on any question of law, or with the leave of the Court, on any other grounds. … (5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal. 1. The proceedings were before the Registrar yesterday for directions. In accordance with the Protective List practice in relation to such appeals, the proceedings were referred to me by the Registrar for consideration as to whether the Court should make an interlocutory order ameliorating the statutory stay of the Decision effected by cl 14(5) of Schedule 6 of the Act. 2. BB appeared for himself. LB and the other defendants were represented by Mr A Kaufmann of Counsel. 3. LB applied for an order lifting the statutory stay so as to give effect to the Decision until the determination of BB's appeal. BB supported the stay and asked the Court to appoint him as Mrs N's guardian in relation to her health affairs. 4. The Court has concluded that an order lifting the stay pending the determination of the appeal should be made for two principal reasons: 1. On the material currently before the Court, the appeal discloses no arguable basis for success. 2. In any event, based on the Decision it is clear that the welfare and interests of Mrs N (the paramount consideration in guardianship matters) are best served by maintaining the regime which was continued by the Decision.