S v S [2001] NSWSC 146 | Case summary

JUDGMENT 1 HIS HONOUR: This is an application for leave to appeal against a decision of the Guardianship Tribunal of New South Wales which was handed down on 30 November 2000. 2 The decision concerns the care of the affairs of the first defendant. It is clear, and indeed was common ground before me, that the defendant is a person who is incapable of managing his own affairs, and that the only issue between the parties is whether the Protective Commissioner should be the manager of those affairs, or whether it should be the plaintiff. 3 The Tribunal considered the matter on 28 May 1999 and reviewed it, coming to the same decision on 30 November 2000, that decision being that the management of the first defendant's affairs should remain in control of the Protective Commissioner. 4 The plaintiff appeals by summons filed on 19 January 2001 and the grounds of appeal as outlined by her counsel are that:

(c) that the Tribunal erred in considering that the plaintiff was in a position of conflict of interest, vis a vis the incapable person. 5 As counsel for the plaintiff conceded, these grounds are not grounds involving matters of law and so under s 67 of the Guardianship Act, 1997, leave of the Court is needed. 6 The question that then arises is what are the principles upon which leave should be granted, and whether the plaintiff has made out her case in accordance with those principles. 7 The principles have been discussed recently in this Court in four cases: Re Application 1/98, Cohen J 27 March 1998; King v Guardianship Tribunal, Cohen J 22 June 1998; Re R [2000] NSWSC 886; and K v K [2000] NSWSC 1052, the last two decisions being decisions of my own. 8 The last mentioned case discussed the principles, and the previous decisions, and the guidance that was laid down was that, apart from questions of law in respect of which there is a right of appeal, the Court was likely to grant leave to appeal in cases where there were broad questions of administration and policy, and the applicability of policy to individual cases particularly where different divisions of the Guardianship Tribunal had formed different views. I said, however at [15]: "On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact-finding exercise unless there are clear indications that the Tribunal has gone about that fact-finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 9 Most of the present grounds of appeal are pure matters of fact-finding. 10 This Court has a parens patriae jurisdiction as well as its statutory powers under s 67. It is obliged to pay regard to the best interests of the incapable person without undue emphasis on technicalities. 11 However, even in cases in the parens patriae jurisdiction, as was made clear by Hodgson CJ in Eq in DOCS v S [2001] NSWSC 79, the Court does not interfere with the decision of the primary fact-finding tribunal whether the Court or statutory tribunal, unless some error appears in the process leading to the decision, or the decision below is clearly wrong. 12 The next consideration is how the Court should deal with leave applications. In my view these should be dealt with almost wholly on the papers. The appellant must establish in his or her affidavit evidence why, in view of the principles I have just stated, leave should be granted. Leave should then be considered by the Judge dealing with the Protective List, either in chambers or in court, with minimal submissions. If this were not so then the whole scope of the Act in restricting appeals to questions of law as a general rule, and in making the Guardianship Tribunal the primary Tribunal, would be thwarted. 13 However, as the practice has not yet been clearly laid down, in the present case I read the affidavits, I asked questions of counsel, and then I afforded an opportunity to the plaintiff to give additional oral evidence on certain matters which concerned me and allowed cross-examination on that. This will not normally occur. 14 Having read the affidavits, and having heard that oral evidence and what Mr Higgins of counsel for the plaintiff says, I do not consider I should give leave to appeal on grounds (a) and (c), which are purely fact-finding matters, and indeed the oral evidence tends to suggest that it would be extremely difficult on this appeal to show that there was any gross error on the part of the Tribunal. 15 I was more concerned about ground (b) and I should briefly indicate my concern. The present is a strange case in that there are two basal assets of the incapable person, a property near Cessnock and a private company which has one asset, a property at Wahroonga. The private company was controlled by the plaintiff and her husband, who has legal qualifications, and is an undischarged bankrupt. The company in the past appears to have been managed in probably much the same way as it was managed when the incapable person was in charge, that is mingling the affairs of the company and the affairs of the incapable person and other members of the family. The plaintiff recognises that this cannot continue and she has indicated that she will take the advice of a chartered accountant who has quoted a fee of $214 an hour for every hour that he personally is involved in administration and lesser sums for his employees. 16 The asset consists of a series of flats which are let out, or will be let out when renovated, though one flat is occupied by the plaintiff and her husband. They do not pay rent but they say that their contribution should be valued at about $250 to $300 a week, in view of their efforts in painting, caretaking and otherwise. They say that with their nominated accountant's assistance, and their voluntary efforts, the estate will be able to be managed relatively inexpensively. On the other hand, the estimate is that the consultant that was appointed by the Protective Commissioner to run the company is going to charge something like $260 to $280 an hour and will be far more expensive. They say that the Tribunal worked on the basis that the Protective Commissioner was likely to be more cost conscious than a private manager, and this was an error. 17 It may be that the Tribunal did not have in mind the costs of managing the company. However, it also may well be that the costs of the consultant appointed by the Protective Commissioner have increased because of the need to unravel the problems which have been caused in the company during the plaintiff's administration, and the fact that the plaintiff has not been forthcoming with a lot of detail which the consultant has requested. The more problems that the consultant has the higher his bill is likely to be. 18 The plaintiff says that part of the problem in supplying information was that a hard disk in her computer crashed. That is unfortunate, but it should not have prevented her supplying the information by today when everyone knew the matter was going to be before the Court. Furthermore, one does not know how many hours are going to be put in by a private accountant whom the plaintiff has nominated. A person having to come to grips with the company's problems may very well put in more hours than a person who is already in control of the basal facts, so that the effect of the private accountant's hourly rate being perhaps $50 less than the consultant appointed, is not necessarily a matter which is going to show that the total bill in the long run is going to be cheaper. 19 In any event, it seems to me that the cost of the Protective Commissioner as against the plaintiff is only one of the matters in the mix and not the major matter. The Tribunal did have an overall view of the matters which it thought it should consider when reaching the ultimate decision, and that is whether in all the circumstances it was in the best interests of the incapable person to have the plaintiff or the Protective Commissioner as his manager. 20 In my view, there is insufficient material to show that this is the sort of case where leave to appeal should be granted and accordingly I refuse leave to appeal with costs. The exhibits may be returned. ****************

S v S

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