ADK v NSW Trustee and Guardian

Judgment 1THE COURT: This is an application for leave to appeal from the dismissal of the applicant's summons on 31 January 2013 by which the applicant challenged orders made by the Guardianship Tribunal (Tribunal) on 16 March 2012 appointing the Public Guardian as Mrs F's guardian for a period of three years to make decisions about her accommodation, her healthcare, medical and dental treatment that she should receive, and those persons who should have access to her and in what circumstances. The plaintiff in the Court below, who is the applicant seeking leave to appeal, is the son of Mrs F. 2The applicant is self-represented, as he was in the Court below. Having regard to the nature of the allegations made by him, the Attorney-General applied to be heard as amicus curiae and was granted leave pursuant to orders made by Basten JA on 17 June 2013. The Court has benefited from and is grateful for the helpful submissions made on behalf of the Attorney. 3The procedural and factual background, so far as it appears from the materials available on this application, is as follows. According to the reasons given by the Tribunal, Mrs F had previously lived in Department of Housing accommodation with her son. Since June 2011 she has resided in a nursing home in Western Sydney. In March 2011, the Tribunal appointed the Public Guardian as Mrs F's guardian for a period of twelve months. The applicant appealed to the Administrative Decisions Tribunal in relation to that order, and on 16 December 2011, that Tribunal found that he had not been accorded procedural fairness and set aside the guardianship order but stayed its own order until the guardianship application had been redetermined by the Guardianship Tribunal: ADK v NSW Trustee and Guardian (External) [2011] NSWADTAP 60. The following week, on 22 December 2011, the applicant filed a summons in the Equity Division of the Supreme Court seeking this order: "That the Supreme Court remove the public guardian from mum and that I can take mum home where she wants to be." 4That summons came before the primary judge, who noticed that there was an apparent want of parties, and dismissed it on the basis that the applicant had failed to show exceptional circumstances warranting the Court to interfere with the pending proceedings before the Tribunal which were shortly to be heard on remitter. His Honour's reasons are at [2012] NSWSC 197. His Honour noted that the applicant might have a right of appeal, and would in any event have the right to seek leave to appeal, from any decision of the Tribunal which he considered to be adverse to the interests of his mother. 5On 16 March 2012, the Tribunal conducted a hearing, in which the applicant participated by telephone. It gave reasons which are reported as FGE (2) [2012] NSWGT 3. It determined that the applicant's mother Mrs F was a person for whom the Tribunal could make a guardianship order as being "a person who, because of a disability, is totally or partially incapable of managing his or her person": Guardianship Act 1987, s 14(1). Although it heard evidence from Mrs F and her son that they did not wish a guardianship order to be made, the Tribunal determined that a guardianship order should be made. It did so on the basis of medical evidence, the testimony of a social worker and the submissions of the "Separate Representative" appointed for Mrs F by the Tribunal. 6The Tribunal noted that it was not able to appoint the Public Guardian as a person's guardian if there was a private person who could be appointed instead: Guardianship Act, s 15(3). Although both the applicant son, and Mrs F's daughter, who lives in Queensland, proposed that they be appointed guardian, the Tribunal was not satisfied that either would be able to perform that role. It gave reasons for that conclusion, and appointed the Public Guardian as Mrs F's guardian. 7That was the decision that was sought to be challenged by summons filed by the applicant on 23 October 2012, in which the following orders were sought: "(1) The Supreme Court to overturn 'all' guardianship orders over mum. (2) The Supreme Court to stop the Guardianship Tribunal to have no further dealings with myself or mum." 8That summons came before the primary judge on 31 January 2013. His Honour noted that neither the Public Guardian nor the other persons who were parties before the Tribunal had been joined as defendants, and that the application was made well outside the twenty-eight day period prescribed by s 67 of the Guardianship Act. However, his Honour dealt with the application on its merits: see [2013] NSWSC 54. First, his Honour recorded and rejected the submission that errors identified in the 2011 decision of the Administrative Decisions Tribunal indicated that there were errors leading to the decision made on 16 March 2012, and noted that there was no evidence of any lack of procedural fairness. Secondly, his Honour noted the submission that the appointment had been made against the wishes of both the applicant and his mother, but saw no error in the Tribunal considering those submissions but rejecting them for the reasons that it gave. Thirdly, his Honour addressed a submission that the Tribunal had erred by allowing the substitution of a party as the applicant for the guardianship order, and concluded that there was no basis for challenging that procedural step. Fourthly, his Honour addressed a submission that the Tribunal had not checked anything, and, noting that there was no evidence in support of the submission, found that it was not substantiated. Fifthly, his Honour noted a submission that the Tribunal had failed to comply with s 15 of the Guardianship Act, but noted that the Tribunal had, expressly, referred to and structured its reasons on that section. In any event, his Honour noted that leave would be required for there to be an appeal in relation to the findings of fact that the applicant was not a person who could be appointed as guardian. Sixthly, the primary judge noted a submission based on procedural unfairness or error on the part of the Tribunal because it had accepted submissions made by the Separate Representative, and noted that it was clear that the Tribunal had power to appoint a Separate Representative, and noted that there was no reason to question the appropriateness of the exercise of that power in this case. Seventhly the primary judge noted a submission that written submissions by the Separate Representative had been served three days later than the time directed, and noted that that had been dealt with in the Tribunal's reasons, where it considered that no unfairness had been occasioned by that delay. The primary judge saw no reason to doubt the correctness of that conclusion. 9Finally the primary judge referred to an application made by the applicant for referral to a pro bono solicitor or barrister to provide him with assistance in making this application. His Honour rejected that application on three bases. The first was that the nature or complexity of the proceedings was not such that a referral was warranted, because it appeared that in any event the application lacked any reasonable prospects of success. Secondly, the primary judge had regard to the policy reflected in s 67 of the Guardianship Act that the application should have been brought within 28 days of receipt of the Tribunal's reasons. Thirdly, the primary judge recorded the following: "36 A further reason why I would decline the referral is that I do not think that any barrister or solicitor should be subjected to the risk of allegations being made against him or her by the plaintiff if the plaintiff is dissatisfied with the outcome of a referral or the services provided by a barrister or solicitor on the Pro Bono Panel. 37 The plaintiffs' affidavit was almost bereft of material evidence. But he made accusations in his affidavit that the social worker who was substituted as applicant had forged documents, that an officer of the Public Guardian had lied and had covered up her own corruption, that the Tribunal had paid off a lawyer who was appointed as the separate representative for F to tell the Tribunal what they wanted to hear, that the original applicant before the Tribunal had also lied and committed fraud to help the Tribunal to justify their decision, and that there has been political interference in this matter by the Attorney-General." 10His Honour ordered that the summons be dismissed, but without costs. 11A summons seeking leave to appeal from that order was filed on 30 April 2013. The draft Notice of Appeal identifies a single ground: "judicial bias". The only affidavit relied upon is one affirmed by the applicant on 16 November 2012, which was before the primary judge. Prior to the summons being heard, the applicant provided three sets of submissions. The first comprise 14 pages directed to the decision of the Tribunal and the parties to the proceedings. They include serious allegations of corruption (paragraphs 10, 13, 14, 33, 34, 36, 37, 40), money laundering (paragraph 42), and the covering up of child sexual abuse (paragraphs 20, 43). No mention is made of the conduct of the hearing before the primary judge. A second four page submission complains of the "political interference by the Attorney-General", that the applicant was not allowed to give "all of the evidence I wanted to give" and the "protective" nature of the primary judge towards the Attorney. The third, of 11 pages, goes through the reasons of the primary judge, paragraph by paragraph, and makes complaints, mostly directed to allegations that the primary judge refused to listen to, and accede to, the applicant's case, and that there was corrupt interference by the Attorney (paragraphs 4, 9, 11, 13, 14, 15). 12During the course of the hearing in this Court, it became plain that the applicant believed that no transcript had been taken of the hearing before the primary judge, and that if one did exist, he would wish to make submissions as to how it demonstrated bias. The Court ascertained that a transcript had in fact been taken. A copy was provided to the applicant, and he was granted liberty to file and serve any further submissions within seven days. He did so, by a 15 page submission filed on 22 July 2013. 13That most recent submission is useful, because it confirms that (despite the tenor of the earlier submissions), the application is at least in part based on apprehended bias. In any event, it would be appropriate to treat the application on the most favourable basis to the applicant, namely, that it is based on apprehended bias: see Rouvinetis v Knoll [2013] NSWCA 24 at [10]. The question is whether a fair-minded and informed observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question in issue: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 at [31]; Duncan v Ipp [2013] NSWCA 189 at [62]-[63]. 14In our view, no basis has been shown that would come close to establishing a claim of apprehended bias, let alone actual bias. First, it should be made quite clear that there is no evidence supportive of the allegations of criminality and serious misconduct made by the applicant. Secondly, there is in our view no substance in the submission that the primary judge did not afford a full hearing to the applicant, or might be thought to have brought to bear a mind that might be closed to argument. His Honour's reasons suggest the opposite occurred. More importantly, it is important to distinguish on the one hand a rejection - even a firm rejection - of the applicant's arguments, from the conclusion that the judge was biased; cf Barakat v Goritsas (No 2) [2012] NSWCA 36 at [40]. 15We are content to proceed on the basis urged by the applicant in his submissions, that he felt that the judge was biased because (for example) he had confused and belittled him (paragraph 15), and had rejected submissions as hearsay (paragraph 42). (Those are representative complaints taken from Mr F's submissions filed after the hearing.) We also proceed on the basis that Mr F has been trying, as best he can, to do what he thinks is right for his mother. 16The mere fact that a submission is rejected cannot amount to bias; every judicial officer rejects one party's submissions every time a point is argued. And the mere fact that a submission is rejected in a way which seems to the loser to be curt, or demeaning, or belittling, once again, cannot of itself amount to bias. The reason that must be so is that regard must be had to the nature of the submission. Some submissions are, of their nature, readily rejected, because they are very weak or indeed hopeless. 17The transcript passage of which Mr F said that it seemed that the judge had "gone off on his own course to confuse me, belittle me, to be bias towards me to give himself a reason to rule against me, just because I am not a lawyer I don't see why I should have been treated this way ..." was as follows: "HIS HONOUR: The Administrative Decisions Tribunal dealt with an earlier decision of the Guardianship Tribunal. They stood that decision aside. You are now challenging the decision of the Tribunal of 16 March 2012. The error of law made in the earlier Tribunal decision is not relevant. What you need to show me is an error of law in the decision of 16 March." 18The transcript passage of which the applicant said "how could he say it was hearsay and that it is not evidence when I had already told him how I could prove everything unless he had made up his mind to rule against me" was as follows: "PLAINTIFF: ...Mum's signature used to be a lot clearer. She took one look at that and said, 'That is not my signature.' Mum said, 'Who did that?' and I said, 'Well, Lesley Toovey has filled out this whole thing.' HIS HONOUR: This is all hearsay, it is not in evidence at all. You are not here to make these allegations unsupported by evidence. Is there any other error that you can point out?" 19The primary judge was perfectly entitled to reject those submissions, in the manner that he did, and to encourage and indeed require the applicant to move to his next point. 20The Court has read each of the applicant's submissions in relation to the transcript. There is nothing that comes close to warranting a conclusion of apparent (let alone actual) bias. Some of the submissions assert that parts of the hearing were not recorded in the transcript (for example, paragraphs 12 and 26), but even if, as the applicant submits, the primary judge said (and said repeatedly) "Move on Mr F" that could not in the circumstances of this case amount to bias. It is not intended as a criticism of the applicant, but the submissions which he was seeking to make (and which we accept for present purposes were made sincerely and for a proper purpose) were not well-founded in law. 21The submission made by the amicus was, so far is disclosed by the record, correct: "[T]here is no basis for thinking [the applicant] was denied an opportunity from putting all of his arguments. The decision identifies some 7 allegations raised by the [applicant]. His Honour was, with respect, meticulous in his treatment of each of these grounds (see Re F at [16]-[30]). It appears that the Applicant was given a full opportunity to be heard." 22Conscious that the applicant is self-represented, the Court has also reviewed the whole of the transcript as well as the materials relating to the underlying claim. As was stated during the hearing, every case is important, and, especially, every case involving a guardianship order. But we do not see how there could have been any other outcome to the hearing. The short point is that the Legislature has established a specialist tribunal, and restricted the jurisdiction of this Court to review its decisions. 23We mention two matters, not raised by the applicant, for completeness. The refusal of the application for pro bono legal assistance was in our opinion entirely appropriate, notwithstanding the difficulties the applicant had and has in articulating his case. The mere fact that the applicant and the Court would be assisted by pro bono legal assistance is not sufficient. As has often been said, the Court should ordinarily be reluctant to grant applications which appear to be without merit: see Hetherington-Gregory v All Vehicle Services (No 2) [2012] NSWCA 257 at [3]-[5]; Phu v NSW Department of Education and Training [2011] NSWCA 119; M v Director General, Department of Family and Community Services [2013] NSWCA 118 at [21]. 24Finally, the fact that the primary judge had previously dismissed another summons brought by the same applicant in relation to similar issues, although not specifically relied upon by the applicant, makes no difference. The dismissal of the summons in 2012 was for all practicable purposes inevitable. The summons sought to alter the outcome ordained by the Administrative Decisions Tribunal, where the applicant had enjoyed some success, and to displace the role of the Guardianship Tribunal, and was accompanied by no evidentiary basis to warrant that highly unusual course. 25The ultimate question is whether a fair-minded and informed observer might reasonably apprehend that the same judge might not bring an impartial and unprejudiced mind to the resolution of the subsequent summons, being something expressly contemplated in his Honour's reasons. The answer to the question is in the negative. 26It follows that there are no prospects of the applicant establishing his ground of appeal. Accordingly leave should be refused. The order of the Court will be that the summons for leave to appeal is dismissed, with no order as to costs.