BHM v BHN & Ors

NCAT Appeal Panel|2014-05-16

Introduction 1BHO is a 54 year old man who incurred a severe traumatic brain injury when he fell from a ladder in 2010. He is involved in litigation relating to workers compensation and medical negligence. His former wife alleges that he recently assaulted her. That matter is listed for hearing on 27 May 2014. Because of concerns relating to BHO's involvement in various court proceedings, the First Respondent, his rehabilitation case manager, applied to the Guardianship Division of the Civil and Administrative Tribunal for a guardianship order. 2The Appellant, a solicitor, applied for leave to represent BHO. The Guardianship Division refused his application for an adjournment and then refused to give leave for him to represent BHO. The Appellant has appealed to the Appeal Panel against those decisions. Because the decisions are interlocutory decisions the Appellant requires the Appeal Panel's permission before the appeal can go ahead. 3We refuse to give BHM permission to appeal against the Guardianship Division's decisions for two reasons. Firstly it is not necessary to do so to ensure the just, quick and cheap resolution of the real issues in the proceedings: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 35. Secondly, it is not necessary to give leave to ensure that BHO's interests are given paramount consideration: Guardianship Act 1987, s 4.

Identification of interlocutory decisions the subject of the appeal 4 BHM purported to appeal against seven orders or decisions that he said the Guardianship Division had made on 6 May 2014. BHM is only entitled to appeal against interlocutory decisions which come within the definition of that term and to which he was a party. Interlocutory decisions are defined in s 4 of the NCAT Act: "interlocutory decision" of the Tribunal means a decision made by the Tribunal under legislation concerning any of the following: (a) the granting of a stay or adjournment, (b) the prohibition or restriction of the disclosure, broadcast or publication of matters, (c) the issue of a summons, (d) the extension of time for any matter (including for the lodgment of an application or appeal), (e) an evidential matter, (f) the disqualification of any member, (g) the joinder or misjoinder of a party to proceedings, (h) the summary dismissal of proceedings, (i) any other interlocutory issue before the Tribunal. 5An interlocutory issue or decision is, generally speaking, a decision that does not finally determine the rights of the parties. The Guardianship Division made the following two interlocutory decisions on 6 May 2014: (1)The Tribunal refuses leave to [BHM], an Australian legal practitioner, to represent [BHO] in all proceedings pending at the Tribunal. (2)BHO be separately represented in all proceedings pending before the Tribunal. 6While the Guardianship Division did not make a formal order refusing BHM's application for an adjournment, the tape recording of the hearing discloses that the Senior Member refused that application, if not expressly, then impliedly. 7As BHM was not a party to the guardianship application, he is not entitled to appeal against the decision to appoint a separate representative for BHO. The only two interlocutory decisions made on 6 May 2014 to which BHM was a party, were the decisions to refuse him leave to represent BHO and the decision to refuse to adjourn that application.

Representation by a lawyer and adjournment application 8The general rule in the Guardianship Division is that a party has the carriage of his or her own case and is not entitled to be represented by any other person: NCAT Act, s 45(1)(a). A party may be represented by another person only if the Tribunal grants leave for the person to represent the party: NCAT Act s 45(1)(b). (1) A party to proceedings in the Tribunal: (a) has the carriage of the party's own case and is not entitled to be represented by any person, and (b) may be represented by another person only if the Tribunal grants leave for the person to represent the party. (2) However, a party to an internal appeal (or in an application for leave to make an internal appeal) may be represented by a person without requiring the leave of an Appeal Panel if the party was entitled to be represented by such a person without the leave of Tribunal in the proceedings in which the decision under appeal was made. 9The Tribunal may, at its discretion, grant or refuse leave under s 45(1)(b). The person who applies for leave to represent a party is a party to that application but not to the proceedings generally. 10NCAT is empowered to "adjourn proceedings to any time and place": NCAT Act, s 51.

Principles relating to leave to appeal against interlocutory decisions 11The Appeal Panel's permission, or leave, is required before a person can appeal against an "interlocutory decision": NCAT Act, s 80(2)(a). The legislation does not provide any guidance as to the considerations that are relevant when determining whether to grant leave. Those principles must be derived from the objects of the Act and the nature of the appeal. 12The 'guiding principle' of the NCAT Act is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": s 36. The purpose of requiring leave to appeal from interlocutory decisions is to save costs and to make sure that the real issues in dispute are determined justly and quickly. But the importance and complexity of the subject matter is also relevant: In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings: NCAT Act, s 36(2). 13Finally, it is critical to bear in mind the general principles in the Guardianship Act 1987 which include that "the welfare and interests of (persons who have disabilities) . . .should be given paramount consideration": s 4(a). 14While there is no rigid test or criteria for the granting of leave, the Supreme Court has set out relevant principles which, depending on the circumstances, may also apply to the Appeal Panel when considering leave applications against interlocutory decisions. 15Some of the principles which we regard as relevant to this appeal were summarised by Campbell JA in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]: In Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 (followed in Zelden v Sewell [2011] NSWCA 56 at [22]), Sheller JA said that an applicant for leave must demonstrate something more than that the trial judge was arguably wrong in the conclusion arrived at. . . . Kirby P recognised that ordinarily it was appropriate to grant leave to appeal only concerning matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear, in the sense of going beyond what being merely arguable. 16The degree of injustice that would be suffered by the respective parties as a consequence of any order or direction is another relevant consideration: Civil Procedure Act 2005 (NSW), s 58(2)(b)(vi).

Consideration 17BHM submitted that the prejudice to BHO if leave is refused is that he will be deprived of the opportunity to have a legal representative of his choosing and with whom he can communicate. 18The difficulty with this submission is that BHO's ability to provide instructions to a solicitor is in doubt. The basis for the Guardianship Division's decisions to refuse an adjournment and refuse leave for BHM to represent BHO, was that there was evidence both from medical practitioners and from BHM himself, that BHO is not capable of providing instructions to a solicitor. That evidence included a report from Dr Alexandra Walker, a neuropsychologist, who expressed the view in a report dated 15 April 2014 that, even with assistance, BHO is incapable of providing meaningful and informed legal instructions to his solicitor. 19 BHM is the subject of a financial management order. The NSW Trustee is his financial manager. The NSW Trustee needs to approve any proceedings instigated by or against BHO because of the potential financial implications that such proceedings may have. The NSW Trustee has a fee agreement with BHM in relation to proceedings for professional negligence against one of BHO's former psychiatrists and in relation to his defence of BHO against the charge of assaulting his former wife. 20A client must have the capacity to enter a contract for legal services. A lawyer must be reasonably satisfied that their client has the mental capacity to give instructions. Otherwise, he or she must not represent the client: Goddard Elliott (a firm) v Fritsch [2012] VSC 87 at [569] per Bell J. Based on the evidence before it, the Guardianship Division decided that it was preferable for BHO to be represented by a "separate representative" whose role it is to conduct the proceedings in his best interests. 21 BHM submitted that the Guardianship Division breached the rules of procedural fairness by failing to grant him an adjournment. He said that he wished to obtain a full copy of the guardianship application and the material referred to in that application before applying for leave to represent BHO. 22The Guardianship Division refused the adjournment and went on to determine BHM's application for leave. We do not consider that the decision to refuse the adjournment involved any breach of procedural fairness in circumstances where the threshold issue was BHO's capacity to instruct a solicitor. BHM was aware of BHO's limitations and acknowledged that while BHO could provide factual information, he was not capable of providing instructions in relation to the forensic or strategic aspects of litigation to which he was a party. 23We have concluded that leave to appeal against two interlocutory decisions of the Guardianship Division should be refused because: (1)this appeal involves no question of principle which is subject to doubt nor will refusing leave result in any injustice; (2)the welfare and interests of BHO are best served by the appointment of a separate representative in circumstances where there is strong evidence that he lacks capacity to instruct a solicitor; (3)granting leave would unnecessarily delay the matter which is listed for hearing on 20 May 2014; and (4)granting leave would subject the parties to further costs which would be disproportionate to the issue in dispute.

Orders

The Appellant's application for leave to appeal against a decision of the Guardianship Division made on 6 May 2014 to refuse an application for an adjournment is refused.
The Appellant's application for leave to appeal against a decision of the Guardianship Division made on 6 May 2014 to refuse leave for BHM, solicitor, to represent the Appellant is refused. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Principal Registrar

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 June 2014 - Publication restriction Amended paragraphs: Coversheet 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: 12 June 2014

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