BTH v BTI, BTJ & Ors

The Nature of the Proceedings

1. This application has a lengthy history of proceedings before the Civil and Administrative Tribunal of New South Wales ("NCAT") for guardianship and other related orders relevant to the first defendant, who is a woman of almost 99 years. The first defendant is grandmother to the plaintiff, and mother to the second defendant.
2. The guardianship issue is currently before the NCAT Appeal Panel, in that there is an appeal against a decision of NCAT to revoke, or allow to lapse, an earlier order relating to guardianship of the first defendant. As part of those proceedings, the Appeal Panel made an interlocutory decision concerning the legal representation of the first defendant, dismissing an application brought by the plaintiff to revoke leave to allow the first defendant to be represented by a particular solicitor, Ms Casey O'Mahony ("the solicitor"): BTH v NSW Public Guardian [2016] NSWCATAP 12. It is that decision which the plaintiff disputes, and asks this Court to review.
3. The summons as originally filed by the plaintiff (on 2 February 2016) sought only those orders set out at prayers 1 - 4 quoted at [1] above, together with an order for costs.
4. The power to make the orders there sought is found in s 69 of the Supreme Court Act which preserves the Court's former jurisdiction to grant relief sought by writ. However, the s 69 jurisdiction is one which is not ordinarily exercised where some other effective remedy is available.
5. Referring to NSW Breeding and Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales [2001] NSWSC 494; 53 NSWLR 559, and the authorities considered therein, Sackville AJA said, in Quach v New South Wales Civil and Administrative Tribunal [2015] NSWCA 63, at [51], that such relief will not generally be granted where there is "another equally effective and convenient remedy".
6. Another equally effective remedy available by leave to the plaintiff is provided by s 83 of the CAT Act. The relevant provision is s 83(1) which is set out as follows, "83 Appeals against appealable decisions (1) A party to an external or internal appeal may, with the leave of the Supreme Court, appeal on a question of law to the Court against any decision made by the Tribunal in the proceedings."
7. Perhaps cognisant of the general principle relating to the s 69 jurisdiction, the plaintiff subsequently filed the FA Summons, adding (in the alternative) the relief claimed at prayers 6 - 10, extracted in [1] above, and seeking orders pursuant to s 83 of the CAT Act.
8. Proceedings brought pursuant to s 83 require the Court's leave to appeal on a question of law.
9. In the grounds set out in the FA Summons the plaintiff asserts that the NCAT Appeal Panel made a number of errors of law, being (in summary form), 1. A constructive failure to exercise jurisdiction by a failure to take into account a relevant consideration, or a failure to respond to a substantial argument on the exercise of the Panel's discretion pursuant to s 45(3)(b) and s 45(4)(c) of the CAT Act. This is asserted to be an error of procedural fairness as discussed in Rodger v de Gelder [2015] NSWCA 211 at [88] - [96] and [98] - [109]. 2. Failure to take into account relevant material, being whether BTI had given informed consent to the solicitor continuing to act for her, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c), as referred to above. 3. Failure to take into account relevant material, being the NCAT decision of 27 May 2014, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c) as referred to above. 4. Failure to take into account relevant material, being the issue of confidentiality, when considering whether to exercise the discretions pursuant to s 45(3)(b) and s 45(4)(c) as referred to above. 5. Failure to provide adequate reasons. 6. Failure to take into account relevant material and apply correct legal principles, such that the findings of the NCAT Appeal Panel were unreasonable, unsupported by the evidence, and not open to it.
10. It is accepted by the second defendant that errors of the nature asserted by the plaintiff to have been made by the Appeal Panel are capable of being regarded as questions of law, consistent with what was outlined by Lindsay J in C v W [2015] NSWSC 1774 at [43], referring to Re R [2000] NSWSC 886 at [24]-[25] per Young J, and Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [11] - [13].
11. Whether leave should be granted to bring an appeal of this nature is dependent upon a number of factors. Ordinarily, an applicant for leave must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at: Carolan v AMF Bowling Pty Limited [1995] NSWCA 69; Zelden v Sewell; Henamast Pty Ltd v Sewell [2011] NSWCA 56. Questions of finality are important, as are questions of proportionality.
12. Generally, leave should be granted only where issues of principle or questions of general public importance are involved, or where there appears to be an injustice which is reasonably clear: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164.

The Decision of the NCAT Appeal Panel

1. On 21 December 2015 the NCAT Appeal Panel made orders dismissing the present plaintiff's interlocutory application for the revocation of earlier orders granting leave to the solicitor to represent the first defendant, seeking instead an order for separate representation. The Panel's reasons were delivered the following day.
2. In the reasons, the lengthy history of guardianship proceedings before the NCAT and its predecessor, the Guardianship Tribunal, were set out.
3. On 27 May 2014 the NCAT made a limited guardianship order appointing the Public Guardian as guardian to the first defendant for a period of six months. The Public Guardian was given authority by that order to make decisions about access by others to the first defendant, the nature of services to be provided to her, and to advocate on her behalf more generally. An enduring guardianship instrument made by the first defendant in favour of the second defendant on 16 March 2006 was confirmed, although its authority was suspended for the duration of the six month guardianship order. A financial management order was also made.
4. On 21 November 2014 NCAT's Guardianship Division conducted a review of the orders made on 27 May 2014, and decided that the six month guardianship order should lapse, which meant that the suspension of the powers granted to the second defendant by the first defendant under the enduring guardianship instrument also lapsed. The financial management order was confirmed.
5. On 20 January 2015 the plaintiff filed an internal appeal in relation to the decision to allow the guardianship order to lapse. The plaintiff sought to have the Public Guardian appointed the first defendant's guardian for a further period instead.
6. The appeal was ultimately heard by the NCAT Appeal Panel on 14 July 2015. The first defendant participated throughout the hearing of the Appeal with the assistance of an Italian interpreter. She exhibited considerable distress during the hearing and expressed a wish for the proceedings to end.
7. After indicating that it was minded to allow the appeal, the Panel acceded to the joint request of the parties to adjourn the matter to permit them to explore a possible resolution of the dispute without need for further hearing and orders. The proposal was that the plaintiff would discontinue the appeal proceedings if a resolution could be agreed.
8. The matter was adjourned for a period of two months.
9. Subsequently, the plaintiff asked for the appeal proceedings to be re-listed, as a negotiated settlement of the issues had not been achieved. The second defendant thereupon sought a permanent stay of the appellate proceedings, asserting that the appeal was an abuse of process. The matter was to be heard in January 2016.
10. In written submissions filed in readiness for the continuation of proceedings before the Appeal Panel, the plaintiff sought an order as follows: "[…] pursuant to s 45(3)(b) of the CAT Act that leave granted to Walsh & Blair Lawyers to represent [BTI] be revoked, and that an order be made pursuant to s 45(4)(c) of the CAT Act that she be separately represented."
11. The plaintiff asked that this issue be determined prior to the resumption of the appeal hearing proper and a hearing date to resolve the interlocutory question was fixed.
12. At the hearing, the plaintiff contended that it was not possible for the solicitor to give the first defendant "frank and fearless advice", particularly in relation to the second defendant and his bona fides, since the solicitor and the firm for which she worked had originally been engaged by both the first and second defendants to represent each during proceedings before NCAT in 2013. The plaintiff particularly relied upon the fact that financial management orders had been made in relation to the first defendant as providing both an example and evidence of the second defendant's asserted malfeasance towards the first, and the inability of the solicitor to properly advise the first defendant about these matters, against the interests of the second defendant. It was contended that the solicitor had a conflict of interest, despite the fact that she had ceased to act for the second defendant in January 2014 and, at the time of hearing, acted only for the first defendant, with the consent of the second defendant.
13. The plaintiff dismissed the first defendant's strongly asserted desire to have the solicitor continue to act for her as a preference indicated by an individual whose capacity to give informed consent was or was likely to be impaired.
14. The first defendant had told the Panel, "I want Casey and nobody else. If don't have Casey, I will withdraw myself from this hearing. I'm sick and tired of the whole business. At my age, being subjected to this is ridiculous."
15. She later added, "I have made it clear who I want as my lawyer and I don't want anybody else. And if I were asked to find another lawyer, I would refuse to do so and I would refuse to attend any more of this hearing."
16. In considering the competing arguments as to the representation of the first defendant, the Appeal Panel set out and had regard to the relevant legislative provisions. The Appeal Panel first referred to s 45 of the CAT Act. "45 Representation of parties (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: (i) for that person to represent the party, or (ii) in the case of representation by an Australian legal practitioner - for a particular or any Australian legal practitioner 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. Note. A Division Schedule for a Division of the Tribunal may, in some cases, allow certain kinds of persons to represent parties in proceedings allocated to that Division without requiring the leave of the Tribunal. (3) The Tribunal may at its discretion: (a) grant or refuse leave under subsection (1) (b), and (b) revoke any leave that it has granted. (4) The Tribunal may: (a) appoint a person to act as guardian ad litem for a party, or (b) appoint a person to represent a party, or (c) order that a party be separately represented." (4A) The Tribunal may, at its discretion, revoke any appointment or order made under subsection (4)."
17. The Appeal Panel acknowledged that at the time the Appeal Panel granted leave for the first defendant to be represented by the solicitor a currently repealed version of s 45(1)(b) was in force. The historical provision set out as follows, "(1) A party to proceedings in the Tribunal: … (b) may be represented by another person only if the Tribunal grants leave for the person to represent the party."
18. In any case, the NCAT Appeal Panel determined at [63] that "…nothing turns on the legislative amendment in terms of the current application."
19. In addition, r 32 of the Civil and Administrative Tribunal Rules 2014 (NSW) provides, "32 Granting and revocation of leave for a person to represent party (1) In dealing with an application under section 45 of the Act for leave to be granted to a person (other than an Australian legal practitioner) to represent a party to proceedings, the Tribunal is to have regard to: (a) such of the following circumstances as it considers are relevant to the proceedings: (i) whether the proposed representative has sufficient knowledge of the issues in dispute to enable him or her to represent the applicant effectively before the Tribunal, (ii) whether the proposed representative has the ability to deal fairly and honestly with the Tribunal and other persons involved in the proceedings, (iii) whether the proposed representative is vested with sufficient authority to bind the party, and (b) any other circumstances that it considers relevant. (2) The Tribunal may revoke leave granted to a person to represent a party to proceedings only if the Tribunal is satisfied that: (a) the party no longer consents to the person representing the party, or (b) the person applied for leave to represent that party without the consent of the party, or (c) the person does not have the qualities referred to in subrule (1) (a) (i) or (ii) to act as the party's representative, or (d) the party is, or has become, incapable of instructing the representative, or (e) any other grounds are present that the Tribunal considers sufficient to justify the revocation."
20. The question of whether to allow a party to be represented is a discretionary one.
21. In its decision, the NCAT Appeal Panel set out the basis upon which it declined to revoke the leave earlier granted to the first defendant to be represented by the solicitor. Having made that decision the Panel did not go on to consider the issue of separate representation for the first defendant.
22. The Panel concluded that there was no basis upon which to infer, as it was asked to do by the plaintiff, that the solicitor had taken her instructions from the second defendant or his family, rather than from the first defendant; was in possession of confidential information from the second defendant concerning family relationships; or had a conflict of interest.
23. The Panel heard from the solicitor as to the source and nature of her instructions, and took into account the firmly expressed wishes of the first defendant when concluding that the inferences it was asked to draw were simply not available. It noted that, if there were any confidential information in the possession of the solicitor (confidential information not identified by the plaintiff), any prejudice would flow to the second defendant, not the first, and the second defendant took no issue with the first defendant's representation.

The Arguments Before This Court

1. The plaintiff submitted that the "…nub of the situation leading to these proceedings for a remedy in the nature of judicial review…" (plainitff's written submissions filed on 21 March 2016, at [7]) is that the solicitor and her firm acted for both the first and second defendants from about September 2013, and until a time when NCAT made findings as to the necessity for a financial management order, and that fact renders it impossible for the solicitor to continue to act for either defendant. It is contended that the solicitor and her firm have, by "proper presumption", confidential information from both the first and second defendants and, separately, a conflict of interest, and the Panel should have exercised the powers available to it under s 45 and r 32 to revoke leave to the solicitor to act for the first defendant. In failing to do so, the Panel misunderstood and misapplied the law, failed to engage with the arguments, made illogical findings, and provided inadequate reasons.
2. The second defendant submits that the s 69 jurisdiction should not be invoked as another review mechanism is available and there is nothing exceptional about the issues raised by the plaintiff. Nor should leave be granted to bring a s 83 appeal, because the proposed appeal is wholly without merit, and questions of finality, proportionality, and the absence of any issue of public importance tell against a grant of leave. It is contended that the plaintiff has failed to identify any confidential information from the second defendant that is in the solicitor's possession and, even if such information existed, the second defendant - whose confidence it was - makes no complaint. In those circumstances, there could be no conflict of interest where the solicitor no longer acts for the second defendant.

Determination

1. Applications made pursuant to s 69 of the Supreme Court Act should be relatively uncommon: the jurisdiction there made available is not one to be invoked readily or for issues which can be adequately addressed through other means of review.
2. Applications made pursuant to s 83 of the CAT Act require leave, and a grant of leave should only be made where justice truly demands it.
3. Here, what is at issue is an interlocutory decision of an Appeal Panel of a tribunal. It is important to bear in mind that part of the reason for the creation of judicial tribunals is to facilitate the speedy resolution of issues in a forum where legal costs and complexity are kept to a minimum. That overall aim is necessarily diminished where the jurisdiction of this Court is too readily sought and granted.
4. Necessarily, review proceedings before this Court add a layer of expense, difficulty, delay, and personal stress to litigants which should only be entertained where true injustice would otherwise be occasioned.
5. Having carefully considered the evidence before the NCAT Appeal Panel, its decision, and the submissions of the parties before me, I can see no injustice wrought by the orders of the Appeal Panel such that the intervention of this Court is in any way warranted.
6. Turning specifically to the complaints raised by the plaintiff, I am similarly unable to see anything in the decision of the Panel which warrants intervention.
7. The plaintiff complains (ground 7(a)) that the Panel failed to deal with her case and the arguments advanced in support of it, leading to unfairness, but it is difficult to see any basis for this grievance if careful attention is given to the decision of the Panel. After setting out the background and history of the plaintiff's application, the Panel referred in detail to the arguments and submissions made on behalf of the plaintiff, at [42] - [43], and [51] - [53]. Consideration of each of the arguments followed at [64] - [80]. More could not be required or be deemed necessary.
8. At grounds 7(b) and (c) of the FA Summons the plaintiff contends that the third defendant failed to take relevant matters into account, particularly the earlier NCAT decision relating to financial management orders, when determining the issue of informed consent by the first defendant to her representation by the solicitor. I am unable to see any such error. The Panel was well aware of the history of the matter and the basis upon which financial management orders were made. The orders made and the findings that underpinned them simply did not have the significance the plaintiff argues for.
9. The Panel had regard to those findings, but the issue to be determined was a separate one and turned on separate considerations. NCAT's conclusions as to the necessity of financial management orders was not of direct relevance to the question of whether the first defendant was able to give proper consent to the solicitor continuing to act for her in circumstances where she and her firm had previously acted for the second defendant.
10. Additionally, in determining this matter the Panel had the benefit of having seen and heard from the first defendant, who articulated her wishes clearly and forcefully.
11. I see no basis upon which to conclude that the Panel failed to consider all relevant considerations when reaching its conclusions, including giving weight to the wishes of the first defendant, on the basis that she was capable of instructing the solicitor, even with knowledge of the reasons for the financial management orders.
12. The issue of confidentiality and the Panel's purported failure to have regard to it is raised at ground 7(d) of the FA Summons. The difficulty with the plaintiff's contentions in this regard is that no confidential information available to, or in the knowledge of, the solicitor, was ever identified to the Panel. As the decision of the Panel noted, for the discretion to be exercised, such that leave to the solicitor to act for the first defendant was revoked, it was necessary for the plaintiff to demonstrate that the solicitor, in fact, had possession of the second defendant's confidential information, and was without consent to its disclosure. No confidential information was identified and, even if such information existed, the second defendant had made it clear that he was content for the first defendant to have access to it. The Panel referred, in this regard, to authority such as Prince Jefri Bolkiah v KPMG [1999] 2 AC 222, as applied by Brereton J in Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561, at [32].
13. It is difficult in these circumstances to see how the first defendant could have been prejudiced by the solicitor continuing to act for her. Her strong wish that she continue to so act may be taken as an expression from the first defendant that she neither saw, nor was troubled by, any putative prejudice. The conclusions of the Panel in this regard were open to it.
14. Whilst the plaintiff complains that the Panel's asserted errors resulted in findings that were irrational, unreasonable, unsupported by the evidence, and not open to it, I am unable to accept that argument. The reasons given by the Panel for the decision - which I regard as both clear and thorough, contrary to the plaintiff's ground set out at 7(e) of the FA Summons - provide a detailed consideration of the evidence, the arguments, and the law, and set out a sound basis for the decision reached.
15. In my view, it was open to the Panel, at this interlocutory stage of the appellate proceedings, to decline to revoke the leave formerly given to the first defendant to be represented by the solicitor. I am unable to conclude that there was error or that the consequences of any such error were, in any event, such as to require the intervention of this Court.
16. This is not a matter in which the Court's s 69 jurisdiction should be exercised: the issues to be litigated are not such as could be characterised as exceptional, requiring this Court to review the conclusions of the NCAT Appeal Panel, and there is an equally convenient statutory relief available to the plaintiff, pursuant to the CAT Act.
17. When considering whether leave should be granted to appeal pursuant to s 83, I am not satisfied that either, the proposed appeal has merit, or justice demands a grant of leave. These are tribunal proceedings where questions of efficiency and costs are relevant. I am unable to conclude that there is any error in the decision of the Appeal Panel such that those considerations should be displaced. There is no question of any injustice to the plaintiff as a consequence of the decision, and nor can I see any injustice to the first defendant in allowing the orders to stand. Indeed, it might well be concluded that injustice could be occasioned to the first defendant had the decision been otherwise.
18. I propose to dismiss the FA Summons.

Costs

1. Each party sought an order for costs.
2. As I have determined that the FA Summons should be dismissed, costs will be awarded in favour of the second defendant.

orders 1. Leave is granted to the plaintiff to rely upon the Further Amended Summons. 2. Leave to appeal the decision of the Appeal Panel of the Civil and Administrative Tribunal of New South Wales of 15 January 2016 is refused. 3. The Further Amended Summons is dismissed. 4. Costs awarded against the plaintiff, in favour of the second defendant.

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: 28 April 2016