DK v The Public Guardian and RT

The facts

1. The facts relevant to the question of the parens patriae jurisdiction were not in dispute and I set out my findings in what follows.
2. In late December 2016, Mr P decided to come to Sydney from Shanghai for a short break from work. The Wife remained in Shanghai.
3. On 18 January 2017, Mr P flew from Shanghai to Sydney.
4. On the night of 21/22 January 2017, Mr P suffered a large intraventricular haemorrhage filling almost the entire left lateral ventricle. He was taken to hospital in a coma.
5. The Wife and the Daughter both came to Sydney on learning of Mr P's illness. They had not previously known of each other's existence. To put matters neutrally, they did not get along, especially in matters relating to Mr P's care.
6. Because of the dispute between the Wife and the Daughter, Mr P's hospital applied to the Guardianship Division of NCAT. A temporary guardianship order for Mr P was made in favour of the Public Guardian. That order has been extended and varied several times.
7. Mr P slowly recovered, but the extent of the physical and mental consequences of his stroke meant that he was assessed as not being a candidate for rehabilitation.
8. On 28 April 2017, under the authority of the Public Guardian, but with the consent of the Wife and Daughter, Mr P was moved to a high-care nursing home (the "Home") where he remains.
9. The currently operative guardianship order in respect of Mr P was made on 12 October 2017, and confers these functions on the Public Guardian: "FUNCTIONS: 4. The guardian has the following functions: a) Accommodation To decide where [Mr P] (aka [Mr P]) may reside. b) Health care To decide what health care [Mr P] (aka [Mr P]) may receive. c) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where [Mr P] (aka [Mr P]) is not capable of giving a valid consent. d) Services To make decisions about services to be provided to [Mr P] (aka [Mr P]). e) Travel To make decisions about whether or not [Mr P] (aka [Mr P]) should be transported to a place outside Australia. f) Passport To make a decision about whether or not the passport of [Mr P] (aka [Mr P]) should be surrendered to the guardian or some other authority the guardian nominates pending a decision by the guardian concerning travel."
10. On 1 December 2017, the Public Guardian made this decision (the "Decision"): "The decision The Public Guardian consents to you travelling to Taiwan where you will undergo residential rehabilitation treatment at a rehabilitation hospital, followed by you being accommodated at your daughter's home in Taipei."
11. The Decision included: "If you disagree with our decision If you or someone important to you disagrees with our decision, you can follow these steps in order: 1 speak to the guardian on XXXX 2 ask for a detailed report about this decision 3 ask us to review the decision 4 ask the Administrative and Equal Opportunity Division of the NCAT to review the decision again You can find out more about what to do if you disagree with our decision on the following pages."
12. On 3 January 2018, the Public Guardian provided reasons for the Decision. Those reasons included: "If you would like to request an internal review, please write to us within 28 days. If you still disagree after an internal review, you can ask the Administrative and Equal Opportunity Division of NSW Civil and Administrative Tribunal (NCAT) to review the decision. You will then need to apply within 28 days of receiving our internal review report. You may also apply directly to the Tribunal if we have not responded to your request for an internal review within 21 days."
13. The Wife did not ask for an internal review of the Decision, nor did she approach NCAT. Instead, she filed a summons in this Court, which stated: "TYPE OF ORDERS 1 Orders for the protection of [Mr P]. 2 Appeal from the Decision of the Public Guardian Decision in relation to the Guardianship of [Mr P] made on 1 December 2017. DETAILS OF APPEAL 1 The plaintiff appeals from the whole of the decision below. ORDERS SOUGHT 1 If required, leave be granted to appeal from the whole of the decision of the Public Guardian in relation to the Guardianship of [Mr P] made on 1 December 2017. 2 Allow the Appeal. 3 Set aside the Decision of the Public Guardian dated 1 December 2017 in relation to the Guardianship of [Mr P]. 4 Make orders that the Plaintiff be permitted to transport [Mr P] to Shanghai in the Peoples Republic of China forthwith. 5 Such further orders as the Court considers appropriate. APPEAL GROUNDS 6 The Public Guardian misdirected itself in deciding that it was in the best interests of [Mr P] to be transported to Taipei in the Republic of China when it did not consider or consider adequately the general principles specified in s4 of the Guardianship Act 1987."
14. The summons listed the New South Wales Trustee and Guardian as the first defendant, but an amended summons was filed on 22 March 2018 with the only change being to substitute the Public Guardian as first defendant.
15. Mr P: 1. As a result of his stroke, has experienced the abrupt onset of sever cognitive impairment in multiple domains, including memory and executive functions. 2. Has vascular dementia which is categorised in DSM5 as a major neurocognitive disorder due to vascular disease. 3. Lacks capacity to make any medical, healthcare or lifestyle decisions, in particular as to where he should receive care and who should care for him. 4. Cannot reliably express his own view as to where he should receive care and who should care for him. 5. Cannot walk or stand and must be moved in a wheelchair. 6. Is generally able to feed himself. 7. Requires assistance with all aspects of toileting, personal hygiene, dressing and grooming. 8. Does not suffer from slurred speech and can speak simply in Chinese or basic English. 9. Is fit to travel back to either Shanghai or Taiwan at the moment. 10. Would have the costs of that travel met by his travel insurance, although there is no evidence of what medical or other support he would need to make the journey.
16. Associate Professor Chanaka Wijeratne, consultant psychiatrist, whose ultimately uncontroversial evidence forms the basis of some of the findings in the previous paragraph, examined Mr P. I asked Dr Wijeratne to describe his observations of Mr P, which I accept: "So I, I did not make a full examination of him but my observation on the day was that Mr Xu was unable to walk, he was - he, he was brought into the examination room by a member of nursing staff in a bed - in a, in a chair, he made very little movement of any of his limbs. I would also comment on the fact that whilst he was in hospital he required nasogastric tube feeding but that is no longer the case, so I take it that he is able to swallow independently, but as I said, I think the main aspect of his physical presentation that day was his inability to have any motor function. I can comment further on his, his speech if you'd like as well. Q. Yes, please do. A. Yes. So in terms of his speech, what I found was that Q. Sorry to interrupt you there, but you saw him through an interpreter? A. Correct. Q. Does that have an impact on your capacity to assess his speech when he's speaking in a language that you do not understand? A. Yeah, I'd make two points. I mean there are a number of aspects of speech that I would assess. So one of the most obvious is whether someone is, is dysarthric, meaning whether they're slurring their speech and I think that is certainly a judgment I can make directly as it were without the assistance of an interpreter. Q. I think you record he wasn't, is that A. No that's right, and there are other judgments I would make with regard to his ability to understand language and I think that is clearly where an interpreter comes in. I think the, the importance of this sort of assessment is actually working with the interpreter and, and in informing the interpreter of what my, what my concerns were and whether he was able to assist me with - not so much the literal interpretation but also to some of the questions I had about whether the interpreter felt that he was answering questions adequately - sorry, directly and so on, and that is something that I did. So my sense was that his, his - he had incomplete understanding of language and certainly had incomplete ability to express himself, i.e. to communicate."
17. At the start of the hearing, I informed the parties that my chambers had been in touch with NCAT to ascertain when a review from the Decision could be heard. Ultimately, I asked the parties to contact NCAT. Mr Morahan informed the Court of the outcome of those enquiries and the parties agreed that the following could be treated as evidence in these proceedings: "MORAHAN: Over the luncheon adjournment I made a phone call to NCAT and spoke to a lady by the name of Louise Clegg who I think is one of the registrars down there and I asked her questions along the lines of your Honour's enquiry. It is a fact that the tribunal can jump to and get things on quickly if there is a reason for expedition. She mentioned that for an administrative review of a Public Guardian's decision it would be possible to get something on this week. I then asked her whether the next step - and Ms Neville can actually enlighten your Honour more than I can on this, the next step past that of course is the full panel of NCAT to review a decision of the single member, the administrative review of a single member. Ms Clegg said that yes the review panel, the panel, the appeal panel, can be constituted reasonably quickly. The only problem she said was the reservation of judgments and she said she has of course no control over that. HIS HONOUR: You're in the same boat in this Court. MORAHAN: Same boat in this Court. You can urge the decision-maker to deliver a decision promptly but she has no control over that. The average reservation time down for the single panel member is about eight to 12 weeks and the same for the appeal panel. So she said that seems to be perhaps the problem, that there's no control over the end result whereas you could get something on quickly. I then also asked her whether in both those places it would be satisfactory to present the material in the form that is now being presented to the Supreme Court in the form of a court book and exhibit book and she saw no impediment to that sort of approach. I've passed those comments on to Ms Neville and Mr Byrnes but we haven't yet come to a, I don't think, a full conclusion about whether we collectively think it's a good idea to go down there or not."
18. It was common ground that Mr P's condition has stabilised. Regrettably, he is not a candidate for rehabilitation. The task ahead is to keep him comfortable and well. Importantly, there is no evidence and it was not suggested that: 1. There was any likelihood or possibility of any imminent decline in Mr P's health. 2. Mr P is not being well cared for at the Home. 3. That the costs of Mr P's care at the Home will not be able to continue to be met if the Court were to decline to exercise the parens patriae jurisdiction in favour of allowing the review procedures from the Decision to be engaged. 4. That the current regime under the Public Guardian was, in any way, unsuitable or inadequate to provide for the best interests of Mr P. 5. That the cost of caring for Mr P at the Home is materially greater than the costs that will be incurred by either the Wife or Daughter in caring for Mr P in their respective polities.

Framework for review of a decision of the Public Guardian

1. The legislature has established a process of review of the decisions of the Public Guardian. Except at its final stage (appeal to the Supreme Court by leave on a question of law only), it is important for present purposes to note that every stage of the review is, in effect, a merits review with fresh evidence able to be adduced. A different decision can be substituted for that of the Public Guardian. In what follows, I gratefully acknowledge the assistance I have derived from Ms Neville's detailed written submissions on this topic.

Reasons for Decision Report

1. The starting point is a request for reasons from the "administrator" (the definition of which the Public Guardian meets) who made the original decision, as occurred in this case, see ss 8 and 49 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act"): "49 Duty of administrator to give reasons on request (1) If an administrator makes an administratively reviewable decision, an interested person may make a written request to the administrator for the reasons for the decision. (2) As soon as practicable (and in any event within 28 days) after receiving such a request, the administrator is to prepare a written statement of reasons for the decision and provide it to the person who requested the reasons. (3) The statement of reasons is to set out the following: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the administrator's understanding of the applicable law, (c) the reasoning processes that led the administrator to the conclusions the administrator made. (4) The regulations may: (a) exclude any class of administratively reviewable decisions from the application of this section, or (b) alter the period within which a statement of reasons under this section must be given."

Internal review of the Public Guardian's decision

1. If the decision is still disagreed with, "an interested person may apply for an internal review" of "an administratively reviewable decision" within 28 days (or a later date as allowed) of receiving the reasons: ss 53(1), (2)(d)(i), ADR Act; to be conducted by an individual other than the original decision-maker: s 53(3), ADR Act. The internal reviewer has the right to exercise the same functions as the original decision-maker: s 53(5A), ADR Act; and may affirm, vary or set aside the decision and make a decision in substitution: s 53(5), ADR Act. In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant: s 53(4), ADR Act. The review must be completed and the applicant notified within 21 days: s 53(6). Reasons must be disclosed: s 53(7), ADR Act. The internal review is taken as finalised when the applicant is notified: s 53(9), ADR Act.
2. The definition of "an administratively reviewable decision" includes decisions "made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation" (relevantly here the Guardianship Act 1987 (NSW), s 80A): s 6(2) and s 7 ADR Act; and s 30, Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act").

Administrative review by NCAT

1. Section 80A of the Guardianship Act (with the relevant procedure provided by s 55 of the ADR Act) enables an interested person to apply to the Administrative and Equal Opportunity Division of NCAT for administrative review of the internal review decision: "80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian (1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) An application under this section may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
2. Section 55 includes: "(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned."
3. In determining an application for administrative review the Tribunal can affirm, or vary, or set aside the administratively reviewable decision and make a substitute decision, or remit the matter for reconsideration by the original decision-maker "in accordance with any directions or recommendations of the Tribunal": s 63(3), ADR Act. It may exercise all of the functions conferred on the original decision-maker: s 63(2), ADR Act; and is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1), ADR Act.
4. At any stage of proceedings to determine an application for an administrative review, the Tribunal may remit the decision for further consideration to the administrator who made the administratively reviewable decision (that is, the internal reviewer in the preceding step): s 65, NCAT Act. Where the decision is so remitted, the internal reviewer may affirm, or vary, or set aside the internal review decision and make substitute decision: s 65(2), NCAT Act. The applicant may then proceed with or withdraw their application for review of the decision as varied (in the case of a varied decision) or of the new decision (in the case of a decision in substitution): ss 65(4) and (5), NCAT Act.

Internal appeal from NCAT's administrative review

1. An appeal against a decision of the Tribunal then lies with the internal appeal jurisdiction of NCAT: s 32(1)(a), ss 80 and 81, NCAT Act. An appeal against a decision of the Tribunal is to be made to an Appeal Panel, relevantly "as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds": ss 80(1) and (2)(b), NCAT Act.
2. The Appeal Panel may deal with the internal appeal by way of a new hearing and, as appropriate, permit fresh evidence or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance: s 80(3), NCAT Act.
3. Section 81 of the NCAT Act provides: "81 Determination of internal appeals (1) In determining an internal appeal, the Appeal Panel may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the appeal to be allowed or dismissed, (b) the decision under appeal to be confirmed, affirmed or varied, (c) the decision under appeal to be quashed or set aside, (d) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (e) the whole or any part of the case to be reconsidered by the Tribunal, either with or without further evidence, in accordance with the directions of the Appeal Panel. (2) The Appeal Panel may exercise all the functions that are conferred or imposed by this Act or other legislation on the Tribunal at first instance when confirming, affirming or varying, or making a decision in substitution for, the decision under appeal and may exercise such functions on grounds other than those relied upon at first instance."
4. With some not presently relevant exceptions, any decision made by Appeal Panel in an internal appeal is an appealable decision of NCAT: s 82, NCAT Act.

Appeal to this Court from the Appeal Panel decision

1. An appeal to this Court from an appealable decision (as defined in s 81(1)(a), NCAT Act) is available with leave of the Court and on a question of law only: NCAT Act s 83(1). However, the potentially restraining effect of s 34 of the NCAT Act must be noted (see paragraph [42] below).

When should the parens patriae jurisdiction be exercised?

1. In what follows, I set out a number of authorities which consider when the parens patriae jurisdiction may be exercised. Their effect may be summarised as being that where there is an existing statutory or other legal regime to protect an incapacitated person, the parens patriae jurisdiction will only be exercised in exceptional circumstances. While the class of exceptional circumstances is not closed and is entirely dependent on the facts of a particular case, the most common example of such circumstances is some lacuna or other inadequacy in the statutory or legal regime, including excessive delay, which jeopardises the interests of the incapacitated person and is not otherwise able to be remedied.
2. A policy by superior courts of deference to, or non-interference in, the processes (appellate or otherwise) of lower courts and tribunals is well entrenched in the law. So it was that in Algoni Pty Ltd v Retail Trade Industrial Tribunal (1987) 23 IR 180, the Court of Appeal said (per Kirby P; Mahoney and Clarke JJA agreeing) (at 184-185): "Secondly, it is noteworthy that no relief other than adjournment has ever been sought before the Tribunal itself. No argument has been advanced there on the basis that the claimants have been denied natural justice or the opportunity of a valid "refusal" by the Secretary. If the claimants are right that the "refusal" under appeal is no decision in law and that therefore the Tribunal has no jurisdiction to entertain an appeal from that "refusal", that is an argument which can be advanced before the Tribunal. The Tribunal may agree. If it so rules, there would then be no need for this Court to intervene. If it does not so rule, or if it rules that any defect can be cured by a de novo appeal, the claimants can then seek, so far as the law permits this course - that such decision be reviewed in this Court. They never sought to take this course. Instead they have completely bypassed the body established by Parliament, ignoring the clear statutory intention as to that body's independence. Rather than applying to the Tribunal, they have applied to this Court and the Administrative Law Division of the Supreme Court. Such a bifurcation or trifurcation of the litigation, can sometimes be justified as a so-called "fast-track" solution to an otherwise prolonged legal dispute. But, in the first instance, at least, specialist tribunals should ordinarily be given the opportunity to rule upon and determine their own jurisdiction. The law will usually preserve to them a high measure of respect in the determinations they make as to the boundaries of their jurisdiction. The argument that the Secretary himself has not sought to stay the proceedings in the Administrative Law Division of the Supreme Court is irrelevant. I do not wonder that the Deputy President decided that the matter should proceed before him in the first instance, as Parliament envisaged."
3. Closer to the circumstances of the present case, the same policy appears in s 34 of the NCAT Act: "34 Inter-relationship between Tribunal and Supreme Court (1) The Supreme Court may: (a) refuse to conduct a judicial review of an administratively reviewable decision if it is satisfied that, in all the circumstances, adequate provision is made for an internal review of the decision or an administrative review of the decision by the Tribunal under the Administrative Decisions Review Act 1997, or (b) refuse to conduct a judicial review of a decision of an external decision-maker if it is satisfied that, in all the circumstances, adequate provision is made for the review of the decision by the Tribunal by way of an external appeal, or (c) refuse to conduct a judicial review of a decision of the Tribunal if an internal appeal or an appeal to a court could be, or has been, lodged against the decision. (2) This section: (a) permits, but does not require, the Supreme Court to refuse to conduct a judicial review of a decision on a ground referred to in subsection (1), and (b) does not limit any power that the Supreme Court has, apart from this section, to refuse to conduct a judicial review of a decision. (3) In this section: internal review of an administratively reviewable decision means an internal review of the decision conducted by or on behalf of an administrator under: (a) the Administrative Decisions Review Act 1997, or (b) any other Act instead of the Administrative Decisions Review Act 1997. judicial review does not include an appeal to the Supreme Court under this or any other Act."
4. The relationship between the statutory and inherent powers of the Court in protective matters has been discussed in a number of considered and, if I may respectfully say so, learned judgments of the current Protective List Judge, Lindsay J. For example, in P v NSW Trustee and Guardian [2015] NSWSC 579, his Honour said (and I respectfully adopt): "25 The efficacy of the administration of the State's legal system for the protection of those in need of protection depends, in large part, on adoption by the Court of practice conventions in exercise of the jurisdiction it enjoys as a superior court. Reserving all its powers for cases in which they may be needed, the practice of the Court is to exercise purposeful restraint in deployment of its inherent jurisdiction, with the object of facilitating the work of statutory tribunals, and channelling appeals from tribunal decisions through the regulatory framework for which legislation (including clause 14) specifically provides. A recent confirmation of this approach can be found in CAC v The Secretary Department of Family and Community Services [2015] NSWCA 105 at [15]-[16]. 26 The work of the Court in its administration of protective jurisdiction is, and for the due administration of justice in New South Wales must be, integrated with that of statutory authorities which bear the heavy burden of routine cases: in the finding of facts, in the making and revocation of orders, and in the day-to-day management of an elaborate administrative regime designed to protect the person and estates of individuals in need of protection. 27 Of these statutory authorities, three are quasi-judicial bodies staffed with personnel with specialist expertise, supported by administrative arrangements dedicated to the performance of specialist functions: (a) NCAT's Guardianship Division focuses upon individuals unable, independently, to manage their person or property. (b) the Mental Health Review Tribunal focuses on forensic patients and, more generally, the care and treatment of people with a mental illness or mental disorder. (c) the Children's Court of NSW focuses on individuals under the age of 18 years, variously described as "minors", "infants", "children" and "young persons" depending on context. … 29 The machinery of government through which the Court's protective jurisdiction is exercised - the administrative support provided to the Court by government - the rules of court and procedures through which business of the Court is transacted - changes from time to time without detracting from the operation of the Court's inherent and supervisory jurisdictions: In re WM (a person of unsound mind) (1903) 3 SR (NSW) 552 at 561, 567, 569 and 570. In practice, this means that an exercise of protective jurisdiction by the Court is able, in the interests of a person in need of protection, to call upon an optimal mix of inherent and statutory jurisdiction. In the language of an earlier generation the Court, as a superior court, does not work within the constraints within which an "inferior", statutory court or tribunal must operate. Nevertheless, the administrative regime of government within which the Court must act is important to an effective operation of its protective jurisdiction. … 39 In exercising the jurisdiction it has to grant relief to, or in relation to, a person such as the plaintiff (in respect of whom there is a contest about capacity for self-management) the Court must remain mindful of the purpose for which its jurisdiction exists, and the need to ensure the effective operation of the statutory authorities upon whose work it relies to deal with routine business. … 52 The purposive character of the protective jurisdiction (including that exercised by the Guardianship Division of NCAT, and the Mental Health Review Tribunal, by legislation) is governed by a central informing idea: that the jurisdiction exists for the care of those who are not able to take care of themselves (Secretary Department of Health and Community Services v JWB and SMB (Marion's Case) (1992) 175 CLR 218 at 258), and that an exercise of the jurisdiction affecting a person in need of protection must be for the benefit, and in the best interests, of that person as an individual, not for the benefit of the state, or others, or for the convenience of carers (Re Eve [1986] 2 SCR 388 at 409-411, 414, 425-428, 429-430, 431-432 and 434; 31 DLR (4th) 1 at 16-17, 19, 28-30, 31, 32 and 34). Implicit in the focus on a person in need of protection "as an individual" is respect for his or her autonomy. … 111 Nothing in the Civil and Administrative Tribunal Act, the Guardianship Act, the NSW Trustee and Guardian Act or the Powers of Attorney Act deprives the Court of its inherent, protective jurisdiction. Nevertheless, in its exercise of that protective (parens patriae) jurisdiction, the Court is vigilant against allowing overly free access to the jurisdiction in circumstances in which parties might seek to circumvent, or set at nought, a process of appeal from a statutory court or tribunal established as a specialist jurisdiction designed to bear the burden of routine cases. 112 Conforming to a model found in several common law jurisdictions, the Court's parens patriae jurisdiction is generally reserved for dealing with uncontemplated, or exceptional, situations where it appears necessary for the jurisdiction to be invoked for the protection of those who fall within its ambit: Re Eve [1986] 2 SCR 388 at 411; 31 DLR (4th) 1 at 17. 113 In the exercise of parens patriae jurisdiction over minors, the Children's Court of NSW exercises specialist, statutory jurisdiction, subject to an appeal to the District Court of NSW. In those cases, the Court exercises caution in entertaining parens patriae jurisdiction lest it undermine the integrity of the procedure for appeals to the District Court. The standard approach is that of Palmer J in Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40], supplemented by that of White J in Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 and cases cited therein. Recent examples are Re Baby S [2014] NSWSC 871 at [19]-[23] and CAC v Secretary, Department of Family and Community Services [2014] NSWSC 1855 at [79]-[95]; [2015] NSWCA 105 at [15]-[16]. 114 The Court's predisposition to respect the integrity of a statutory appeal process requires reorientation in the context of an exercise of parens patriae jurisdiction over a person, incapable of managing his or her affairs, amenable to an exercise of jurisdiction by the Guardianship Division of NCAT. 115 That is because clause 14 of Schedule 6 to the Civil and Administrative Tribunal Act: (a) provides an avenue of appeal to the Court, not the District Court; and (b) that appeal procedure is able to be adapted, by orders of the Court, to embrace different appellate models. 116 The Re Victoria line of cases remains relevant (as illustrated by the reference to Re Victoria in Re B (No 1) [2011] NSWSC 1075 at [59]) but (as is illustrated by Re B (No 1) at [58] and [60]) the Court's parens patriae jurisdiction may be called in aid specifically to reinforce a statutory appellate procedure, not only to circumvent it. The essential point, here, remains, however, a concern on the part of the Court to maintain the efficacy of statutory procedures in the service, generally, of those in need of protection."
5. Turning to the question of what might constitute exceptional circumstances, the starting point is the decision of Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157. In that case, his Honour declined to exercise the parens patriae jurisdiction but took other steps to address the two and a half year delay in the resolution of Children's Court proceedings. His Honour said: "36 In my opinion, I must have primary regard to the fact that the 1998 Act provides for the operation of a specialist jurisdiction within the Court system of this State. Matters concerning the welfare of children are to be dealt with by a Children's Court consisting of Magistrates highly experienced in the determination of such issues. The 1998 Act also specifically provides that appeals from the Children's Court lie to the District Court; s.91 provides a machinery for the conduct of those appeals and vests the District Court with the appropriate jurisdiction to make all such orders as the Children's Court might make for the welfare of the child. 37 I do not think that there should be encouraged a procedure whereby persons who have fully contested a matter in the Children's Court and wish to appeal can by-pass the appeal provisions of the 1998 Act and come straight to this Court seeking to invoke its inherent wardship jurisdiction. Quite apart from the fact that to do so would sanction a departure from the appeal procedure laid down by the legislature in the 1998 Act, such an application would involve a quite different question from that which is normally raised on an appeal. In an application to this Court in its wardship jurisdiction, the question is not whether the decision of the Children's Court, or of the District Court on appeal from the Children's Court, was right or wrong or whether the wide powers conferred on a Court under the 1997 or 1998 Acts were rightly or wrongly exercised or could have been better exercised. The question before this Court will be: what is in the best interests of the child as matters stand at the date of this Court's judgment. It may be that the circumstances revealed in, or flowing from, the decisions of the lower Courts have a great part to play in the consideration of that question, but they will not necessarily be conclusive. Indeed, in certain circumstances what transpired in the lower Courts might be utterly irrelevant to the question before this Court in the exercise of its inherent jurisdiction. 38 That this is so is demonstrated by the fact that an order of this Court in its parens patriae jurisdiction does not set aside an earlier order made by a statutory Court such as the Children's Court; the statutory Court's order still stands although in a sense it may be said to be superseded where it is inconsistent with this Court's order, so that an injunction in the nature of prohibition would lie to restrain the statutory Court from enforcing its earlier inconsistent order: see In re Harris 37 SR(NSW) 17, at 28-29 per Jordan CJ and Long Innes J, and at 31-32 per Maughan AJ. 39 As I have said earlier, this Court should not encourage any process by which those dissatisfied with the result of proceedings in the Children's Court can simply set at naught the proceedings in that Court and come afresh to this Court, invoking its parens patriae jurisdiction in order to argue all over again the matters that have been debated before the lower Court. If that were to be in any way encouraged, then parties would inevitably face the risk of being involved in a multiplicity of uncontrolled proceedings fought in the Children's Court and in the Supreme Court, with the distinct possibility of conflicting concurrent orders obtained in the Supreme Court and in the lower Court. 40 What I have said indicates, in my view, the approach which, as a general rule, this Court ought to adopt when its wardship jurisdiction is sought to be invoked in what is in substance an appeal from a decision of the Children's Court. This approach is supported, in my opinion, by decisions of this Court such as Re Weir (1953) 70 WN(NSW) 78; Ping v Van Der Kroft [1982] 2 NSWLR 731; T v H (1985) 3 NSWLR 270, at 274; and Re Anna, Bruno, Courtney and Deepak (supra) at paras.20 to 22. Of course, as these authorities indicate, there may be exceptional circumstances in a particular case which justify the Court in departing from that general approach. 41 In the present case, DOCS says that exceptional circumstances are constituted by the inordinate delay which Victoria has suffered in the determination of her custody status in the proceedings which have so far occupied the Children's Court. I am the first to agree that it is a truly appalling state of affairs that this child's custody status should have been the subject of such protracted proceedings. By this, I do not intend to criticise in the slightest degree the conduct of the case by the learned Magistrate in the Children's Court. I very well appreciate there are constraints on the resources of that Court so that it will often be impossible to give large blocks of time to the hearing of a complex case, such as this one undoubtedly is. The fact of the matter remains, nevertheless, that completely unacceptable delay has occurred in the determination of this dispute. 42 However, that delay alone does not justify, in my opinion, the parties in leap-frogging the appeal provisions of the 1998 Act and coming directly to this Court. To allow such a process would be to thrust onto this Court the burden of appeals from the Children's Court simply on the ground that the District Court lacks sufficient resources to discharge its obligations to hear cases, particularly urgent cases, in a timely manner. To allow that process would be to shift the burden of the problem from one Court to another without addressing its cause."
6. In Re Frances and Benny [2005] NSWSC 1207, Young CJ in Eq, as his Honour then was, said (emphasis added): "17 The parens patriae jurisdiction derives from the royal prerogative and although its origins probably go back to the time of Edward III, in more recent centuries the Chancery Division in England and the Equity Court in New South Wales have been responsible for exercising the Queen's power to do good to all her subjects, particularly to those who are children or otherwise incapable of looking after themselves. In exercising that jurisdiction the court's concern is predominantly for the welfare of the person involved. It is not a jurisdiction that is bogged down at all with any technicalities. It is a quite separate jurisdiction to the supervisory jurisdiction that is committed to this court by way of prerogative orders under which this court supervises inferior courts and tribunals to make sure that they do justice and right to all people before them. 18 I agree with respect to what was said by Palmer J in Re Victoria (2002) 29 Fam LR 157 that the parens patriae jurisdiction is only to be exercised in exceptional cases. However, one of those exceptional cases is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief."
7. This last quoted dictum was, for example, approved by White J (as his Honour then was) in Re Frieda and Geoffrey [2009] NSWSC 133 at [45]; (2002) 40 Fam LR 608: 45 However, as Young CJ in Eq said in Re Frances and Benny [2005] NSWSC 1207 (at [18]), one of the exceptional circumstances in which the parens patriae jurisdiction may be exercised is where it is urgently required that some protective order be made and the court can see that other curial processes may not be able to provide instant relief.

Exceptional circumstances in this case?

1. Mr Morahan submitted that this was an unusual case in which exceptional circumstances had been demonstrated. Mr Byrne submitted to the contrary.
2. In answer to an early question of mine during his opening, Mr Morahan candidly submitted that there were two reasons why the Court should now entertain these proceedings.
3. First, he said that the Wife had approached the Court because the dispute would have got to this Court in any event. This was a case where the enmity between the parties meant that all of the appeal avenues would ultimately have been exhausted.
4. I do not think this first reason is an exceptional circumstance within the meaning of the authorities I have set out above. It is a circumstance that could describe much litigation. In any event, had the review process been followed, the matter would only have come to this Court by leave on a question of law. By seeking to invoke the parens patriae jurisdiction, the Wife is asking for a hearing on the merits. The legislative scheme is predicated on the merits being resolved by NCAT.
5. The second reason advanced by Mr Morahan was, putting it less elegantly than he did, that the parties were "in Court and ready to go" and the parties should not now be subjected to the further delay if the Court declined to exercise jurisdiction. That is not an exceptional circumstance but is a situation entirely of the Wife's own making. It is the litigious version of the adage that it is sometimes better to ask forgiveness than permission. It is an appeal to the Court's well-known preference, consistent with s 56 of the Civil Procedure Act 2005 (NSW), to avoid delay and minimise expense. However, in this case, it is ultimately a self-serving submission that should be resisted when it comes from a party that has taken the chance, for whatever reason, to attempt to bypass the statutory review scheme in the hope of demonstrating the requisite exceptional circumstances. In any event, it is clear (see paragraph [25] above) that NCAT can hear the matter very promptly.
6. In final address, I understood Mr Morahan's articulation of the exceptional circumstances to be: 1. Mr P was a foreign citizen who, by unfortunate accident, was subject to the Australian legal system in relation to incapable persons, and 2. There was really only one decision to be made here: "to where should Mr P be returned?"
7. I do not agree that either of these is an exceptional circumstance in the requisite sense. Without limiting what can constitute exceptional circumstances, it is clear from the authorities to which I have referred above that exceptional circumstances generally relate to some failure or inadequacy (including legislative lacuna or procedural delay) in the relevant statutory scheme, alongside which the parens patriae jurisdiction undoubtedly exists. There is no such failure or inadequacy here. The review scheme is just as well able to deal with Mr P's situation as for an Australian. Mr P's foreign status or accidental presence in Australia are not bases to claim some form of exemption from Australian law.
8. Nor is it an exceptional circumstance that there is only one decision to be made. As the parties agreed, and the fact of a three-day hearing has demonstrated, the question on the merits of Mr P's place of repatriation is a difficult one. However, it is also classically one for which the guardianship regime, including review of its decisions by NCAT, is well-suited as a specialist jurisdiction with an emphasis on informality of procedure, accessibility and, as far as possible, speed. Absent the fact that Mr P is a foreign citizen, this dispute is one which this Court has seen played out in relation to incapacitated Australians: by and with which family member should the person be cared for and live? More importantly, it is a kind of dispute which I am confident is not one to which NCAT is a stranger.
9. I have not reached my conclusions lightly. These reasons have been delivered ex tempore to minimise any delay in the parties approaching NCAT. I have carefully considered whether it would be a triumph of form over substance to, in effect, insist that the review procedures be observed when the parties were "here and ready to go" and that there would be delay and additional expense in getting to a resolution of merits if the matter is to be dealt with by NCAT.
10. The essence of the parens patriae jurisdiction in cases such as these is that, in exceptional circumstances, the public interest in the proper observance of the regulatory scheme will yield to whatever is in the best interests of the incapable person. However, absent exceptional circumstances, the regulatory scheme should prevail.
11. I have kept Mr P's best interests at the forefront of my considerations. Had the Wife been able to demonstrate any prejudice to Mr P from the decision to which I have come - other than delay in and of itself - then the outcome would almost certainly have been different. In reaching my conclusion, I also have not overlooked three other matters put by Mr Morahan in his thorough submissions.
12. First, on the question of prejudice, he drew attention to general principles (e) and (g) under s 4 of the Guardianship Act 1978 (NSW) as important considerations relevant (as a matter of common sense rather than law) to the present situation: "4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: … (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, … (g) such persons should be protected from neglect, abuse and exploitation,"
13. He submitted that while Mr P was undoubtedly well-cared for at the Home, he was, in effect, a stranger in a strange land. He was separated from his family, cultural and linguistic environment. The Court, he submitted, should not permit that to continue.
14. The force of that otherwise attractive submission is blunted by the medical evidence of Mr P's severely limited cognition. In any event, in all the circumstances, and especially in the absence of any proven adverse health or financial consequences of any delay, it does not outweigh the public interest in avoiding the bypassing of the review scheme.
15. Second, Mr Morahan submitted that there was clear evidence of two incidents of abuse or exploitation of Mr P by the Daughter and her mother. These concerned getting Mr P to sign purported Chinese legal documents and take part in the video link to some kind of Chinese pre-trial procedure in Shanghai.
16. I do not propose to make any findings about those matters. They will undoubtedly be ventilated in NCAT. If the Public Guardian does not consider she has power to liaise with the Home about the circumstances in which people can have access to Mr P in the Home, that can be raised by the Wife or the Public Guardian at the next review of the guardianship order, which I am informed is scheduled for 7 November 2018.
17. Third, Mr Morahan submitted that the Daughter had not raised any objection to the Wife's proposed reliance on the parens patriae jurisdiction until her submissions were served on the last business day before the hearing. While this may be relevant to costs (see paragraph [69] below), I do not accept this somehow now prevents the Daughter from taking the point or provides a basis (exceptional or otherwise) for the parens patriae jurisdiction to be exercised.

Conclusion

1. The question remains as to how best to give effect to the Court's conclusions. The parties should, unless they are able to come to some other agreement, now proceed to engage the review procedures in NCAT. As was made clear (see paragraph [25] above), that can be done using the materials prepared for the hearing before me. NCAT "is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice": s 38(2), NCAT Act. Accordingly, if it wishes, NCAT will also be able to have regard to the transcript of evidence and submissions before me, as well as evidence which I have rejected (because this Court is bound by the law of evidence).
2. I also note that this should not be a case where an internal review is any longer required. While it is a matter for the member of NCAT, speaking for myself, it seems clear that in order to protect Mr P's interests from any unnecessary further delay, and there being no prejudice to any party from the delay caused so far by the conduct of these proceedings, NCAT has a proper basis to proceed as soon as possible (cf s 55(4)(b) of the ADR Act set out in paragraph [32] above).
3. Nevertheless, keeping Mr P's best interests firmly in mind, I do not propose in the first instance to dismiss the amended summons. I will stay these proceedings for a time to enable the review process to be worked through, while keeping open the prospect of these proceedings being reactivated should something happen which might constitute an exceptional circumstance. However, for good order, and in the hope that the question of Mr P's future place of residence can be resolved within that time, I will order the proceedings dismissed with effect one year from now (subject to any further order of the Court).

Costs

1. I have now heard argument as to the costs of these proceedings. Mr Morahan submitted that, in accordance with what he described as "the usual practice in protective matters", there should be no order as to costs. The Public Guardian does not seek her costs. The Daughter, however, does seek her costs of the proceedings.
2. The question of costs in the protective jurisdiction, albeit in a slightly different legislative context, was considered by Lindsay J in CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344. His Honour there identified the essential question as being, "What is the costs order which, in all circumstances, seems proper?": "13 In any event, the starting point is to notice, first, the Court's plenary power to make an order for costs (Civil Procedure Act 2005 NSW, section 98) and, secondly, the general rule (embodied in the Uniform Civil Procedure Rules 2005 NSW, rule 42.1) that costs follow the event. 14 The Supreme Court is not a "no costs" jurisdiction. Although the Court has a wide costs jurisdiction, the general rule remains that costs follow the event, unless the Court otherwise orders. Parties to proceedings in the Court conduct litigation at their own risk as to costs. 15 In the protective jurisdiction, because of the purposive nature of the jurisdiction (confirmed by Marion's Case (1992) 175 CLR 218 at 258-259) and accumulated experience, the Court may proceed on the basis that it is generally necessary, and appropriate, to ask "What, in all circumstances, seems the proper order to make in relation to costs?" 16 This question gives due recognition to the following factors, amongst others: (a) The protective jurisdiction of the Court is generally governed by the "welfare principle" (that the welfare and interests of each person in need of protection, here the plaintiff's children, are the paramount consideration) and an associated concern to ensure that whatever is done, or not done, is done in the interests, and for the benefit, of the particular person in need of protection. (b) The Court needs to be alive to the possibility that private individuals who would otherwise be concerned to act to protect a person in need of protection might be deterred from acting if bound to submit to a costs order on an unsuccessful application made by them to the Court, even though reasonably made: CCR v PS (No 2) (1986) 6 NSWLR 622 at 640F. Cf, Wilson v Department of Human Services; Re Anna (No 2) [2011] NSWSC 545 at [95]-[108]. (c) Taking into account the best interests of children the subject of proceedings, the Court needs to hasten slowly in burdening a parent with an obligation to pay costs, particularly in circumstances in which a final outcome for the children in Children's Court proceedings remains undetermined: Re Kerry (No 2) - Costs [2012] NSWCA 194 at [12] and [17]-[18]. (d) Proceedings relating to the welfare of children, or any other person in need of protection, are not adversarial in the sense encountered in ordinary civil litigation but, rather, are attended by a strong, special public interest element. … 19 In these proceedings, starting from with the proposition that "costs follow the event", but moving quickly to the question "What is the costs order which, in all the circumstances, seems proper?", the supplementary question arises: What is meant by "proper"? 20 It is not necessary to attempt an exhaustive definition of that term, "proper", or to elevate it beyond its station. The Court has to deal with a wide variety of situations, as variable as the human condition, in exercise of its protective jurisdiction, and in the supervision of the Children's Court. 21 Nevertheless, in these proceedings, it might be said that costs should not follow the event if, although there is a party capable of being characterised as "the losing party" (uncontroversially, the plaintiff), that party has acted on reasonable (albeit, possibly, mistaken) grounds and has acted reasonably in the conduct of proceedings in the Court."
3. In determining the question of costs, at least as between the Wife and the Daughter, these proceedings, like so much of their interaction in relation to Mr P, were undoubtedly conducted adversarially. The Wife has lost. In addition to those considerations, the matters relevant to the exercise of the Court's discretion on costs are: 1. The, on its face, misconceived nature of the Wife's summons and amended summons. 2. The fact that, for a considerable period of time - indeed up to the point of the filing of the Daughter's submissions on the Friday before the hearing commenced (5 October 2018) - there was no complaint or attempt to seek an explanation by the Daughter's representatives from the Wife's representatives as to the jurisdiction that was being invoked. It is only in the Daughter's submissions filed and served on 5 October 2018 that the objection to the exercise of the parens patriae jurisdiction was notified. 3. Correspondence has been tendered between the Crown Solicitor (for the Public Guardian) and the Wife's lawyers of 4 June 2018, in which the Crown Solicitor enquired as to the jurisdiction that the Wife wished to invoke in these proceedings. That was responded to by the Wife's lawyers in a letter of 12 July 2018, making clear that it was the parens patriae jurisdiction. However, that correspondence was not copied to the Daughter's lawyers until 14 September 2018. There were entirely proper reasons why that correspondence was not copied until that date and I make no adverse observation in relation to that matter. Nevertheless, it remains the case that even after being notified on 14 September 2018 of the intended reliance on the parens patriae jurisdiction, the Daughter did not take any steps to complain or suggest that the proceedings be stayed, pending the review of the Decision being completed by NCAT.
4. Mr Morahan laid particular emphasis on the fact that at no time until the filing of her submissions did the Daughter make any complaint or take any steps in response to the effect that these proceedings should not continue. There is force in that submission. On the other hand, the Wife is not immune from criticism by reason of the, putting it neutrally, opaque nature of the case as appeared in her summons and amended summons. It also remains the case that, having conducted the hearing in reliance on the parens patriae jurisdiction, the Wife has failed to persuade the Court that the jurisdiction should be exercised.
5. Taking all of those matters into account and asking the question "what is the costs order which, in all circumstances, seems proper?" I have reached the conclusion that there ought to be no order as to costs of the proceedings up to and including 5 October 2018, but that thereafter the Wife should pay the Daughter's costs of and incidental to the proceedings on and from 6 October 2018 up to and including today. The significance of 5 October 2018 is that is the day on which (in the afternoon) the Daughter's submissions were served objecting for the first time to the exercise of the parens patriae jurisdiction.

Orders

1. The Court's orders are: 1. Stay the proceedings up to and including 11 October 2019; 2. Subject to further order, dismiss the amended summons with effect on and from 12 October 2019; 3. Grant liberty to any party to apply on three days' notice to the Protective List Judge; 4. Grant leave to the parties to use and disclose any of the evidence and materials prepared for the purposes of these proceedings (including the transcript of these proceedings) for the purposes of any review hearing or related application in NCAT (including, for the avoidance of doubt, to provide those materials and evidence to the separate representative who has been appointed in the guardianship proceedings for Mr P); 5. Order the plaintiff to pay the second defendant's costs of and incidental to these proceedings incurred on and from 6 October 2018 up to and including this morning's hearing; 6. Note that other than in the preceding order, the Court makes no order as to the costs of the proceedings.

Amendments 15 October 2018 - Minor grammatical changes to paragraph 29. 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: 15 October 2018