DNY v Public Guardian [2018] NSWCATAD 254 | Case summary

NCAT Administrative and Equal Opportunity|2018-10-31

REASONS FOR DECISION

DNY has applied to the Tribunal for review of a decision made on 6 July 2018 by the Public Guardian that his wife, DPU, will move from an aged care facility in Regional NSW to a different aged care facility when a place becomes available.
DNY wishes DPU to remain at the aged care facility where she has been since 2015 as she has regular visitors including him who visits at least once a day, and he feels the care provided to DPU is adequate.
The Public Guardian was appointed as DPU's guardian in November 2015. The Public Guardian decided to move DPU to the other aged care facility because DPU would move from a 4 bed to a 2 bed room, and she would have greater family contact particularly with her father. The Public Guardian acknowledges that DNY would have to travel further, however considers that the decision would not prevent him from visiting DPU. The Public Guardian considers that DPU's care needs can be met at either facility.
The decision to move DPU is supported by her two daughters, DPS and DPT. On 2 October 2018 DPS and DPT applied to be joined as parties to the application for administrative review.

Legislation

The Tribunal has administrative review jurisdiction over a decision, or class of decisions, of an administrator if enabling legislation provides that applications may be made to the Tribunal for administrative review: s9(1) Administrative Decisions Review Act 1997 (ADR Act). The relevant enabling legislation in this matter is s 80A of the Guardianship Act 1987, which confers jurisdiction on the Tribunal to review any decision made in connection with the exercise of the Public Guardian's functions under that Act as a guardian, and which is prescribed. All decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under that Act as a guardian are prescribed: cl 17 Guardianship Regulation 2016. As the spouse of DPU, DNY is entitled to apply for review: s 80A(2)(b) Guardianship Act.

Application for Joinder

DPS and DPT wish to be joined as parties because they strongly support the Public Guardian's decision and wish to provide evidence in support.
DNY has no objection to the joinder of DPS and DPT as parties. The Public Guardian supports the application for joinder.
The parties and the joinder applicants were invited to make submissions as to whether the joinder application should be determined on the papers. No submission was made opposing that course, and the Public Guardian submits that the application can be determined without a hearing. The Tribunal is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering the written submissions and material lodged provided to the Tribunal, and pursuant to s 50(2) of the NCAT Act dispenses with a hearing.
The principles to be applied in determining an application for joinder were discussed by the Court of Appeal in Commissioner of Police, NSW Police Force v Fine (2014) 87 NSWLR 1, [2014] NSWCA 327. In DHJ v Secretary, Department of Family and Community Services [2018] NSWCATAD 46 Senior Member Lucy summarised those principles: (1) The power of joinder conferred by s 44(1) is to be read in conformity with the power of removal so that a party who is a "proper or necessary party" ought to be joined in the proceedings (Fine at 11 [38]); (2) A party whose interests are affected by a decision, including by reference to a statutory interest, may be a necessary party to proceedings (Fine at 11 [39]); (3) The question whether a party is a "proper" party to an application raises different considerations. A party with an interest in the proceedings, that is, a party whose interests were affected by the decision, would usually be a proper party. By contrast, a mere intermeddler would neither be a necessary nor proper party (Fine at 11 [40]); (4) In administrative review proceedings, an application for joinder should be considered in the context of the Tribunal's statutory review power and persons who are parties to the application before the decision-maker are proper parties before the Tribunal (Fine at 12 [45]-[46]); (5) Whether or not a decision-maker should be an active party, or whether a party ought to be joined, will depend upon the statutory role of the decision-maker, the nature and extent of the review being undertaken, the position or interest of the party to be joined and the circumstances of the case (Fine at 14 [57]).
In written submissions provided on 16 October 2018 the Public Guardian summarises the background to the appointment of the Public Guardian as guardian on 11 November 2015, and the subsequent continuation of that appointment on review in 2016 and 2017. DPS and DPT had initiated the application in 2015 to the Tribunal for review of the appointment by DPU of DNY as her enduring guardian, and had participated in the review hearings in 2016 and 2017. DPS and DPT have expressed their views to the Public Guardian, including that if DPU is moved they and other family members will be able to visit her more frequently. The Public Guardian submits that their interests are affected by the decision under review, and that the Tribunal should be satisfied based on their correspondence and evidence given in earlier proceedings that they are not "mere intermeddlers".
The Tribunal is satisfied that DPS and DPT, as persons who have an interest in the welfare of DPU and who have actively participated in the Public Guardian's decision-making processes, are persons whose interests are affected by the decision under review, and are proper parties to the review proceedings. Both should be joined as parties to the review proceedings.

Procedural directions

On 25 September 2018, by consent, the decision to move DPU was stayed pending determination of the review application. Directions were made for the parties to provide their evidence and submissions in preparation for the hearing of the application, the timing reflecting the anticipation that the hearing could be listed relatively quickly after 12 November 2018. Those directions included a direction that the joined parties, if joined, are to provide their evidence and submissions to the other parties and to the Tribunal by 2 November 2018. The hearing dates, which are dependent on the availability of court facilities at the most appropriate regional venue, are now fixed for 17 and 18 December 2018.
In light of that timing, and in the interests of enabling all parties to provide evidence and submissions relevant to the determination of the review, the Tribunal is satisfied it is appropriate to extend the dates for provision of evidence and submissions.

Orders

The Tribunal orders: 1. Pursuant to s50(2) of the Civil and Administrative Tribunal Act 2013 the Tribunal dispenses with a hearing on the joinder application. 2. DPS is joined as a party. 3. DPT is joined as a party. 4. The directions made on 25 September 2018 are varied as follows: 1. The date for DNY to provide to the Tribunal and all other parties any documents and submissions is extended to 9 November 2018; 2. The date for the joined parties DPS and DPT to provide to the Tribunal and all other parties any evidence and submissions is extended to 9 November 2018; 3. The date for the Public Guardian to provide to the Tribunal and all other parties any evidence in reply, submissions and a summary of legal arguments is extended to 16 November 2018.

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 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: 31 October 2018

DNY v Public Guardian

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Judgment (6 paragraphs)

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Legislation Cited (1)

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Cited By (3)