DXG v Public Guardian

The access decision

1. The Public Guardian decided that DXG could visit his grandfather in aged care between the hours of 9:00am and 5:00pm Monday to Sunday. In addition the Public Guardian decided that aged care staff are to provide DZO with all of his personal care as required without interference or intervention by DXG. The decision also stipulates that staff are not to be directed or restricted by DXG in their duty of providing care and support to DZO.
2. The order also stipulated that DXG was not to take DZO outside the aged care facility or engage the services of health or other professionals without the consent of the Public Guardian. Reasons for decision were provided on 1 September 2019. The Public Guardian agreed to conduct a review of this access decision after three months.
3. DXG sought external review by the Tribunal of the access order of 8 August 2019 (proceedings 20109/260778). DXG also sought a stay in those proceedings. In hearing the stay application on 3 September 2019, when refusing to grant the stay the Tribunal did adjust the hours of access (by way of extension) from 8:00am until 6:00pm six days, and 8:00am - 9:00pm on Fridays. The substantive review was adjourned until 5 November 2019. However on 4 November 2019 DXG withdrew his review application and the Tribunal dismissed the matter pursuant to s 55 (1) (a) of the NCAT Act.
4. In respect of the scheduled review of the Guardianship Order, on 16 October 2019 the Guardianship Division of the Tribunal refused to grant a further adjournment to DXG and proceeded with the review. Upon review the Tribunal appointed the Public Guardian as DZO's Guardian for a further 12 months with functions of access, accommodation health care and medical and dental consents. By this time DZO was 101 years of age.
5. On 6 December 2019 the Public Guardian conducted a review of the access decision. In that review the Public Guardian refined down the access hours so that they were more closely aligned to the initial access decision of 8 August 2019. The hours were pared back from those outlined at [8] above, to allow for access between 8:00am to 6:00pm seven days. Reasons for decision were subsequently provided on 20 December 2019.
6. On 18 December 2019 (two days prior to receiving the reasons) DXG sought external review by the Tribunal of the Public Guardian access decision of 6 December 2019. That review was brought pursuant to s 80A of the Guardianship Act 1987. The section provides: 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.
7. These substantive proceedings concern this review of the decision of 6 December 2019. DXG initially sought a stay when filing the application. The stay application was brought under s 60 (2) of the Administrative Decisions Review Act 1997 (the ADR Act).
8. The stay application was determined on an urgent basis and was heard and decided on 30 December 2019. The reasons for decision were published on 8 January 2020 (see DXG v Public Guardian [2020] NSWCATAD 8). The Tribunal refused to grant DXG a stay on the Public Guardian's decision.
9. A number of procedural orders were made following the hearing of the stay application on 30 December 2019. One of those orders concerned fixing the substantive review for hearing on 21 February 2020. A separate representative was appointed for DZO.

Intervening events

1. Whilst the matter was awaiting hearing on 21 February 2020, a significant event crucial to the proceedings occurred. DZO died on 24 January 2020. The Public Guardian became aware of this event the following day on 25 January 2020. It is understood that DXG became aware of this event immediately or shortly thereafter. It appears that the Crown Solicitor's Office was advised on the next business day 28 January 2020 or shortly thereafter.
2. On 10 February 2020 DXG emailed the Tribunal and advised that he did not wish to withdraw the matter (notwithstanding the death of his grandfather DZO). DXG advised that he sought an adjournment of the hearing date so he could obtain 'legal advice and representation in light of the changed circumstances'. It appears that this adjournment request may have been prompted by correspondence from the legal representatives for the Public Guardian where on 7 February 2020 the Crown Solicitor's Office wrote to DXG seeking advice as to whether DXG intended to withdraw his application, or whether he would consent to the matter being dismissed.
3. On 17 February 2020 the Tribunal considered the adjournment request in chambers and refused the request. In refusing the request the Tribunal noted that the respondent had filed an application to dismiss the matter. The Tribunal directed that both the adjournment application and the dismissal application could be determined at the substantive hearing on 21 February 2020.

The hearing

1. At the hearing on 21 February 2020 there was no appearance by or for DXG. Counsel appeared for the Public Guardian and the separate representative appointed for DZO was contacted as a matter of procedure. Following a grant of legal aid a legal practitioner appeared for DZO's separate representative, Ms Coorey, who was given leave to appear by telephone. The Tribunal tried contacting DXG by telephone a number of times with no success.
2. The Tribunal excused Ms Coorey from the proceedings. After excusing the separate representative the Tribunal was provided with correspondence from DXG by the Registry. This correspondence took the form of a written submission (received 21 February 2020 by email at 9:58am from DXG). A copy was provided to the respondent. In that submission DXG again sought an adjournment of the hearing. Understandably DXG referred to matter relating to his grief and his difficulty in dealing with formal matters whilst coming to terms with his grandfather's death.
3. DXG referred to his inability to comply with the timetable set by the Tribunal on 30 December 2019 in readiness for the hearing. DXG also referred to a physical injury (a broken foot), which occurred in September 2019 but had not healed as expected. This had resulted in a temporary physical impairment with walking with pain and DXG had received advice not to put pressure on this fracture by engaging in movement. All of this information was conveyed in writing by DXG. However there was no expert or no independent evidence of these matters.
4. DXG made two further submissions on this fresh adjournment application. He said that he had difficulty accessing his electronic copies of material necessary for the hearing, and that due to the matters associated with DZO's death he had been unable to properly arrange legal representation. DXG sought an adjournment until April 2020 and proposed some tentative hearing dates in mid to late April 2020.
5. DXG concluded his application with the following written submission: I have not previously needed or been granted an adjournment in these proceedings. It is reasonable to grant and [sic] adjournment in the circumstances and in the interests of justice.
6. The Respondent did not oppose the granting of the adjournment at hearing on the basis that the Tribunal should proceed to consider the dismissal application on the papers (after giving the parties an opportunity to make submissions). Depending on how that application was decided, further orders may be necessary for the future conduct of the matter.
7. The Tribunal in granting DXG's adjournment application made the following orders: 1. The applicant is to file and serve any submissions or material in response to the respondent's dismissal application (filed 14/2/2020) addressing why the proceedings are not futile in light of the death of the subject person - (DZO) on 24 January 2000. Such material to be filed and served on or before 15 March 2020. 2. The respondent has foreshadowed that the dismissal application should be determined by the Tribunal on the papers without a hearing. In this regard the applicant is to file and serve submissions addressing whether the dismissal application can be determined without a hearing in accordance with s 50 (2) of the NSW Civil and Administrative Tribunal Act 2013 (the NCAT Act). Such submissions are to be filed and served on or before 15 March 2020. 3. The respondent is to file and serve any material / submissions in reply (if any) on or before 22 March 2020. 4. Depending on what the Tribunal determines under s 50 (2) of the NCAT Act, the dismissal application will either be determined on the papers after 22 March 2020, or the matter will be listed for directions. 5. On the application of (DXG) today's dismissal is adjourned to a day / manner to be confirmed by the Tribunal in accordance with the above Orders.
8. On 19 March 2020 DXG contacted the Tribunal and sought amendments to the orders to allow him more time to comply. The applicant raised matters concerning his health and the impact of Covid 19 matters on the health system. The respondent did not oppose those extensions and amendments. The orders were subsequently amended on 23 March 2020 with the time in orders: 1,2 3 and 4 being extended by 14 days in each instance.

Determination on the papers

1. The last communication from DXG in this matter concerned his request for an extension of time on 19 March 2020. DXG did not file or serve any material in response to the orders of the Tribunal of 21 February 2020.
2. I note that the respondent has filed and served detailed submissions in support of the dismissal application. Those submissions were prepared by Counsel on 18 February 2020 and filed and served on 20 February 2020. Mr Dalla-Pozza made an oral submission that the matter was capable of being determined on the papers as no evidence needed to be considered, as the factual matters (the death of DZO) were not in dispute. Any contest over the utility or otherwise of the proceedings could be addressed by considering written submissions of the parties and deciding the matter without the need for a hearing.
3. DXG has not filed any material in respect of whether the matter should be determined by a hearing, or whether it can adequately be determined on the papers. Section 50 of the NCAT Act provides: 50 When hearings are required (1) A hearing is required for proceedings in the Tribunal except - (a) in proceedings for the granting of leave for an external or internal appeal, or (b) in connection with the use of any resolution processes in proceedings, or (c) if the Tribunal makes an order under this section dispensing with a hearing, or (d) in such other circumstances as may be prescribed by the procedural rules. (2) The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. (3) The Tribunal may not make an order dispensing with a hearing unless the Tribunal has first - (a) afforded the parties an opportunity to make submissions about the proposed order, and (b) taken any such submissions into account. (4) The Tribunal may determine proceedings in which a hearing is not required based on the written submissions or any other documents or material that have been lodged with or provided to the Tribunal in accordance with the requirements of this Act, enabling legislation and the procedural rules. (5) This section does not prevent the Tribunal from holding a hearing even if it is not required.
4. In the absence of any submission from DXG it appears that neither party sought that the respondent's dismissal application be determined by a hearing. On my assessment the issues for determination can be adequately determined in the absence of the parties. Both parties have been given the opportunity to put in written submissions on the dismissal application, and DXG was also afforded the additional opportunity to make submissions as to whether the matter could be determined without a hearing as per Order (2) 21 February 2020.
5. It is clear that DXG was aware of these orders and the import of them on the future conduct of the proceedings. DXG's email of 19 March 2020 identifies the orders specifically.
6. In accordance with s 50 (2) I make an order dispensing with a hearing of the matter.

Application for Dismissal

1. On 14 February 2020, the respondent filed a miscellaneous application to dismiss the proceedings. The application sought dismissal pursuant to s 55 (1) (b) and (d) of the NCAT Act. The grounds accompanying the application were: 1. The failure of the applicant to comply with timetabling orders made by the Tribunal. 2. ('DZO') passed away on 25 [sic] January 2020. There is no utility in reviewing the decision sought to be reviewed. Access is now hypothetical.
2. In respect of Ground (a), the s- 55 (1) (d) ground, the Tribunal needs to be satisfied that DXG has been given a reasonable opportunity to comply with the orders of the Tribunal. I note that DXG has sought at least two adjournments of the proceedings, and was granted one of those adjournments (on the day of the hearing). That adjournment was based on a consideration of all of the circumstances of the matter, including the specific written submissions made by the application as referred to above. I note that in those submissions received on the day of the scheduled hearing DXG re-agitated the substantive merits of his application for review notwithstanding that due to the death of DZO the decision (sought to be reviewed) was no longer in force.
3. DXG sought an extension of time to comply with the orders relating to this determination. That request was granted by the Tribunal. I am satisfied that DXG has been afforded sufficient opportunity (on the available evidence) to meet the orders of the Tribunal. No further information or requests for extension or explanation for delay have been received.
4. DXG has not provided any information to the Tribunal since his extension of time request on 19 March 2020 where he advised by email that he was ill and had been asked to self-quarantine by his doctor and his employer.
5. It is now over four weeks since the close of the timetabled orders. In those circumstances I believe that DXG has been given sufficient opportunity to put on some evidence of his reasons for non-compliance with the orders of the Tribunal to date. In addition I note the procedural history of the matter before the Tribunal including the concessions made to DXG. Having regard to all of these matters, in those circumstances I believe that on the material before me Ground (a) has been made out. But prior to exercising the power to dismiss under that provision I must consider the substantive matter in this case being Ground (b) - the s 55 (1) (b) ground.
6. The respondent put on written submissions detailing the basis of their grounds and also setting out matters relating to the operation of s 55 of the NCAT Act. The respondent referred to the case of State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [124] where Ormistion J held that: .."misconceived" referred to a misunderstanding of legal principle and 'lacking in substance' as encompassing an untenable proposition of fact or law.
7. The respondent acknowledged in submissions (consistent with the view of the High Court in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69 (1964) 112 CLR 125)) that the power must be exercised with great care and only in circumstances where the proceedings are so obviously untenable that it cannot possibly succeed.
8. The respondent submitted that the proceedings were futile and academic at best. The death of DZO had caused the proceedings to become academic.
9. The respondent also relied on the case of NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 at [13] as grounds for when a Tribunal will not proceed to determine issues previously raised following subsequent events which withdraw the review. At [12] - [14] the Appeal Panel observed the following on the issue of whether the Tribunal should express a view when the underlying issue was withdrawn and no longer in effect. 12. … The Department submitted that even if the Appeal Panel dismissed the appeal, we should express an opinion on the correctness of their ground of appeal because: 1. it is a discrete issue of statutory construction; 2. it affects how the Department will deal with future matters where an advance deposit is requested; 3. it affects how all government agencies will deal with matters where an advance deposit is requested; 4. the authorities on point are not clear; and 5. the Appeal Panel has already heard the arguments from both parties. 13 While we regard each of these points as valid, it would not be appropriate in the circumstances of this case to answer a question which is "merely moot, theoretical, abstract, hypothetical and advisory": Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed). In Miller v Commissioner of Police NSW [2004] NSWCA 356 the Court of Appeal said that it "would not deliver what would, in effect, be an advisory opinion on an issue which had become moot." The Court went on to say that, "Courts do not entertain appeals on questions which would 'produce no foreseeable consequences for the parties'". These principles were recently endorsed by the Supreme Court of Western Australia in Rams Mortgage Corporation Ltd v Skipworth [2008] WASCA 148. 14 In Harrington v Rich [2008] FCAFC 61 at [36], the Federal Court declined to express a view in relation to a moot appeal because the proceedings had been resolved and no substantive issue remained to be determined. In this case, there is another reason for declining to exercise any discretion we may have to determine a moot appeal. In our view, there is a real question as to whether the Department's appeal is against an "appealable decision". Section 113(1) of the ADT Act allows a party to appeal to the Appeal Panel against an appealable decision of the Tribunal. ..
10. The respondent also made submissions concerning the operation of the Guardianship Act and whether the reference to the functions of a Guardian in s 21 applied to a deceased person. In summary the respondent submitted that if the word person included a reference to deceased persons, upon the death of the person under Guardianship the Tribunal would need to formally terminate Guardianship. I observe that this 'termination of Guardianship' does not occur in practice.
11. The respondent also relied upon the decision of the former Administrative Decisions Tribunal (ADT) in AQN v Office of the Public Guardian [2013] NSW ADT 172. The respondent submitted that AQN was factually analogous with the current matter. However it appears that whilst the death of the subject person while the review was before the Tribunal is analogous, in AQN the applicant withdrew her review and it was as a consequence dismissed. The point of AQN being that the Tribunal recorded the applicant's dissatisfaction with the decision of the Public Guardian (in that matter) without entering into a merits review of the substance of the decision.
12. The respondent relied on the s 55 (1) (b) grounds arising from the death of DZO as their main argument and submitted that DXG's failure to prosecute his case and comply with the Tribunal orders (s-55 (1) (d) grounds) was a back up or secondary basis for the dismissal application.

Consideration

1. This administrative review application has been brought under s 80A of the Guardianship Act.
2. I have made a preliminary finding (at [36] above) that the ground for dismissal for want of prosecution under s 55 (1) (d) of the NCAT Act, has been made out. In order to properly consider the respondent's application for dismissal, I must also have regard to the second Ground (b), the s 55 (1) (b) Ground.
3. I note that the Guardianship Act does not specifically provide that the functions of a Guardian automatically cease on the death of the person under Guardianship, who I have referred to in these reasons as the subject person (being DZO). Unlike Financial Managers, which are also appointed under the Guardianship Act to manage the affairs of the subject person, the legislation is silent on when Guardianship ends. The Trustee and Guardian Act 2009 provides for the circumstances of the death of the person under management. Section 93 of that Act provides: 93 Termination on death of person The management of the estate of a managed person under this Act is terminated on the death of the person.
4. However whilst it does not appear explicit in the legislation I observe that s 21 of the Guardianship Act provides for certain matters relating to the practical function of the Guardian. The section does not set out the functions but sets out the relationship to the person under Guardianship. Section 21 provides: 21 Relationship of guardians to persons under guardianship (1) subject to any conditions specified in the order, the guardian of a person the subject of a plenary guardianship order: (a) has custody of the person to the exclusion of any other person, and (b) has all the functions of a guardian of that person that a guardian has at law or in equity. (2) Subject to any conditions specified in the order, the guardian of a person the subject of a limited guardianship order: (a) has custody of the person, to the exclusion of any other person, to such extent (if any) as the order provides, and (b) has such of the functions of a guardian of that person's person, to the exclusion of any other person, as the order provides. (2A) Subject to any conditions specified in the order, the guardian of a person the subject of a guardianship order (whether plenary or limited) has the power, to the exclusion of any other person, to make the decisions, take the actions and give the consents (in relation to the functions specified in the order) that could be made, taken or given by the person under guardianship if he or she had the requisite legal capacity. (3) Section 49 of the Minors (Property and Contracts) Act 1970 does not apply to a person the subject of a plenary guardianship order.
5. It is clear that the Guardian has custody of the person to the extent that for the exercise of their functions, they 'stand in the person's shoes'. A Guardian is a substitute decision maker for a person appointed by the Tribunal or the Supreme Court in circumstances where the person cannot make complex decisions due to a disability.
6. Once the person is deceased the Guardian no longer has custody of the person. As they do not have custody they are unable to exercise their Guardianship functions.
7. In this regard and having regard to the earlier submissions of the respondent, I believe that the reference to the term 'person' as it appears in the Guardianship Act, can only mean a reference to a living person. There are no functions that a Guardian can exercise in respect of a deceased person. For this reason I find that the reference can only apply to a living person. A deceased person is not a person under Guardianship. This is clear when one has regard to the specific functions and powers of a Guardian over the person under Guardianship.
8. Part 5 of the Guardianship Act sets out some of the functions concerning Guardianship. I observe that all these functions apply to living persons. The Guardianship Regulation 2016 sets out further functions of a Guardian.
9. I note that the Interpretation Act 1987 provides that when considering the meaning and purpose of a function under an Act, (by way of interpretation) regard should be had to the objects and purpose of that Act. Section 33 provides: Interpretation Act 1987 No 15 33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
10. In note that the Guardianship Act provides (in effect) that the subject person is the paramount consideration in a matter. The long title provides that it is an Act with respect to the guardianship of persons who have disabilities. Section 4 provides the general principles relating to Guardianship. The section provides: 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: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
11. The reference to the term 'such persons' and the construction of the section clearly contemplates that these principles apply to living persons. It is clear from the drafting that references to the terms: views, encouragement, welfare, interests, freedom, and self-reliance are only references to attributes of living persons. It would not be possible for a Guardian to exercise a function in any way in the absence of any of these attributes. A living person has interests (to be observed or promoted) irrespective of their level of disability.
12. Based on an assessment of the matters outlined above, I find that the Guardianship Act contemplates Guardianship over living persons and for that reason the functions of the Guardian (or Guardianship generally) ceases immediately on the death of the person under Guardianship.
13. On this basis the decision under review has in effect been rendered otiose because it no longer applies to DZO as he is deceased. In the absence of the decision having any power or effect, the correct and preferable decision on the available evidence is to grant the respondent's application.
14. In accordance with the cases outlined above it would be contrary to the general principles of the Guardianship Act to entertain the application by DGX on its merits.
15. In this regard the application is lacking in substance and has become (by force of subsequent events) misconceived.

Conclusion

1. Having regard to the evidence and material before me, I find that the proceedings are misconceived and are now lacking in substance. In such circumstances there is no utility in the Tribunal determining the substantive review before it.
2. I therefore make the following orders.

Orders 1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with. 2. Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 May 2020