Moonee Valley CC v Top Cut Industries Pty Ltd 2010] VCAT 401
Re Boulton
ex parte Construction Forestry Engineering and Mining Union (1998) 73 ALJR 129
Source
Original judgment source is linked above.
Catchwords
Moonee Valley CC v Top Cut Industries Pty Ltd 2010] VCAT 401Re Boultonex parte Construction Forestry Engineering and Mining Union (1998) 73 ALJR 129
Judgment (7 paragraphs)
[1]
reasons for decision
The applicant, for the purposes of these proceedings known as DYH, applied to this tribunal on 23 July 2019 for merits review in respect of certain exchanges she has had with the Public Guardian of New South Wales. This is one of a number of applications that the applicant has made in respect of her elderly mother's affairs.
On 29 May 2019, this tribunal had made an order appointing the Public Guardian as guardian for the applicant's mother (who for reasons of clarity and convenience will be referred to as Polyxeni). The order, expressed to be for a period of 12 months, gave the guardian custody of the represented person (Polyxeni) to the extent necessary to carry out the guardian's designated functions, which were access, accommodation, health care, medical consents, services and legal services.
In the section of the review application form asking the applicant to identify the decision under review, the applicant gave the date 18 July 2019 and attached a letter addressed to her from the Public Guardian bearing that date and signed by Mr Theo Hastings, Assistant Public Guardian Operations. The letter was a reply to a complaint made by the applicant and lodged with the Public Guardian on 24 June 2019. The applicant had complained that the officer handling the matter, Mr Ben Sutton, had taken a one-sided attitude to the matter, had given false information on a number of occasions, had not returned her calls and had been rude to her and she had been denied access to the house where her mother, the person represented, was living.
The letter concluded that the officer responsible had acted in accordance with the Guardianship Act and standards. A guardian was appointed as a decision-maker only and is required to put the interests of the represented person first. The letter noted that the applicant had been told that the Public Guardian was not making an access decision at that time, but that did not mean that no access decisions will be made while the Public Guardian was appointed. He invited the applicant to continue to communicate with the officer responsible and submit an access proposal for consideration.
On 23 July 2019, the applicant applied for an order staying the Public Guardian's access ruling. That application was dismissed by the Tribunal on 30 July 2019. A number of directions hearings were also held. In orders made following a directions hearing on 3 September 2019, Pearson PM noted that the material supplied with the application for administrative review did not clearly identify whether a decision, and if so, what decision, had been made by the Public Guardian in the exercise of the functions conferred by the guardianship order. The Public Guardian's position was that no administratively reviewable decision had been made.
On 6 September 2019, the applicant obtained the issuance of a summons addressed to the respondent seeking inter alia its file on Polyxeni and all material and file notes relating to her administration from 29 May 2019. The respondent, for its part, sought directions from this Tribunal on what were its responsibilities in relation to responding to the summons, as the Public Guardian does not readily allow persons to view client files for confidentiality and privacy reasons, especially when there was a level of family conflict involved, as in this case.
The matter was listed for hearing on 4 October 2019, on the basis that issues relating to jurisdiction and the respondent's obligations under the summons required determination. Both parties appeared by telephone.
[2]
Applicable legislation
The Guardianship Act 1987 in s 80A provides as follows:
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.
The Guardianship Regulation 2016 provides as follows in cl 17:
17 Administrative review by Tribunal of guardianship decisions of Public Guardian
For the purposes of section 80A (1) (b) of the Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed.
At the hearing the parties did not adduce evidence but relied on submissions. As the applicant was not legally represented, those submissions were presented in a rather unstructured way, but the parties appeared to be in agreement that two issues needed to be resolved:
1. What obligations, if any, does the respondent have in relation to the summons issued on 6 December 2019?
2. Is there a reviewable decision before the tribunal?
[3]
Applicant's submissions
The applicant said at the hearing that she was concerned about her mother and that as the Public Guardian had spoken only to her siblings, she had been excluded from guardianship. No decisions had yet been made by the Public Guardian and she had been waiting 5 months for a decision. She was proceeding with the eviction of her siblings and an eviction letter had been sent. Mr Sutton had told her that she could not evict her siblings because they were her mother's carers.
A summons to produce documents was like a subpoena and the respondent had given no reasons for not producing the material. She wanted to see the file in order to ascertain how the matter had been processed. She had made her application to the tribunal because she believed her mother was being mistreated.
The applicant also reiterated some of the points she had made in her letter of 11 July 2019. She stated that once the Public Guardian had been appointed, she informed them that she urgently wished to see her mother, but received no communication or response from the Public Guardian, nor had there been any response to her many telephone calls or emails.
Public Guardian had excluded her and three other family members from any participation or involvement in the guardianship process. They had been treated unfairly through failure to contact or meet with the family members and by clear discrimination in failing to make any effort to speak with the entire family.
The respondent had obstructed the process by speaking numerous times with her siblings and Polyxeni, meeting with them and giving them the opportunity to communicate, but failed to make efforts to speak or meet with the applicant or William. The respondent had failed to conduct the case with fairness and due diligence to avoid conflict and unnecessary consequences. The respondent had failed to read and consider the full reasons for the decision made by the tribunal on 29 May 2019. The siblings are not Polyxeni's carers, nor have they provided any information to the tribunal that they are to be considered her carers.
[4]
The summons
The respondent's position is that it has supplied all relevant information to the applicant and does not wish to produce its own file to her for confidentiality and privacy reasons. The respondent also seeks guidance on its obligations in relation to the summons. In my view that response is best treated as an application to set aside the summons.
Summonses are issued under s 48 of the Civil and Administrative Tribunal Act 2013 (CAT Act). The Tribunal has an inherent power to quash such a summons: Knight v Department of Justice [2011] VCAT 1708, [3]. The grounds on which a summons to produce documents may be set aside include:
the documents specified in the summons to produce documents are not relevant to any issue that may legitimately arise the hearing;
the summons is oppressive because it imposes an undue burden on the summons recipient;
the documents specified in the summons are not sought for any purpose related to the proceedings but for some ulterior purpose;
the summons is otherwise an abuse of process.
The confidentiality of the documents sought is not, however, normally regarded as a ground for setting aside a summons. It may, however, be a ground for refusing access to the documents to the summoning party. The Tribunal has a general power to regulate the custody and inspection of documents produced pursuant to a summons, and the production of documents to parties is in no way automatic: Seachange Management Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2010] VCAT 269, [213]. The tribunal may refuse to allow, or restrict, the inspection of a document containing information that is relevant but confidential: (at [445]).
The proper course for the respondent on receiving a valid summons to produce documents would therefore be to produce the material to the Tribunal but make an application for inspection to be refused or restricted. The respondent's position, however, is that the summons it is not valid because there is no reviewable decision before the tribunal.
[5]
Jurisdiction
The combined effect of s 30 of the CAT Act and s 9 of the Administrative Decisions Review Act 1997 (ADR Act) is that this tribunal has administrative review jurisdiction when that power is granted by enabling legislation. The Guardianship Act 1987 does so in s 80A(1):
(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.
Clause 17 of the Guardianship Regulation 2016 provides that all decisions in the exercise of the Public Guardian's powers are prescribed for the purposes of s 80A(1). The word "decision" is defined in s 5 of the CAT Act sufficiently broadly to include the decisions on matters of access and accommodation that are in dispute in the present matter.
In its letter of 8 July 2019 which is annexed to the application, the respondent states, however, that it is "not making an access decision at this time, but this does not mean that no access decisions will be made while the Public Guardian is appointed. I do invite you to continue to communicate with the officer responsible and to submit an access proposal for consideration…." It is not disputed that the applicant currently has an accommodation proposal before the respondent. But no decisions have been made. In her letter of 5 September 2019 addressed to the Tribunal, the applicant stated that "We have on numerous occasions requested that the Public Guardian provide us with a decision and to date have not had the privilege".
At the hearing it was not disputed between the parties that no decisions have been made. Consequently, the respondent has not made any reviewable decision that would give this Tribunal jurisdiction to hear the application. In the absence of jurisdiction, the Tribunal cannot issue a valid summons. The summons must therefore be set aside.
The application itself must also be dismissed, for lack of jurisdiction. Although s 55 of the CAT Act does not expressly provide for dismissal on that ground, nor does the CAT Act contemplate jurisdictional hearings as such, the tribunal has a duty to satisfy itself that it has jurisdiction to hear and determine the proceeding: Karmez v Commissioner of Police, New South Wales Police Force [2019] NSWCATAD 149, [13] - [17]; Moonee Valley CC v Top Cut Industries Pty Ltd [2010] VCAT 401, [23]. A jurisdictional objection must be determined as a preliminary question: Re Boulton; ex parte Construction Forestry Mining and Engineering Union ((1998) 73 ALJR 129, 133).
[6]
Orders
1. Summons to produce documents set aside;
2. Application dismissed for lack of jurisdiction.
[7]
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
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Decision last updated: 14 October 2019