This is an application for summary dismissal by the respondent. The respondent seeks an order to dismiss, under s 55 of the Civil and Administrative Tribunal Act 2013, the application dated 2 June 2020 by the applicants which sought review of the respondent's decision to decline a proposal for DYH and EIV to visit DYH'S mother on Mothers Day (10 May) 2020.
When directed to file submissions and evidence in relation to the application to dismiss, the parties were asked to include any submission on whether the application required a hearing or was suitable for determination without a hearing. Section 50 of the CAT Act provides that 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. It must first provide the parties with an opportunity to make submissions on this point and consider those submissions.
I considered the submissions filed by the parties, neither of whom objected to the matter being determined without a hearing and I was satisfied that the issues could be adequately determined on the papers.
[2]
Background
The Public Guardian was appointed by this Tribunal on 29 May 2019 to make decisions concerning the access, accommodation, health care, medical and dental consents, services and legal matters of the mother of DYH, who has dementia.
On 4 May 2020, DYH submitted a proposal to the Public Guardian to visit her mother at her home in Rockdale for brunch on Mother's Day ("the access proposal"). She proposed to bring her son EIV with her.
The Public Guardian advised DYH of its decision on 8 May 2020. While the decision is not expressly stated in the letter, it is evident that the access proposal was denied because, having spoken to DYH's mother with the aid of an interpreter, the Public Guardian was told by the mother that she did not wish for them to visit or contact her on Mother's day.
. On internal review the decision was confirmed. The applicants then sought review in this Tribunal.
[3]
The application for summary dismissal
The respondent submits that the proceedings be dismissed because:
1. The circumstances of the decision are no longer current. The opportunity for access on Mother's Day has passed.
2. DYH has subsequently made an access proposal on 18 June 2020 so the earlier request is no longer current or valid.
3. DYH's mother is undergoing a psychogeriatric review on 15 October 2020 and it is hoped that this will assist the Public Guardian to better understand her capacity to express her views about access.
The request dated 18 June 2020 was in evidence and it requests a formal decision be made for weekly access, as well as a decision concerning her accommodation in a nominated aged care facility.
I note that the applicants have recently sought to file applications in this Tribunal seeking review of other decisions concerning her accommodation and weekly access. On 8 September 2020 the respondent advised the Tribunal that no decision had been made on either request, pending the psychogeriatric review.
The applicants filed two sets of submissions. The submissions filed on 25 September 2020 appear to relate to their request to have access to their mother on two dates in October 2020. They do not refer to the earlier decisions.
The submissions filed on 2 October 2020 enclose a "Notice to Cease and Desist" addressed to the Public Guardian, this Tribunal and other public authorities. It claims that DYH's mother is being detained against her will and requires the ceasing of any injections, medications and vaccines.
Neither of these submissions refer to the application for summary dismissal. The applicants have provided the Tribunal with numerous copies of documents relating to other requests to the respondent and evidence of their relationship with DYH's mother.
An earlier submission filed on 25 August 2020 does refer to summary dismissal; therefore I have taken this submission into account although it was filed prior to the respondent's submissions. It states:
1. The Public Guardian has failed in the past to provide formal decisions and has ignored or dismissed requests for access.
2. Delays are causing emotional stress for the family.
3. Their mother is suffering from "trauma bonding" and is subject to an abuse of power and human rights.
4. To dismiss the application would mean that her immediate care is at risk, and that further and unnecessary applications will again be filed. They were permitted by Senior Member Ransome to amend or add to their original application.
5. They consider the other decisions should be added to this application rather than dismissing it.
On 21 July 2020 Senior Member Ransome noted that the applicant could consider whether they wished to amend the application once the psychogeriatric report was received. That has not yet occurred.
[4]
Consideration
Section 80 of the Guardianship Act 1987 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."
The review is conducted under the Administrative Decisions Review Act 1997, and s 63 of that Act specifies the powers that the Tribunal has in deciding the outcome:
"63 Determination of administrative review by Tribunal
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."
Section 36 of the CAT Act provides that the Act's guiding principle with regard to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The Tribunal must seek to give effect to that principle when it:
1. exercises any power given to it by the CAT Act or the procedural rules, or
2. interprets any provision of the CAT Act or the procedural rules.
Section 55 of the CAT Act provides:
"55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
(a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
(c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,
(d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
(2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1)(c) if the Tribunal considers that there is a reasonable explanation for that failure."
The respondent does not rely on any particular provision but the only possibly relevant provision is s55(1)(b).
If the proceedings were not dismissed, the applicants could apply to amend their application as indicated above but this would effectively constitute new proceedings as it would involve review of a different decision. If the applicants did not amend their application and the matter proceeded to hearing, even if the applicants were successful, this would not give them access because the date for access has now passed.
If the proceedings were dismissed, the applicants could no longer pursue review of that decision but could seek review of other decisions made concerning their numerous requests relating to access, accommodation and other matters which are more current.
In Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) noted:
"This approach of construing "misconceived" as including a misunderstanding of legal principle and "lacking in substance" as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions …"
Having reviewed the file it appears to me that the real issue in the proceedings is determining whether, and if so how and when, DYH and EIV should have access to DYH's mother. Obtaining a decision in these proceedings as presently constituted would not resolve this or grant the applicants access to DYH's mother as the relevant date which was the subject of the request has passed. No amendment can be sought as the relevant decisions have not yet been made. On that basis it can be said that the proceedings are misconceived and lacking in substance.
For that reason I consider it is appropriate that the proceedings be dismissed. When the respondent makes a decision on the 18 June request, the applicants would be entitled to seek review of that decision if they wish.
[5]
Orders
1. The proceedings are dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.
[6]
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: 19 October 2020