On 12 January 2022 DYH lodged an application with the Tribunal seeking review of a decision of the Public Guardian she stated she received on 12 January 2022. I note that the applicant is known as DYH to protect the identity of her mother, the protected person, although no formal order has been made to this effect. For clarity, I will make an order under s 64(1) of the Civil and Administrative Tribunal Act 2013 (the CAT Act) to prohibit the broadcast or publication of the identity of the applicant or the protected person.
In the section of the review application form where DYH was asked to provide grounds for review of the decision she stated:
That the Public guardian exercise the decision dated 7 December 2020, which he has refused to exercise. That the decision of 12 January 2022, be reviewed and assessed in accordance with the Section 54 of the CAT Act, (3) procedural rules and that Ben Sutton has breached the Model Litigant Policy. The applicant again sent a proposal dated on 13 December 2021, within the 28 days to respond which will coincide to exercise the 7 December 2020 access. The email dated 12 January 2022. Section 50 - When hearings are required. (1) (d) in such other circumstances as may be prescribed by the procedural rules. SECTION 56 overriding purpose.
The reference to a proposal dated 13 December 2021 appears to be to a letter from DYH to the Public Guardian dated 15 December 2021 which, among other things, proposes that weekly visits be arranged between DYH and her mother. I note the DYH refers to 15 December 2021 in her later submissions.
The background to this application is that on 18 June 2020 the Guardianship Division of this Tribunal appointed the Public Guardian to make decisions about DYH's mother's access, accommodation, health care, consent to medical and dental treatment and services to be provided to her. I understand that a previous order had been made in 2019 in similar terms and that the 2020 order was renewed on 14 July 2021. On 7 December 2020 the Public Guardian made an access decision for DYH's mother. That decision was in response to a proposal from DYH in which she proposed weekly contact with and access to her mother. The Public Guardian's decision was that access to DYH was agreed to on a trial basis, under which DYH's mother would be supported by a formal carer to attend a community setting to meet DYH for morning tea or lunch for up to one hour. Such access was contingent upon DYH's mother agreeing to see DYH.
DYH sought review in this Division of the Tribunal of the 7 December 2020 access decision. On 24 May 2021 the Tribunal affirmed the 7 December 2020 decision (DYH v Public Guardian [2021] NSWCATAD 136). DYH then sought to internally appeal that decision to the Appeal Panel. On 10 September 2021 leave to appeal was refused and the appeal was dismissed by the Appeal Panel (DYH v Public Guardian (No 2) [2021] NSWTAP 400).
The "decision" of 12 January 2022 referred to by DYH in the review application is an email in the following terms:
As we previously communicated to you, the Public Guardian has explored if a phone call could be facilitated between you and your mother, XXX. When speaking directly with XXX recently, she advised the guardian she does not wish to have a telephone call at this time.
In relation to your request to have weekly visits with XXX, we still require additional detailed information in order to consider this request. We require more information about how the visits would take place, when and where you wish to have access with XXX, in the form of a written proposal. Copies of our proposal template and our access fact sheet were sent to you recently to assist you with your proposal. Please could you review these documents and provide us with all the requested information. Once your access proposal is received, we will seek the views of XXX again. To support this conversation, we would arrange a Greek interpreter to help facilitate the conversation with XXX.
The email also stated that DYH's mother was in isolation at the time as she was a close contact of someone who had contracted COVID-19.
[2]
Jurisdiction of the Tribunal
Under s 80A(1) of the Guardianship Act 1987 an application may be made to this Tribunal for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of a decision by the Public Guardian, which:
1. is made in connection with the exercise of the Public Guardian's functions under that Act as guardian; and
2. is a class of decision prescribed by the regulations for the purposes of this section.
Clause 17 of the Guardianship Regulation 2016 provides that for the purpose of s 80A(1)(b), all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under that Act as guardian are prescribed.
[3]
Application for dismissal
The Public Guardian has filed an application seeking dismissal of these proceedings under s 55(1)(b) of the CAT Act on the basis that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.
Both parties have made written submissions in relation to the dismissal application and have agreed that, under s 50 of the CAT Act, a hearing is dispensed with and the matter is to be dealt with on the papers.
[4]
Is there are reviewable decision?
In her application for review DYH refers to the access decision made by the Public Guardian on 7 December 2020 and the failure by the Public Guardian to exercise or implement that decision. She also refers to her proposal dated 15 December 2021 and a "decision" of 12 January 2022, the terms of which are set out above. The Public Guardian submits that in this application there is no reviewable decision over which the Tribunal has jurisdiction.
In relation to the 7 December 2020 decision, the Public Guardian states that that decision has previously been reviewed by the Tribunal and an internal appeal dismissed. In so far as DYH seeks review of the alleged failure of the Public Guardian to implement the access decision made on 7 December 2020, the Public Guardian submits that the Tribunal does not have jurisdiction to review the implementation of that decision. In relation to the email dated 12 January 2020, the Public Guardian submits that that email does not disclose an administratively reviewable decision but rather informs DYH that her mother does not wish to have a telephone call with her at this time.
DYH states that the Tribunal has administrative review jurisdiction to consider the inaction of the Public Guardian in facilitating access between her and her mother. She refers to section 6 of the ADR Act which sets out the meaning of "decision" as referred to in that Act. She refers to sub-sections 6(a), 6(b) and 6(d) which are as follows:
6 Meaning of "decision"
(1) General meaning A decision includes any of the following:
(a) making, suspending, revoking or refusing to make an order or determination,
(b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,
…
(d) imposing a condition or restriction,
DYH submits that the Public Guardian has refused to make a determination in relation to access (s 6(a)), has refused to give approval or consent (s 6(b)) and, in refusing to adhere to access decided on 7 December 2020, has imposed an unjust restriction (s 6(d)). DYH also submits that in failing to deal with her 15 December 2021 proposal, the Public Guardian has failed to make a decision. In relation to this point, DYH refers to s 6(5) of the ADR Act which provides:
(5) Failure to make a timely decision taken to be failure to make a decision
For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
DYH also argues that s 7 of the ADR is applicable as the Public Guardian has failed to exercise functions conferred by legislation. Section 7 provides:
7 Meaning of "administratively reviewable decision"
(1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction.
(2) For the avoidance of doubt (and without limiting subsection (1) or section 6):
(a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and
(b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.
As I understand it, the conduct complained of is the alleged failure to make a decision in relation to the 15 December 2021 proposal.
As set out above, the Public Guardian has been given an access function in relation to DYH's mother and, as a result, is able to make decisions about her access to others and the conditions of that access. The only decision that has been made in the exercise of that function by the Public Guardian is the decision of 7 December 2020. In so far as DYH seeks to revisit that decision (although that is not clear), it is clear that she has previously (unsuccessfully) sought review of that decision by the Tribunal and an internal appeal to the Appeal Panel was dismissed.
As a general rule, unless there are particular circumstances, a party will not be permitted to re-open a matter which has previously been determined. In this matter the 7 December 2020 decision was affirmed by the Tribunal and, importantly, the Appeal Panel found that there was no error on the part of the Tribunal in doing so. DYH has not advanced any cogent reasons why she should be permitted to seek further review of the 7 December 2020 decision, if that is indeed what she is seeking.
I agree with the Public Guardian that the email of 12 January 2022 is not a decision which is an administratively reviewable decision under the ADR Act. The email does no more than convey to DYH that her mother does not wish to speak with her over the telephone at the present time. The email also provides information about how to progress her proposal for weekly access.
The primary submissions of DYH are directed to the perceived failure of the Public Guardian to facilitate access between DYH and her mother in accordance with the decision of 7 December 2020 and to act on a proposal put forward by DYH on 15 December 2021. However, as was stated by the Appeal Panel in DYH v Public Guardian (No 2) at [63]:
… the appellants' concerns that the Public Guardian has not acted on the access decision do not identify a defect in the decision the Public Guardian made. The Tribunal does not have jurisdiction to review the Public Guardian's implementation (or lack of implementation) of a decision; its jurisdiction is limited to a review of the decision itself.
DYH also refers to the conduct of the Public Guardian in failing to respond in a timely way to her 15 December 2021 proposal. She appears to submit that, in failing to respond to her proposal, the Public Guardian has failed to make a timely decision within the meaning of s 6(5) of the ADR Act and is therefore deemed to have made a refusal decision. I note, however, that in the email of 12 January 2022, the Public Guardian sought further information from DYH in relation to her "request to have weekly visits" with her mother. There is no indication whether further information was provided. In any event, it is not clear that the Public Guardian is obliged to respond to every request from an interested person. I am therefore not satisfied that there is a decision of the Public Guardian that is amenable to administrative review.
DYH has also referred to s 7 of the ADR Act in this context. This Tribunal does not have a broad jurisdiction to review either the decisions or the conduct of government agencies. The Tribunal must be given specific review jurisdiction, usually under the enactment providing for the decision to be made by the agency. The same is true of review of conduct. As s 7 specifically states, the Tribunal may review the conduct of an agency "if enabling legislation identifies that conduct or refusal [to engage in conduct] as conduct or refusal over which the Tribunal has administrative review jurisdiction".
There is nothing in the Guardianship Act or Guardianship Regulation which gives this Tribunal jurisdiction to review the conduct or refusal to engage in conduct of the Public Guardian. Its jurisdiction is confined to a review of decisions in connection with the exercise of the Public Guardian's functions. The note to s 7 states that the jurisdiction conferred on the Tribunal by s 55 of the Privacy and Personal Information Protection Act 1998 is an example of administrative review jurisdiction of the Tribunal over conduct. Section 55 of that Act specifically refers to review by the Tribunal of "the conduct of the public sector agency concerned". That is not the case here.
In this application DYH is seeking to have decisions made by the Tribunal that are beyond the administrative review jurisdiction powers given to the Tribunal by the ADR Act and the Guardianship Act. As a result, her application is misconceived and the appropriate course is to dismiss the application.
[5]
Orders
1. Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure or publication of the name of the applicant and of the protected person and of other identifying information with respect to the applicant and the protected person is prohibited.
2. The review application is dismissed under 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
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: 21 March 2022