On 16 December 2021, ELQ and FGO applied to the Tribunal for administrative review in respect of a request made to the Public Guardian, appointed in 2013 to make decisions, including where ELQ and FGO's son and nephew, AA, resides. The applicants alleged that AA's best interest are not being considered by the Public Guardian and that proposal's to change his accommodation are being ignored.
On 23 February 2022, the respondent lodged an application for miscellaneous matters, requesting dismissal of the application pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NCAT Act).
The Public Guardian also seeks that the Tribunal has make an order under s 64(1)(a) of the NCAT Act to protect the identity of the applicants and the protected person. As the proceedings relate to orders made under the Guardianship Act 1987, s 65 of the NCAT Act prohibiting the identity of persons in proceedings before, or publication of matters decided by, the Guardianship Division. I, therefore, find that it is appropriate to make the order sought under s 64 of the NCAT Act. In these reasons the applicant's names have been anonymised, and the person under guardianship, is not identified.
[2]
Background
A guardianship order was made in the Guardianship Division of the Tribunal with respect to AA in 2013. That order was most recently reviewed by the Guardianship Division in January 2020. The Public Guardian was reappointed as the guardian for AA to make decisions in the areas of: access, accommodation, health care, medical and dental consents, services and restrictive practices.
In 2020, as part of the Public Guardian exercising its functions as the guardian for AA, enquiries were made with various stakeholders about the accommodation and services for AA. The Public Guardian on 28 August 2020 made a decision concerning the accommodation and services for AA. A statement of reasons for that decision was prepared on 21 September 2021.
In proceedings ELQ v Public Guardian [2021] NSWCATAD 184, this Tribunal affirmed the decision made by the Public Guardian on 28 August 2020. That decision was made on 2 July 2021. The decision included that a new service provider would be able to provide both supported living and day programs for AA which was consistent with what had been occurring at a placement for AA on the Central Coast.
Since that decision the applicants have been submitting proposals to the Public Guardian to have AA's accommodation reviewed. The applicant alleged that the Public Guardian is failing to exercise its functions, particularly pursuant to s4 of the Guardianship Act 1987, by refusing to have AA's accommodation placement reviewed.
The application filed by the applicants in the substantive matter seeks review of the Public Guardian's purported failure to consider a proposal put to her by the applicants on 2 November 2021. Relevantly, the proposal sent to the Public Guardian includes:
'… it is not 11 months, that AA has lived in accommodation that is not suitable and does not align to his health allied reports/plan.
AA has suffered great distress as his needs cannot be met by the accommodation or the provider.
…
[The applicants set out evidence in relation to unsuitability of the service provider, the accommodation and behaviour support practices.]
…
AA is always happy when in our care, he is still associating himself with the Central Coast by naming places and people when he has access with us, he is showing distress at the end of our access and states 'no home no home'. the [sic] Public Guardian is ignoring the fact that even Senior Member McAteer stated 'If there is appropriate accommodation on the Central Coast this would be preferred'. Mr Mac Ateer [sic] was unable to move AA back after the Public Guardian rushed AA's move spent all his money [sic] and left no money for the Senior Member to return AA home Senior Member mac ateer [sic] also stated ' the accommodation should be reviewed '. accommodation [sic] has been found and is in line with AA's BSP and must be investigated and appropriately examined for AA to return home.'
The proposal is entitled 'Proposal to have AA ACCOMMODATION REVIEWED for removal from the Sylvanvale, [not for publication] premises and returned to the Central Coast to reside at Autism Central Coast.'
The proposal was sent by email to the Public Guardian on 2 November 2021.
The applicants on 3 December 2021 sent a further email to the Public Guardian as follows:
'This proposal has not been answered by your office within the recommended 28 days, therefore if we do not receive a response by close Friday the 3rd we will submit an application for this matter to be heard any Ncat [sic]'
On 3 December 2021, the Public Guardian responded to the applicants' email by stating:
'Good afternoon [confidential], the Public Guardian acknowledges receipt of your below email.
The proposal submitted on 2/11/2021 is the same proposal that you put forward as part of the ADT proceedings. The outcome of these proceedings was the affirmation of the Public Guardian's decision to move AA to his current supported independent placement with Syvlan Vale. It is the Public Guardian's view that this matter has been addressed by the ADT's decision.'
The Public Guardian in written submissions notes that the reference to the ADT proceedings was in fact a reference to the decision of Senior Member McAteer in ELQ v Public Guardian [2021] NSWCATAD 184.
The Public Guardian has applied for dismissal of the proceedings under s 55(1)(b) of the NCAT Act, contending that the proceedings are frivolous, vexatious or otherwise misconceived or lacking in substance. The parties provided written submissions, and the application was heard on the papers. For the reasons that follow, the application for summary dismissal of the proceedings is granted.
[3]
Jurisdiction of the Tribunal
Section 50(2) of the NCAT Act provides, that proceedings can be determined on the papers by an order dispensing with an oral hearing. The parties agree to such an order, which I make.
Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The ADR Act provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.
Section 55 of the ADR Act provides that the Tribunal has jurisdiction to review "an administratively reviewable decision", defined in s 7 to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction".
Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation (other than the ADR Act or the NCAT Act) that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1).
Section 80A of the Guardianship Act 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.
Clause 17 of the Guardianship Regulation 2016 (the Regulation) provides:
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.
The effect of s 80A of the Guardianship Act and clause 17 of the Regulation is that the Tribunal has jurisdiction to review all decisions made by the Public Guardian "in connection with the exercise of" its functions under Guardianship Act.
The subject of any administrative review application to the Tribunal is a "decision", a term defined in s 6 of the ADR Act:
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,
(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,
(d) imposing a condition or restriction,
(e) making a declaration, demand or requirement,
(f) retaining, or refusing to deliver up, an article,
(g) doing or refusing to do any other act or thing.
(2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.
(3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.
(4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.
(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.
Section 7 of the ADR Act 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.
Section 55 of the ADR Act provides:
55 Making of applications
(1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person.
(2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules.
Note -
The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013.
(3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9).
(4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that:
(a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or
(b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned.
(5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to:
(a) the time when the applicant became aware of the making of the decision, and
(b) in a case to which subsection (4) (a) applies - the period prescribed by or under section 53 for the lodging of an application for an internal review, and
(c) such other matters as it considers relevant.
(6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests.
In an administrative review under the ADR Act the Tribunal is to decide what is "the correct and preferable decision"; and the Tribunal may affirm, or vary, the administratively reviewable decision, or set it aside and either make a new decision in substitution or remit the matter for reconsideration by the administrator: ADR Act, s 63.
[4]
Application for summary dismissal
The Public Guardian contends that there is no disclosed administrative reviewable decision because the email sent on 3 December 2021 is not an administrative reviewable decision. The Public Guardian submits that what is sought by the applicants is actually a review of the Public Guardian's decision made on 23 February 2021; that being, relevantly, the underlying, final or operative decision (see X v Commissioner, Community Services Commission [1999] NSWADT 26 at [16] to [18], citing Mason CJ (as he then was) in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 377). The Public Guardian submits that there was no internal review of her decision to decline that proposal, nor did the applicant seek to amend his application to the Tribunal in the previously determined administrative review proceedings (in which he was legally represented) as would have been open to him to do so (referring to the decision of ELQ v Public Guardian).
The applicants contend that their proposal made on 2 November 2021 is a new proposal and could be subject to administrative review.
The Tribunal's power to dismiss proceedings is conferred by s 55 of the NCAT Act. The application is brought pursuant to s 55(1)(b):
55 Dismissal of proceedings
(1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances -
…
(b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,
…
The first issue to consider is whether there is an administrative reviewable decision. The NSWTG's submission is that there is no reviewable decision.
There is no dispute that the applicants requested the Public Guardian to consider a proposal concerning AA's accommodation placement on 2 November 2021. It is evident that the Public Guardian responded to that proposal by email on 3 December 2021. Without needing to determine the Public Guardian's argument about whether that request is an administrative review having regard to the authorities set out in paragraph [26] above, if I assume Public Guardian is not correct in her submission, what is obvious is that the applicants have not sought an internal review of the decision made by the Public Guardian on 3 December 2021 in accordance with s55(3) of the ADR Act which is the condition that must be complied with unless one of the exceptions in s55(4) of the ADR Act are satisfied. There is no evidence before me that either of the exceptions in s55(4) of the ADR Act apply. In either circumstance, there is no administrative review decision.
Taking the applicant's case at its highest, I find that they have not complied with their obligation to seek internal review of the decision of the Public Guardian on 3 December 2021 prior to filing their application seeking administrative review of that decision on 16 December 2021.
The Tribunal concludes that the application for administrative review, lack utility and are misconceived. The proceedings should be dismissed under s 55(1)(b) of the NCAT Act.
Therefore, the request by the Public Guardian for the matter to be dismissed is granted.
[5]
ORDERS
1. The proceedings are dismissed pursuant to s55(1)(b) of the NCAT Act.
[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: 25 May 2022