ELQ v Public Guardian - [2024] NSWCATAD 198 - NSWCATAD 2024 case summary — Zoe

NSWNSWCATAD

ELQ v Public Guardian

[2024] NSWCATAD 198

NCAT Administrative and Equal Opportunity|2024-04-19

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-04-19

Source

Original judgment source is linked above.

Judgment (33 paragraphs)

[1]

reasons for decision

This decision relates to the interlocutory application of the first respondent (the Public Guardian) in these proceedings in which he seeks an order, under s 55(1)(b) or (d) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), that the administrative review application of the applicants, ELQ and FGO, be dismissed.
The second respondent, DMO, supports the dismissal application of the Public Guardian.
The applicants and the Guardian ad Litem oppose the dismissal application of the Public Guardian.
Section 55(1) of the NCAT Act relevantly provides as follows: 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, …, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings.
The administrative review application of ELQ and FGO relates to the accommodation decision of the Public Guardian concerning the 28-year-old son of ELQ and DMO, who has a severe intellectual disability. I will refer to the son as 'ED' or the 'protected person' in this decision. The Guardianship Division of the Tribunal appointed the Public Guardian as the guardian of ED in September 2013. Following a review hearing of the guardianship order, on 17 March 2022, the Guardianship Division of the Tribunal re-appointed the Public Guardian as ED's guardian for two years. In re-appointing the Public Guardian as ED's guardian the Tribunal again gave the Public Guardian custody of ED to the extent necessary to carry out the following functions: 1. Access - to decide what access ED has to others and the conditions of access; 2. Accommodation - to decided where ED may reside; and 3. Services - to make decisions about services to be provided to ED.
A condition of the guardianship order made by the Tribunal was that in exercising his role the Public Guardian was to take all reasonable steps to bring ED to an understanding of the issues and to obtain and consider his views before making significant decisions.

[2]

The administrative review application of the applicant

On 8 November 2022, the applicants (ELQ and FGO), made an application for administrative review of the internal review decision of the Public Guardian, made on 1 November 2022.
The internal review decision of the Public Guardian affirmed the decision he had made, on 7 September 2022, that ED would continue to reside in his funded 24/7 individualised supported independent living accommodation at Granville that is operated by Sylvanvale, a non-government agency. In his decision, the Public Guardian noted that the 7 September 2022 decision had been made in response to the 10 June 2022 proposal of the applicants, that ED relinquish his funded individualised supported independent living accommodation to reside in their home with 24/7 support from Central Coast Autism Community Care, a non-government service provider. The Public Guardian also provided written reasons for his internal review decision.
In their administrative review application, the applicants identified the following as their grounds for making the application: opg failed to obtain their clients wishes for this decision, failed to give their client access to his communication tools also failed to include their clients (sic) speech therapist to assist their client in understanding the decision being made. opg failed to appoint an independent disability advocate and obtain their views on behalf of [ED]. Lack of due process and procedure.
In March 2023, the Public Guardian received a proposal from Sylvanvale that ED be transitioned to another less restrictive individualised supported independent living facility it operated at Guildford West (Renfrew accommodation). At the request of the Public Guardian, the Tribunal made an order remitting the 1 November 2020 decision for reconsideration by the Public Guardian: Administrative Decisions Review Act 1997 (NSW) (ADR Act) s 65(1). On 16 May 2023, following his reconsideration, the Public Guardian made a new decision and decided that ED would be transitioned to the Renfrew accommodation where he has continued to reside: ADR Act s 65(2)(c). It is this decision that is now the subject of the applicants' administrative review decision: ADR Act s 65(4)(a).
ED has continued to reside at the Renfrew accommodation since 26 June 2023.

[4]

Procedural history before the Tribunal

A detailed procedural history of the applicants' administrative review application before the Tribunal is set out in Attachment A to these reasons for decision.
In summary the applicants' application first came before the Tribunal at a directions hearing, on 6 December 2022, where orders were made for the progress of the application in the usual way, namely for the Public Guardian to file and serve his evidence and written submissions by 13 January 2023 and the applicants to file and serve their evidence (including expert evidence) and written submissions by 14 April 2023.
In compliance with these orders, on 13 January 2023, the Public Guardian filed and served a large bundle of documents which he considered to be relevant to the decision the subject of the applicant's administrative review application: Administrative Decisions Review Act 1997 (NSW) (ADR Act) s 58.
On 17 January 2023, at the second directions hearing, the Tribunal vacated the orders made on 6 December 2022 for the applicants to file and serve their evidence and written submissions.
On 21 March 2023, at the third directions hearing the Tribunal again made an order for the applicants to file and serve their evidence (including expert evidence) by 6 April 2023. Prior to this directions hearing, the applicants had made an interim order application on 15 March 2023. No orders were made regarding the interim order application at the 21 March 2023 directions hearing.
The applicants failed to file and serve any evidence by 6 April 2023. Instead, on 10 April 2023, the applicants lodged a further interim order application. That application was made in response to correspondence they had received from the Public Guardian, on 5 April 2023, attaching a copy of Sylvanvale's proposal that ED be relocated to Renfrew.
The applicant's interim order application was dismissed by the Tribunal on 9 May 2023 (fourth directions hearing). On the application of the Public Guardian, the Tribunal remitted the 1 November 2022 decision for reconsideration by the Public Guardian under s 65 of the ADR Act. As I have noted above, on 16 May 2023, the Public Guardian accepted the proposal of Sylvanvale and made a new decision by deciding that ED was to reside at the Renfrew accommodation.
On 30 May 2023 (fifth directions hearing), the Tribunal made orders for the Public Guardian to file and serve any supplementary s 58 documents by 16 June 2023. The applicants were also directed to file and serve their evidence and submissions by 14 July 2023. In accordance with these orders, on 19 June 2023 the Public Guardian filed and served his supplementary s 58 documents.
On 10 July 2023, almost six weeks after the 30 May 2023 directions hearing and four days before the applicants were to file and serve their evidence, the applicants made a further interim order application on the grounds that they were unable to provide their evidence and submissions as directed because the Public Guardian had denied them access to ED and copies of reports (for example the latest Behaviour Support Plan for ED) and communications the Public Guardian had with key stakeholders. The interim order application was subsequently not pressed by the applicants.
On 25 July 2023 (sixth directions hearing), the Tribunal extended the time within which the applicants were to file and serve their evidence and submissions to 29 September 2023.
On 19 October 2023, in the absence of the applicants having provided any evidence or submissions as directed, the Public Guardian approached the Tribunal to have the matter re-listed for directions. The Tribunal listed the matter for directions on 26 October 2023 (seventh directions hearing). At this directions hearing, the Tribunal vacated the orders that had been previously made for the filing and serving of evidence and submissions by parties (including the applicants) and made an order that by 16 November 2023, the applicants were to identify the names of any person(s) they proposed to call as an expert witness, together with a brief CV and a short description of the evidence that person would give.
On 23 November 2023 (eight directions hearing), the Tribunal made the following orders: 1. The applicants were granted leave to file expert evidence from an occupational therapist and a behaviour support practitioner pertaining to a review by these experts of the s 58 material, the documents provided by the Guardian ad Litem and any material produced under summons concerning ED; and 2. The applicants to file and serve their evidence (including expert evidence) by 1 March 2024.
On 30 January 2024, FGO sent an email to the Tribunal (copy to the Public Guardian, DMO and the Guardian ad Litem) in which he said: 'considering recent fundamental events with the subject persons care needs, we wish to withdraw from undertaking our expert evidence, as noted in the attached order.' Instead, he said, the applicants were seeking directions to: (a) submit supplementary material regarding the recent events, and (b) to propose a hearing date. In response to the email, the Tribunal advised that the matters raised in the applicants' email would be dealt with at the next listed directions hearing on 12 March 2024.
On 31 January 2024, at the request of the applicants, the Tribunal issued a summons to Ms Giorgia Mallia, an occupational therapist who compiled a report regarding the Renfrew accommodation. On 4 February 2024, Ms Mallia produced documents to the Tribunal in response to the summons.
On 5 March 2024, on behalf of the applicants, FQI sent an email to the Tribunal Registry (copy to Mr Hoyles and 'AASGAA') in which she noted that ordinary accommodation was hard to find, let alone accommodation that needs to be assessed by 'health allied' and then approved by the Public Guardian. She asserted that ED had missed out on three 'fantastic' opportunities. She went on to say that the applicants were in the process of starting health allied assessments needed for a recent sources 'excellent' accommodation matched to ED's needs. She explained that the accommodation came about on 2 March 2024, and they were available to view it on 3 and 4 March. She said that 'it is rather difficult to put a time frame on' the assessment process and requested that the 'direct' the applicants on how to 'proceed with the new address' which is different to other proposals they have made.
On the same day, the solicitor for the Public Guardian sent (via email) a letter to the solicitor the applicants had engaged. In that letter the Public Guardian's solicitor responded to the various matters raised by the applicants' solicitor in his letter of 8 February, which included these proceedings. In that letter the Public Guardian said: I note that proceedings were commenced in the Tribunal regarding [ED's] accommodation on 8 November 2022. Your clients have had since at least 25 July 2023 to prepare evidence and submissions in support of that proceeding. There has been a failure to file and serve any evidence and material in support of their case by 29 September 2023. They were given a further opportunity to adduce material in support of their case - including, in particular, specific expert evidence - by 1 March 2024. My Office has been informed that this will not be complied with and an amended timetable is now sought. The demonstrated conduct of the matter, in combination with your correspondence, demanding that my client commission various expert reports in respect of [ED's] accommodation, or otherwise make a fresh decision that [ED] reside in a different Supported Independent Living facility, give rise to the impression that your clients do not intend to prosecute the Tribunal proceedings, but are maintaining those proceedings for some other collateral purpose. In addition to the foreshadowed application for dismissal under s 55(1) of the Civil and Administrative Tribunal Act 2013 (CAT Act), I anticipate that in the absence of evidence as to the steps taken by your clients since 23 November 2023 to comply with the order, and an explanation as to why your clients were not in position to comply with the Tribunals orders to file material by 1 March 2024, I will be instructed to make an application for dismissal of those proceedings …
The Public Guardian's solicitor also sent an email to FGO (with a copy to FQI, and Mr Hoyles) on the same day. In that email the solicitor noted that, in his email of 30 January 2024, FGO advised that the applicants were intending to prepare reasons about why they were seeking to vacate the current timetable that was in place, yet the solicitor had received no further information , but would be grateful for a copy of those reasons by the following day. In the absence of being provided with such reasons, the solicitor expected that she would be instructed to seek that the proceedings be dismissed under s 55(1)(d) of the NCAT Act.
One and a half hours later, FGO replied to the email of the Public Guardian's solicitor. In his response, FGO said that the purpose of the upcoming directions date was to set an actual hearing date and that the applicants would request that they be provided with the opportunity to update their bundle of documents.
The dismissal application of the Public Guardian was made on 12 March 2024. As I have already noted, I heard that application on 19 April 2024.

[6]

S 55(1)(b) - proceedings misconceived or lacking in substance

The phrase 'lacking in substance' in s 55(1)(b) of the NCAT Act has been construed to carry several meanings. In the recent decision in Davis v NSW Minister for Health [2023] NSWCATAP 211 at [31], the Appeal Panel cited the following examples of meanings given to this phrase: (1) "an untenable proposition of law or fact": Rabel at 109 (Ormiston JA) in relation to s 44C of the Equal Opportunity Act 1984 (Vic); (2) "complaints that are obviously hopeless or obviously undeserving of relief": Rabel at 104 (Tadgell JA); (3) "a claim which presents no more than a remote possibility of merit and which does no more than hint at a just claim": GVR v Department of Health, Housing and Community Services (Human Rights and Equal Opportunity Commission, Wilson P, 23 August 1993, unrep) in relation to the Racial Discrimination Act 1975 (Cth), cited with approval by Von Doussa J in Nagasinghe v Worthington (1994) 53 FCR 175 at 178; [1994] FCA766; (4) "proceedings in respect of which it is readily apparent that they are hopeless and bound to fail": Chopra v Department of Education and Training (2019) 60 VR 505; [2019] VSCA 298 at [134] (Tate, Whelan and Kyrou JJA) in relation to the Civil and Administrative Tribunal Act 1998 (Vic), s 75(1)(a); (5) a claim that is "not reasonably arguable": Zouk at [45] (Ipp JA, Beazley and Bryson JJA agreeing) in relation to the Strata Schemes Management Act 1996 (NSW), s 185(4).
At [53] the Appeal Panel agreed with the following view expressed by the Appeal Panel in BDK v Department of Education and Communities [2015] NSWCATAP 129 (BDK) at [66] as to the meaning of s 55(1)(b): 66 In our view a reasonably broad connotation should be given to the meaning of the four categories of conduct identified by s 55(1)(b). The intent of the provision, as we see it, is to seek to give the Tribunal a broad power to deal with abuses of its processes, and for them to be interpreted and applied in a power which captures any kind of abuse of process, that can reasonably be seen to fall within their compass. While 'misconceived' and 'lacking in substance' may be seen as relatively specific terms, we think a flexible, purposive interpretation can be adopted in determining whether proceedings are 'frivolous' or 'vexatious', conscious always of the gravity for an applicant or plaintiff of summary dismissal of proceedings.

[7]

S 55(1)(d) - want of prosecution

The principles applicable for summary dismissal under s 55(1)(d) were considered by the Appeal Panel in Murabito v Commissioner for Fair Trading [2020] NSWCATAP 63 (Murabito), Bousgas v HD Constructions (Aus) Pty Ltd [2017] NSWCATAP 122 and K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139.
In Murabito, at [32], the Appeal Panel noted that the earlier decisions of the Appeal Panel had referred to earlier authorities that established the principle that a court should be reluctant to dismiss proceedings unless there has been either intentional or contumelious default on the part of the plaintiff or inordinate or inexcusable delay in giving rise to a substantial risk that a fair trial would not be possible, and that this approach had been diminished with the enactment of the provisions in ss 56 to 60 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act): see New South Wales v Plaintiff A [2012] NSWCA 248 per Basten JA at [17] and [18] which was cited with approval by the Appeal Panel.
The Appeal Panel noted that the overriding purpose of s 56 of the Civil Procedure Act is to facilitate the just, quick and cheap resolutions of the real issues in the proceedings.
At [33] the Appeal Panel said: 33 As held by Basten JA, determination of an application to dismiss proceedings for want of prosecution requires consideration of a variety of factors, including the length of any delay and associated costs, any explanation for the delay, and prejudice to other parties in the proceedings. While decided before the introduction of s 56, the identification by Simpson J in Hoser v Hartcher [1999] NSWSC 527 of relevant factors to be taken into consideration remains a useful summary: …
In Hoser v Hartcher [1999] NSWSC 527 at [19] the relevant factors listed by Simpson J were as follows (citations omitted): (1.) the ultimate question is whether, on balancing the prejudice to the respective parties by making or not making an order, justice demands that the action be dismissed …; (2.) the discretion should be exercised only in a clear case where it is manifestly warranted; … as is generally the case with discretionary decisions, each case depends upon its own facts. Rigid formulae should not be applied to the exercise of the discretion: …; (3.) any explanation offered by the plaintiff for the delay in proceeding must be considered: …; (4.) personal blamelessness on the part of a plaintiff (as distinct from any tardiness or other fault on the part of his/her/its legal representative) is relevant …; (5.) a defendant who takes no steps to secure progress in the proceedings, or to activate an apparently inactive plaintiff or who stands by in the hope that the passage of time will ensure the quiet death of the proceedings or that the longer delay will strengthen the case for striking out, runs the risk that that very behaviour will operate to his/her/its disadvantage. A defendant has two choices: to attempt to prod the plaintiff into action, or to stand by, doing nothing, trusting that time will bring about the slow death of the action. Either choice represents something of a gamble, dependent upon future events that the defendant is unable with any degree of confidence to predict. If the defendant opts for the former course, of prodding the plaintiff into action, it may succeed in doing so, precluding an application to strike out. On the other hand, if the plaintiff remains inert, the defendant's case for striking out strengthens with passing time. If the defendant chooses the latter option and takes no action, the plaintiff may take no further steps, or may take no further steps until such irremediable prejudice is caused to the defendant that the application to strike out will succeed; if, however, some other event galvanises the plaintiff into action the defendant, having done nothing to progress the matter, can hardly be heard to complain of the plaintiff's earlier inactivity …; (6.) delay between the date the cause of action arose and the commencement of the proceedings may be a relevant factor …; (7) the onus lies on the defendant to establish any prejudice upon which reliance is placed. The disappearance or death of witnesses, the fading of their recollections, or the destruction of records, are some obvious examples of the kind of prejudice that might arise; (8) prejudice to a defendant caused by delay has to be balanced against prejudice to a plaintiff deprived of an otherwise valid claim; delay in the commencement of proceedings by a plaintiff is sometimes taken as evidence contra-indicating prejudice to the plaintiff in the sense that he/she/it has evinced no interest in his/her/its own case …; (9) what the defendant has (or has not) done by way of preparation for trial may be a factor. This is a distinct question from that concerning any steps taken (or not taken) by the defendant in prompting the plaintiff to action. A defendant who has not interviewed witnesses, taken statements or collected documents, after being served with the claim, has a less meritorious complaint about the effect of prejudice caused or presumed by reason of delay: …; (10) the plaintiff's prospects of success is a relevant factor. If it appears that the prospects are minimal, the discretion is more likely to be exercised in favour of the defendant. Conversely, where the plaintiff's case is strong (absent the kind of prejudice to the defendant to which I have referred) it is less likely that justice will be done by striking the action out …; (11) the exercise of the discretion to strike out should not incorporate any element of punishing a tardy plaintiff, or of excluding one who may appear to have some unworthy characteristics: …. The ultimate aim of a court is the attainment of justice …
In Chalke v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [11], Deputy President Hennessy held: 11 The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55 (1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
Section 36 of the NCAT Act relevantly provides as follows: 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings to the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. (3) Each of the following persons is under a duty to cooperate with the Tribunal to give effect to the guiding principle and, for that purpose, to participate in the processes of the Tribunal and to comply with directions and orders of the Tribunal: (a) a party to proceedings in this Tribunal, (b) an Australian legal practitioner or other person who is representing a party in the proceedings in the Tribunal.

[8]

Submissions of the Public Guardian

In his written submissions the Public Guardian said that he understood the applicants' case to be that, rather than remaining at the Renfrew accommodation, ED should be accommodated in the paternal family home on the Central Coast, either indefinitely, or until such time as he can be accommodated in an individualised supported independent living accommodation facility on the Central Coast.
Based on this understanding, the Public Guardian contends that, in the event the applicants' administrative review application were to proceed, in deciding the correct and preferable decision, the Tribunal would need to consider and determine the following issues: (a) first, in light of [ED's] various diagnoses, the associated limits upon his functional capacity, and the needs associated with those limitations; (b) secondly, the extent to which those needs, combined with his general needs, would be met by each accommodation option; and (c) thirdly, whether there is an any other reason why a particular accommodation option may otherwise be preferred or unsuitable.
The Public Guardian submits it is clear from the procedural history of the applicant's administrative review application that, an order dismissing the applicants' application under s 55(1)(b) and/or 55(1)(c) of the NCAT Act was warranted because: 1. from at least 25 July 2023, the applicants have occasioned a significant delay in the proceedings; and 2. it is readily apparent from the manner in which the applicants have prosecuted their case, it is hopeless and bound to fail.
In support of this contention, the Public Guardian pointed to the following: 1. on three occasions the applicants failed to provide any evidence or submissions these being as follows: 1. on 29 September 2023, as agreed and directed on 30 May 2023; 2. on 27 October 2023, as per the extension of time orders made on 25 July 2023; and 3. on 1 March 2023, as agreed and directed on 23 November 2024; 1. the Public Guardian, has sought to engage with the applicants and has not sat idly by and allowed the applicants' non-compliance to fester and the proceedings to atrophy. For example, it was he and not the applicants who had the proceedings listed for further directions on 26 October 2023. Furthermore, when the applicants sought a variation of the 25 July 2023 and 1 November 2023 time table for the filing and serving of evidence, he sought details of the proposed variation in an endeavour to reach a consent position. However, the approach was ignored; 2. contrary to the contention of the applicants, the lack of progress in the proceedings is not due to the Public Guardian withholding documents. He has provided the applicants with the s 58 documents and responded to the request of Mr Hoyles for additional documents. To the extent the applicants assert that documents have been withheld by the Public Guardian - the Public Guardian has advised the applicants that he does not hold these documents, but the applicants could approach the Tribunal for the issue of a summons addressed to the relevant person or organisation; 3. the applicants' have done very little, if anything at all, regarding the appointment of an expert in support of their case that the Renfrew accommodation is not suitable for ED's needs. Nor have they explained why the evidence they now propose to provide as to their accommodation proposal for ED could not have been provided by 1 March 2024; 4. regarding the applicants' proposal that ED reside on the Central Coast, the applicants have provided no evidence of the supports that would be available for ED at their home, or the supports that Central Coast Autism Community Care (ACC) or any other organisation could or intended to provide for ED. This includes no evidence of the home of ELQ and FQI having been independently assessed as being suitable to meet ED's needs. Nor have the applicants provided any evidence of the approaches they say they have made to Central Coast accommodation providers or what supports were available by a Central Coast accommodation provider that would cater ED's needs. The Public Guardian asserts that this alone demonstrates that the applicants' case succeeding is remote; and 5. balanced against this lack of evidence, is the prejudice to the Public Guardian in that he does not know the case he is expected to answer. For example, while the applicants' have expressed a general deep dissatisfaction with Sylvanvale, they have not identified what aspect of the decision they seek to challenge. Hence, the Public Guardian is unaware of what additional material he might wish to adduce, or which witnesses he may wish to call. In this regard, the Public Guardian noted that any prospective witness will not be a person within his control.

[9]

Submissions of the Applicants

In their written submissions, the applicants oppose the dismissal application of the Public Guardian and seek orders that they be granted 'access and distribution of the latest available information, namely the latest BSP report'.
On page 1 of their written submissions, the applicants provide a summary of the grounds on which they oppose the dismissal orders sought by the Public Guardian. These grounds are as follows: 1. the dismissal application is made on the grounds of a peripheral issue, namely the applicants having not responded to orders; 2. the dismissal application fails to consider the continuous vulnerability of ED under the care of the Public Guardian; 3. if the proceedings are dismissed, this would be on the basis of the Public Guardian having: 1. failed to provide the applicants with a copy of the report of the Behavioural Specialist; 2. chosen to enable third parties to insert conditions of access to critical reports needed for the applicants to determine the suitability of the current accommodation; 1. the application is an abuse of power as the solicitor for the Public Guardian has access to and use of the latest Behaviour Support Plan (BSP) Report for ED, yet the Public Guardian asserts he cannot ask or provide copies to the applicants. This, the applicants' assert, to be an indication that the Public Guardian has outsourced its functions - either way the Public Guardian cannot deny the applicants access to the information sought; and 2. the solicitor for the Public Guardian has continually dismissed their nominated person(s)/entities.
The body of the applicants written submissions is divided into the following sections: 1. 'Background Overview - History of Relocation to Western Sydney from the Central Coast' - under this heading the applicants make several assertions about the relocation, in 2020, of ED from the Central Coast to Granville. They assert that this relocation had separated ED from his community and as a result his behaviour and heath had deteriorated. This deterioration they say has continued after his relocation to Renfrew. Of particular concern to the applicants is a seizure suffered by ED in late 2023 at a time there was no 1:1 supervision of ED at the Renfrew accommodation and another occasion where ED had been able to exit from his accommodation. They also allege that the Public Guardian and the Renfrew accommodation provider have denied them access to the Renfrew accommodation and failed to provide ED with other specified services; 2. 'Calls to access the Latest BSP report' - in regard to their failure to provide any evidence or expert report, the applicants assert that the solicitor for the Public Guardian had frustrated their calls for the latest BSP report by 'applying evidence laws which would not otherwise exist in a tribunal setting' and, in the absence of such a report any expert reports they were able to obtain would be worthless. The applicants otherwise repeated their general grievances about the Public Guardian and asserted that he fails to promote the guardianship principles to the fullest; 3. 'Judicial Considerations & Case Law: In conjunction with documents wich (sic) urgency on the day of last Directions - 12 March 2024' - the applicants cited a South Australian case which is of no relevance to the dismissal application of the Public Guardian or the decision of the Public Guardian that is the subject of this application for administrative review. Instead, it is a decision concerning an application, made under s 33(1a)(i) of the Guardianship and Administration Act 1993 (SA), to the South Australian Civil and Administrative Tribunal (SACAT) seeking to vary or revoke a guardianship order that had previously been made by SACAT. The applicants also cite decisions of the Appeal Panel which are also of no relevance to the dismissal application or the decision for which the applicants seek review because, they and the South Australian decision do not relate to a decision made by a guardian in the exercise of his functions as the appointed guardian. Instead, they are decisions that relate to the decision of the relevant Tribunal to appoint a guardian under the relevant Act (for example, Part 3 of the Guardianship Act). Hence, I have not considered these authorities any further; and 4. 'Conclusion' - the applicants say they strongly oppose the dismissal of the proceedings as this would be detrimental to the immediate and ongoing health and safety of ED and a hearing date could tentatively be set. The applicants conclude by asserting that the 'current accommodation and provider are not fit for purpose'.
The indexed bundle of documents attached to the applicant' submissions are copies of correspondence between the applicants and Mr Hoyles and the solicitor for the Public Guardian. Some of this correspondence is included in the bundle of documents relied on by the Public Guardian in support of his dismissal application.

[11]

Consideration

It is not disputed that: 1. the Tribunal has jurisdiction to hear and determine the applicants' application seeking review of the 16 May 2023 decision of the Public Guardian: see NCAT Act s 30, Administrative Decisions Review Act 1997 (NSW) (ADR Act) ss 7 and 9, Community Services (Complaints, Reviews and Monitoring) Act 1998 (NSW) (Community Services Act) s 28(1)(b), and Guardianship Act 1987 (NSW) (Guardianship Act) s 80A; 2. the role of the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including any relevant factual material and any applicable law: ADR Act s 63(1), and 3. in determining the applicants' application the Tribunal can decide (ADR Act s 63(3)) : (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.
That is, on administrative review, the Tribunal sits in the shoes of decision maker (in this case the Public Guardian) and decides the matter a fresh as at the date of hearing: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25].
In deciding the matter a fresh, the Tribunal, as was the Public Guardian before it, has a duty to observe the principles in s 4 of the Guardianship Act which are in the following terms: 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.
The application of these principles has been considered by the Tribunal in several cases: e.g. DYH v Public Guardian [2021] NSWCATAD 136 and WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22.
In DHY, at [77(2)] the Tribunal noted: (2) The word "paramount" sets paragraph (a) apart from the other principles in section 4. It is the factor which is required to be given the greatest importance and significance in every case. Put another way, (perhaps in a more contemporary but practical way), the 'welfare and interests' principle "trumps" all the other section 4 principles.
In WL at [75] and [76], the Appeal Panel of the former Administrative Decisions Tribunal made the following observations about the application of s 4 of the Guardianship Act: 75 … in relation to the Guardianship Act, when making a decision about whether to revoke a financial management order, or to exercise any other function under the Guardianship Act, a decision maker is bound to observe any relevant principle in s 4. … 76 However, the principles are not expressed in absolute terms. Phrases such as "as little as possible" and "as far as possible" make it clear that observing a principle does not mean that, where a discretion exists, a decision maker must make a particular decision. For example, observing the principle in s 4(b) does not necessarily mean that every person must be given complete freedom in relation to their personal, domestic and financial affairs.

[12]

Is the applicants' application lacking in substance?

The applicants assert that the grounds on which they seek review of the 16 May 2023 accommodation decision of the Public Guardian remain those identified in their 8 November 2022 application for administrative review.
These grounds (see at [13] above) related to the Public Guardian's decision that ED would continue to reside at the Granville accommodation. In summary these grounds were the failure of the Public Guardian to: 1. take steps to obtain the views of ED about the decision that was made; 2. appoint an independent disability advocate for ED; and 3. provide 'due process and procedure'.
After lodging this application, ELQ and his wife (FQI) lodged a further administrative review application seeking review of the June 2023 decision of the Public Guardian to refuse to appoint an independent disability advocate for ED: see Tribunal file number 2023/00222988. On 21 February 2024, the Tribunal affirmed the decision of the Public Guardian.
Early in these proceedings, Mr Hoyles was appointed as the guardian ad litem for ED. His role is to protect and promote the interests of ED in so far as they relate to these proceedings. He is not a party to these proceedings.
The applicants have not explained what they mean by 'due process and procedure'. However, it is evident from the material provided by the applicants, and the oral submissions that were made, that the focus of their case is that ED should be relocated back to the Central Coast where he had lived prior to August 2020. In this regard the applicants assert that suitable accommodation and supports are available for ED on the Central Coast. Yet, since commencing these proceedings the applicants have not provided any evidence in support of this assertion, or why, a relocation of ED to the Central Coast would be in the best interest of ED having regard to the principles in s 4 of the Guardianship Act.
I do not question the willingness of ELQ and FQI to have ED accommodated at their home on the Central Coast, or that they have made enquiries about the availability of suitable accommodation and supports for ED on the Central Coast. However, the undisputed evidence is that their expressed willingness and enquires have not resulted in their substantive case having progressed. Other than many assertions of having sourced available accommodation on the Central Coast, no further details have been provided.
I do not accept the applicants' contention, made in this dismissal application, that the Public Guardian should have more than one proposal before him/her when exercising the accommodation function with respect to the person for whom he/she has been appointed as guardian. Nor do I accept the contention that it is the responsibility of the Public Guardian to make enquiries about alternative proposals. No such requirements are prescribed in the Guardianship` Act. This does not mean that the Public Guardian is prevented from considering more than one proposal when exercising the accommodation function in respect to the person for whom he/she has been appointed as guardian.
In any event, in this case, it is the applicants who assert that there is alternate available accommodation on the Central Coast to meet ED's needs. Hence, it is for them to provide some evidence that supports this assertion, which they have persistently failed to do.
Regarding expert evidence, on 30 January 2024, the applicants' position is that they do not wish to rely on any expert evidence. Their reason being 'recent fundamental events' concerning ED. These events I assume to be ED's recent seizure event and his escape from the accommodation facility. The solicitor for the Public Guardian responded to the applicants' concerns regarding these events in her letter of 5 March 2024. While I agree events such as these are of concern, they have been addressed in the letter of the Public Guardian's. In my view, having regard to the solicitor's response, it is difficult to see how these events alone provide any support for the applicants' case in this application. I make a similar finding regarding the applicants concern about ED no longer participating in his day program. Again, this has been addressed by the Public Guardian who has advised that the day program was suspended temporarily until the vehicle used to transport ED to the program is refitted so that ED can be safely transported.
The applicants' claim that suitable accommodation and supports are available for ED on the Central Coast is not new to this application. It was a ground relied on by ELQ in his 2020 application seeking review of the August 2020 decision of the Public Guardian that ED be relocated from the Central Coast to Granville: see ELQ v Public Guardian [2021] NSWCATAD 184 (ELQ's 2020 application). On 2 July 2021, the Tribunal affirmed the decision of the Public Guardian.
In support of ELQ's 2020 application, FGO and FQI gave evidence of enquiries they had made about alternate supported independent living accommodation being available for ED on the Central Coast if he were to be relocated there: see ELQ's 2020 application at [48], [51] and [52]. The enquiries included inquiries with the Central Coast Autism Community Care. In a statement of FQI, dated 16 March 2021, made after the first hearing date of the 2020 application, FQI said that: 'Central Coast Autism finalising a transition plan for [ED] which would be ready for finalisation and a move the following day': see ELQ's 2020 application at [87].
The parties agreed that the 16 March 2021 statement did not relate to the decision the subject of the 2020 application. Instead, it related to a second decision of the Public Guardian, made on 23 February 2021, that a further (or alternative) accommodation decision for ED could not be made: see ELQ's 2020 application at [82]. The Tribunal noted that ELQ reserved any rights he had arising from this decision.
While the 23 February 2021 decision of the Public Guardian was not the decision the subject of review in the 2020 application, the Tribunal summarised some of the points made by the Public Guardian as to why he did not make a further decision to relocate ED back to the Central Coast: see ELQ's 2020 application at [91] to [94]. The points made included, issues arising from NDIS funding for a new and equivalent assessment of the property and staffing capability of Central Coast Autism Community Care and the failure of Central Coast Autism Community Care to provide, as at the date of the adjourned hearing, 'more detailed advice on their demonstrated experience with and capacity to manage high support participants such as [ED]'.
At [148] of ELQ's 2020 application, the Tribunal found that it was not satisfied that ELQ had provided sufficient evidence to cast doubt on the 2020 decision of the Public Guardian in that he had not established that it was made contrary to the s 4 principles. At [149], the Tribunal observed that: … [whilst] ELQ's desire to have [ED] relocated back closer to him, I note that there has been very little evidence (other than the understandable importance of their relationship) put forth by ELQ to establish how this can override the overwhelming weight of evidence as to the need for a change which resulted in the August 2020 decision. …
I accept that circumstances may have changed since the Tribunal made its decision regarding ELQ's 2020 application. However, for the reasons set out above, I am not persuaded that ELQ and FGO have advanced their case any further than ELQ had advanced his case in his 2020 application.
That is, the applicant's case remains one of mere assertion with no supporting evidence. Yet they have had ample opportunity to do so. Instead, the proceedings have largely been used by the applicants to air their general dissatisfaction with the Public Guardian and ED's accommodation provider Sylvanvale. In addition to the examples set out above, are the following: 1. the applicants' persistent requests for a copy of the most recent behavioural support plan for ED and the staff shift notes of the Renfrew accommodation after the Public Guardian advised that he did not hold these, but they were documents for which the applicants could seek production under summons issued by the Tribunal at their request. Again, no summons was sought and the applicants had ample opportunity to do so; 2. the applicants asserting that the Public Guardian was responsible for denying them access to the Renfrew accommodation when they knew it was the provider Sylvanvale who refused them access to the facilities; 3. the applicants asserting, without any evidence, that the Public Guardian was responsible for their nominated experts withdrawing. As I have noted, on 23 November 2023, the Tribunal provided a guide to the applicants as to the material their expert should review in preparing their report. This was material already filed by the Public Guardian and Mr Hoyles in the proceedings and did not involve the expert conducting any assessments of their own. However, the applicants appear to have taken this guide as providing the opportunity to do so. I accept that the applicants may have misunderstood the Tribunal's direction/guide. However, in my view, their apparent dissatisfaction with the Public Guardian as the appointed guardian of ED, is likely, to have contributed to this misunderstanding.
For the reasons set out above, I find that, even if more time were granted for the applicants to provide their evidence and submissions, little if any further material relevant to the accommodation decision will be provided other than the applicant continued dissatisfaction with the appointment of the Public Guardian as ED's guardian, which is not the subject of this application. In regard to this application, the evidence is that, to date the applicants have failed to provide any evidence to support their assertion of alternate accommodation for ED at the Central Coast and on this ground alone their case cannot succeed. It is also difficult to see how the applicants' case more generally is likely to succeed when they have decided not to seek evidence of an expert who has reviewed the material, including expert reports, provided by the Public Guardian. It is this material (including reports) on which the Public Guardian relies in support of his case that his decision is the correct and preferable decision.
Hence, I am satisfied that the Public Guardian has established that the applicants' application lacks substance.

[13]

Is there a want of prosecution?

The applicants do not concede that they have occasioned any delay in the proceedings. However, I agree with the Public Guardian that the applicants have occasioned a significant delay in progressing the proceedings since July 2023, after the Public Guardian had provided his s 58 documents as directed by the Tribunal, in respect of the May 2023 decision. For the reasons set out below, I find that the applicants' delay in providing their evidence is a want of prosecution.
The usual first step in progressing an administrative review application is for the agency whose decision is the subject of review to provide the s 58 documents. As I have already noted, these are the documents an agency is required to provide. They consist of the documents the agency considers to be relevant to the Tribunal's determination of the application, namely the correct and preferable decision. The next step in the process is for the applicant to provide their evidence (and in some cases also submissions) and this is followed by the agency providing its evidence and submissions so that the matter can be listed for hearing.
In this case, the proceedings have not progressed any further than several orders having been made by the Tribunal for the applicants to file and serve their evidence. It is useful to reiterate when such orders were made and the applicants' compliance (if any) with those orders: 1. first, on 30 May 2023 the applicants were ordered to file and serve their evidence by 14 July 2023 - this gave the applicants six week within which they were to provide their evidence. There is no record of the applicants having objected to the making of this order. On 10 July 2023, four days before the applicants were to provide their evidence, they made an interim order application on the grounds that they could not comply with the 30 May 2023 order as the Public Guardian had denied them access to the Renfrew accommodation and the requested communications. Subsequently, the applicants did not press their interim order application; 2. on 25 July 2023, the Tribunal granted the applicants with an extension of a further nine weeks (to 29 September 2023) to provide their evidence. On 13 September 2023, around two weeks before they were required to provide their evidence, the applicants lodged a miscellaneous matters application seeking a non-publication order under s 64 of the NCAT. That application was heard and dismissed on 28 September 2023; 3. following the failure of the applicant to file and serve their evidence by 29 September 2023, on 19 October 2023, the Public Guardian had the applicants' application relisted for directions on 26 October 2023; 4. On 26 October 2023, the Tribunal vacated the orders that had previously been made (including the order that the applicants were to provide their evidence). Instead, the Tribunal made orders concerning the expert evidence the applicants sought to provide; and 5. On 23 November 2023, the Tribunal made an order giving the applicants another three months (to 1 March 2024) within which to provide their lay and expert evidence. Two months after the November 2023 directions hearing, on 30 January 2024, the applicants advised that they would not provide any expert evidence. However, they would seek to provide further material. No further material was provided by 1 March 2024 and on 5 March 2024, the applicants advised that they would need additional time to provide their further material.
As can be seen from the above, the Tribunal has on three occasions (30 May 2023, 25 July 2023 and 23 November 2023) made orders for the matter to proceed to the hearing of the matter. However, the matter has not progressed at all because the applicants have failed to provide their evidence, including expert evidence. The only time the applicants provided a reason for this failure was in July 2023, when the applicants asserted that they were unable to file and serve their evidence because the Public Guardian had refused to provide them with relevant documentation. As I have explained above, the documentation sought was not held by the Public Guardian and the applicants were advised that they could seek production of the documents by summons. Notwithstanding this advice, the applicants did not file any evidence as directed in the second timetable, or the third timetable, even though they were given ample time within to do so. Why they have not done so has not been explained.

[14]

Should the discretion be exercised to dismiss the applicants' application?

In my opinion, in this application, the factors relevant to whether the discretion should be exercised to dismiss the applicants' application are as follows: 1. the protective nature of these proceedings where the welfare and interest of ED is paramount; 2. the guiding principle in s 36(1) of the NCAT Act to facilitate the just, quick and cheap resolution to the real issues in these proceedings and the duty of the parties to the proceedings to co-operate with the Tribunal to give effect to the guiding principle and for that purpose comply with directions and orders of the Tribunal: NCAT Act s 36(3); 3. the fact that ED has been living at the Renfrew accommodation since June/July 2023; 4. the finding that the applicants have failed to comply with orders made by the Tribunal and by reason of those failures the evidence they were to provide was not provided; 5. a finding that the delay in the applicants providing their evidence in these proceedings is very substantial; 6. a finding that the applicants' application lacks substance and there has been a want of prosecution; 7. the prejudice to the Public Guardian in that the accommodation decision concerning ED remains uncertain. That is, other than assertions, the Public Guardian does not in fact know what the applicants' case is. This means he does not know what evidence he needs to provide in response to that provided by the applicants; 8. steps taken by the Public Guardian to progress the matter. For example, in October 2023 he had the matter relisted for directions after the applicants failed to provide their evidence by 29 September 2023. And again, when the applicants failed to provide their evidence in accordance with the 1 March 2024, and sought an extension of time within which to provide their evidence the Public Guardian did not stand idly by; and 9. the prejudice to the applicants in that they have a statutory right to seek review of the 16 May 2023 decision of the Public Guardian.
In my opinion, having regard to the above factors, in particular the welfare and interest of ED that this dispute over his accommodation be finalised, the balance lies in the discretion being exercised to dismiss the applicants' application because there has been a want of prosecution by the applicants and their case, in so far as it relates to the decision of the Public Guardian that is the subject of this application, lacks substance.

[22]

April 2023 stay application 10 On 10 April 2023, FQI, on behalf of the applicants sent, by email, an application for a stay or interim order form seeking the following: an order to STOP a transition or move to the new proposal being put forward by the public guardian an order to appoint an independent solicitor to represent the subject persons (sic) voice 11 The grounds for the application or order were stated to be; we ask the member to be diligent and consider our first stay in which now addresses of valid concerns. we ask for these orders to make certain that the subject person [ED] understands and has a choice has a chance to have his voice heard. we also as that the subject person [ED] not to be confused and overwhelmed by this NEW proposal at hand. we ask for these orders to STOP the public guardian function to eliminate confusion and distress to the subject person. in our proposal we asked for t months to assist the subject person to be fully are aware of our proposal. This proposal has been exposed to [ED] by way of social story. another transition another social story will only confuse [ED]. 12 On 11 April 2023, Judge Cole (Deputy President as she then was) made orders (in chambers) for the applicants to particularise their application by 17 April 2023. In this regard, the applicants were ordered to identify the decision the subject of their interim order application, the contents of that decision, the orders that were sought and the grounds on which the orders were sought. 13 On 13 April 2023 the applicants provided a large bundle of documents (400 pages) to the Tribunal. That bundle was attached to an email the second applicant (FGO) had sent to the Tribunal, the Public Guardian, DMO and Mr Hoyles. In that email, FGO provided some background to the substantive application he and ELQ had made. 14 On 18 April 2023, the Tribunal made an order listing the applicants' interim order application for hearing on the same day as the substantive proceedings were listed for further directions (9 May 2023).

[32]

5 March 2024 email from FQI 33 On 5 March 2024, on behalf of the applicants, FQI sent an email to the Tribunal Registry (copy to Mr Hoyles and AASGAA) in which she noted that ordinary accommodation was hard to find, let alone accommodation that needs to be assessed by 'health allied' and then approved by the Public Guardian. She asserted that ED had missed out on three 'fantastic' opportunities. She went on to say that the applicants were in the process of starting health allied assessments needed for a recent sources 'excellent' accommodation matched to ED's needs. She explained that the accommodation came about on 2 March 2024, and they were available to view it on 3 and 4 March. She said that 'it is rather difficult to put a time frame on' the assessment process and requested that the 'direct' the applicants on how to 'proceed with the new address' which is different to other proposals they have made. 34 On the same day, the solicitor for the Public Guardian sent (via email) a letter to the solicitor the applicants had engaged. In that letter the Public Guardian's solicitor responded to the various matters raised by the applicants' solicitor in his letter of 8 February, which included these proceedings. In that letter the solicitor of the Public Guardian foreshadowed that she would be instructed to make an application for the applicant's application to be dismissed because the applicants had failed to provide any evidence. 35 On the same day, the Public Guardian's solicitor also sent an email to FGO (with a copy to FQI, and Mr Hoyles) noting that in his email of 30 January 2024 the applicants were intending to prepare reasons about why they were seeking to vacate the current timetable that was in place, yet the solicitor had received no further information and that she would be grateful for a copy of those reasons by the following day. In the absence of being provided with such reasons, the solicitor expected that she would be instructed to seek that the proceedings be dismissed under s 55(1)(d) of the NCAT Act. 36 One and a half hours later, FGO replied to the email of the Public Guardian's solicitor. In his response, FGO said that the purpose of the upcoming directions date was to set an actual hearing date and that the applicants would request that they be provided with the opportunity to update their bundle of documents. 37 On 5 March 2024, FQI, on behalf of her husband ELQ (the first applicant), sent an email to the Tribunal Registry, Mr Hoyles and AASGAA in which she said: We are in the process of starting the health allied assessments needed for a recent sourced "excellent" accommodation matched to the subject persons (sic) needs. This accommodation came about on the 2rd of march, we were then available to go and view it on the 3rd. on the 4th we did all possible to expedite the health allied team to start the assessments as much as we can, but this takes time, we are about to receive photos and a general application of the property itself.

ELQ v Public Guardian

At a glance

Court

Decision date

Source

Judgment (33 paragraphs)

Parties

Legislation Cited (11)

Cases Cited (16)