F v NSW Trustee and Guardian

THE NATURE OF THE PROCEEDINGS IN THE COURT

1. By a summons filed on 8 March 2017 (and successively amended on 28 March 2017 and 11 April 2017) the plaintiff challenges in the Supreme Court decisions made by the Civil and Administrative Tribunal of New South Wales ("NCAT") on 27 February 2017.
2. On that date the Tribunal made "guardianship" and "financial management" orders under the Guardianship Act 1987 NSW, the effect of which was: 1. to appoint the NSW Public Guardian as the plaintiff's guardian, under a continuing guardianship order operative for 12 months, with functions limited to decisions about accommodation, health care, medical and dental consent and the provision of services (Guardianship Act 1987, sections 14-18); and 2. to commit to the NSW Trustee management of the plaintiff's estate under the NSW Trustee and Guardian Act 2009 NSW (Guardianship Act, sections 25E-25G).
3. The Tribunal published its reasons for these decisions on or about 22 March 2017.
4. The plaintiff's challenge to the Tribunal's decisions is made by way of appeal proceedings instituted under clause 14(1)(b) of schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.
5. So far as is material, clause 14 is in the following terms (with emphasis added): "14 APPEALS TO SUPREME COURT UNDER THIS PART (1) A party to proceedings in which an appealable Division decision [of the Guardianship Division of NCAT] is made may appeal to the Supreme Court against the decision: (a) in the case of an interlocutory decision of the Tribunal--with the leave of the Court, or (b) in the case of any other kind of decision--as of right on any question of law, or with the leave of the Court, on any other grounds…. (2) An appeal under this Part is to be instituted: (a) in the case of an ancillary or interlocutory decision of the Tribunal--within the period ending 28 days after the relevant decision has been made, or (b) in any other case--within the period ending 28 days after the day on which the written statement of reasons for the decision is given to the person seeking to appeal, or (c) within such further time as the Supreme Court may, in any case, allow. (3) The Supreme Court in an appeal under this Part may: (a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and (b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances. (4) In determining an appeal, the Supreme Court may make such orders as it considers appropriate in light of its decision on the appeal, including (but not limited to) orders that provide for any one or more of the following: (a) the decision under appeal to be confirmed, affirmed or varied, (b) the decision under appeal to be quashed or set aside, (c) the decision under appeal to be quashed or set aside and for another decision to be substituted for it, (d) the whole or any part of the case to be reconsidered by the Tribunal at first instance, either with or without further evidence, in accordance with the directions of the Supreme Court. (5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal."
6. The plaintiff commenced his proceedings within the time limited by clause 14(2)(b), without need of an order extending the time for appeal.
7. On 3 April 2017 the Court made an order, under clause 14(5), that these proceedings not operate as a stay of any decision of NCAT under appeal. The consequence of that order is that for the past several months the Public Guardian and the NSW Trustee have, within their respective provenances, managed the person and property of the plaintiff.
8. The NSW Trustee (the First Defendant) and the Public Guardian (the Third Defendant) have filed submitting appearances, but appeared on the hearing of the proceedings to assist the Court.
9. The South Eastern Sydney Local Health District (the Second Defendant) is the plaintiff's contradictor. A nominee of the Health District was the applicant for guardianship and financial management orders in the Tribunal.
10. The Health District applied to the Tribunal for orders as a consequence of experience of repeated hospitalisation of the plaintiff, and concerns about his welfare, when left only to the care of his wife at home.
11. The Plaintiff, with the support of his wife, had earlier, unsuccessfully pursued the Health District in the Supreme Court, the Court of Appeal and the High Court of Australia claiming compensation for a deterioration in the plaintiff's health which they attribute to hospitals administered by the Health District.
12. Despite their lack of success in those proceedings, the plaintiff and his wife continue to demand that the Health District provide the plaintiff with "compensation" designed to allow him to enjoy "24/7" nursing care at home.
13. The Plaintiff's wife is the dominant voice in the presentation of his case.
14. Both are native Mandarin speakers with limited English language capability. At the hearing of the proceedings they were assisted, as was the Court, by an accredited interpreter.

THE AMBIT OF THESE PROCEEDINGS

1. Clause 14(1)(b) provides for an appeal to the Court, "as of right on any question of law, or with the leave of the Court, on any other grounds".
2. The plaintiff's summons was amended twice in response to the Court's invitations that his originating process conform to the parameters set out in clause 14(1)(b): 1. by identifying a question of law; and/or 2. by specifying other grounds of appeal, supported by an application for leave.
3. At no stage of the proceedings has the plaintiff specified a question of law in support of his appeal.
4. His general proposition that he has no need of a guardian or financial manager because, he submits and I accept, he is not cognitively or intellectually disabled does not lend itself to formulation as a question of law in the context of these proceedings. He is admittedly physically disabled and unable to take care of himself without substantial assistance.
5. The plaintiff's proceedings can be maintained if, and only if, the Court grants leave to appeal on a ground of appeal other than a "question of law", a concept explained in C v W [2015] NSWSC 1774 at [43] and [48]-[50] citing, inter alia, Re R [2000] NSWSC 886 at [24]-[25] and Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]. Cf, Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[7].
6. The proceedings present no occasion to invoke the inherent jurisdiction of the Court. That jurisdiction is reserved for dealing with exceptional cases, as explained in Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4th) 1 at 17 (approved by the High Court in Marion's Case (1992) 175 CLR 218 at 258); Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 at [43]-[45]. The plaintiff's proceedings must satisfy the requirements of clause 14(1)(b) or be dismissed.
7. The plaintiff seeks to challenge the Tribunal's decisions, essentially, by assertions that: 1. although he is physically disabled and in need of full-time, 24 hour care, he is not cognitively or intellectually disabled; and 2. the Tribunal should have found that, although he needs assistance, he is capable of managing his own affairs (both his person and his estate), at home, with the assistance of his wife (and, prospectively, publicly funded carers, to whom he has no presently established entitlement), without the intervention of either the Public Guardian or the NSW Trustee.
8. On an application by the plaintiff for a grant of leave under clause 14(1)(b), and for an appeal by way of a "new hearing" with supplementary evidence under clause 14(3), the Court received additional evidentiary material from the Plaintiff.
9. That evidence included: 1. an updated report dated 20 July 2017 from a clinical psychologist, Michael McMahon (Exhibit P2) whose earlier report dated 3 August 2016 (substantially to the same effect) was taken into account by the Tribunal, and weighed in the balance with other medical evidence (including, particularly, that of Dr Seo Ling, a consultant physician and geriatrician), at the time the Tribunal made the orders under challenge; and 2. complaints of mistreatment in the nursing home where, as determined by the Public Guardian (on notice to the NSW Trustee), the plaintiff presently resides, which complaints have been addressed by the Public Guardian in the ordinary course.

CONSIDERATION

1. The appeal process for which clause 14 provides is not a substitute for the ordinary processes of NCAT. Those processes include a regular review of guardianship orders, procedures amenable to an application for revocation of guardianship and financial management orders, and procedures designed to permit decisions of the Public Guardian and the NSW Trustee to be reviewed.
2. The present proceedings involve no question of principle, and no irregularity, which requires intervention of the Court. These are elements ordinarily required to ground a grant of leave under clause 14(1)(b), as explained in P v NSW Trustee and Guardian [2015] NSWSC 579 at [190]-[198], adapting Collins v Urban [2014] NSWSCATAP 17 at [84].
3. The Tribunal's decisions are supported by a formal statement of reasons which correctly states the law and applies it in a logical manner by reference to evidence amply supportive of the Tribunal's conclusions. No irregularity is alleged to have tainted the Tribunal's decision-making procedures.
4. The statutory criteria for the appointment of a guardian, and those for the appointment of a financial manager, were specifically addressed by NCAT.
5. The Tribunal assessed the plaintiff's capacity for self-management by reference to his particular circumstances and his functionality, drawing upon contemporary caselaw: in particular, P v R [2003] NSWSC 819 at [26]; Re D [2012] NSWSC 1006 at [58]; PB v BB [2013] NSWSC 1223 at [8]; CJ v AKJ [2015] NSWSC 498 at [38]; and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].
6. Applying McD v McD [1983] 3 NSWLR 81 at 86 (and noting Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]), the Tribunal viewed the plaintiff's capacity through a forward-looking prism focussed, not merely on the time of the hearing before it, but also on the reasonably foreseeable future.
7. The Tribunal was concerned, not only that the plaintiff needs a high level of care in attending to the personal functions of daily living, but also that he defers in all medical, accommodation and care decisions to his wife, whose decisions (including a refusal to receive training necessary to equip her to care for him at home) are, as the Tribunal apprehended, both irrational and hazardous. As found by the Tribunal, the plaintiff requires assistance with medical supervision; mobilisation; feeding (by reason of diminished function in his hands); food thickening; in taking medication (because he struggles physically to take tablets); and with showering and putting on his clothes. Each finding made by the Tribunal was expressly supported by reference to evidence before the Tribunal.
8. In pursuing these proceedings the plaintiff has chosen, and persisted in his choice of, the wrong forum for any ongoing complaint he has, either about the principal decisions of the Tribunal presently under challenge or about particular decisions made by the Public Guardian and the NSW Trustee pursuant to their appointments by the Tribunal. The Court is not a mere alternative to ongoing engagement with the Tribunal in the ordinary course of its business, still less a mere substitute for routine engagement with the Public Guardian and the NSW Trustee.
9. There is little doubt that the Plaintiff and his wife have a strong, burning sense of injustice grounded in continuing dissatisfaction about the result of the Plaintiff's common law compensation proceedings. That sense of injustice appears to have been a contributing factor in their failure to engage fully with the Public Guardian, the NSW Trustee and the health services provided to them.
10. The orders under appeal were made by the Tribunal with express reference to the criteria for which section 4 of the Guardianship Act provides.
11. Section 4 is 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."
12. By operation of section 3(2) of the Guardianship Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled; (b) who is of advanced age; (c) who is a mentally ill person within the meaning of the Mental Health Act 2007 NSW; or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such extent that he or she requires supervision or social habilitation.
13. The Tribunal was entitled, on the evidence before it, to find that the plaintiff is a person who has a disability and that he is a person in need of a guardian and a financial manager.
14. The Tribunal gave specific attention to the need for the welfare and interests of the Plaintiff to be given paramount consideration, and to the operation of the principles otherwise identified in section 4.
15. It is not open to the Court simply to set aside a regular decision of the Tribunal, authorised and governed by legislation, without regard to the statutory scheme embodied in the Guardianship Act, the NSW Trustee and Guardian Act and the Civil and Administrative Tribunal Act. A grant of leave under clause 14(1)(b) ordinarily requires the presence of a question of principle, or some form of irregularity in the decision or the decision-making processes of the Tribunal, to justify appellate review of a Tribunal decision. Clause 14 does not provide a vehicle for the Court, in the ordinary course, simply to interfere with the processes of the Tribunal or to become an alternative forum at large.
16. The appropriate course for the plaintiff, on the materials presented to the Court, is to engage with the Public Guardian and the NSW Trustee and to utilize the review processes available in the Tribunal.

THE COURT'S DETERMINATION

1. For these reasons I refuse to grant leave under clause 14(1)(b) and, accordingly, I order that the Plaintiff's amended summons be dismissed.
2. [The parties were invited to indicate whether any other orders were sought.]
3. I note that, after consideration, each of the defendants has declined to make an application for costs. So, the order of the Court simply is that the plaintiff's amended summons be dismissed, with no order as to costs.
4. At the request of the second defendant, I also order that Exhibit P11 be released to the solicitor for the second defendant for the purpose of copying, and provision of copies to all other parties, and then return to the Court. I order that the appeal book and all exhibits otherwise remain with the Court pending further order. In a case like this it is appropriate that they all remain with the Court file indefinitely, available if required.

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: 29 September 2017