FHJ v Public Guardian

FYD's application for adjournment

1. At the opening of the hearing FYD sought an adjournment. I heard from her in relation to that and from Mr Keevers of the Crown Solicitor in response. FYD's explanation of her grounds for an adjournment was somewhat unclear. In attempting to understand those grounds I have made appropriate allowance for the fact that she is not legally qualified.
2. The background to the adjournment application is that on 9 November 2023, that is, two business days prior to this hearing of the current application, the Tribunal constituted by Senior Member Mulvey made orders disposing of two procedural applications by FYD which are directly relevant to the present proceedings. They were: 1. an application (the joinder application) to join the present application with proceedings number 2022/3344153, in which FYD as applicant seeks a review of decisions which have been made about FZZ's accommodation (the accommodation proceedings); and 2. an application (the GAL application) for the appointment, under section 45(4D) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), of a guardian ad litem (GAL) in the present proceedings, with a view to the GAL being available (using her term) to "represent" her son.
3. Senior Member Mulvey dismissed both the joinder application and the GAL application.
4. On the morning of the following day, 10 November 2023 (being the business day prior to the present hearing), FYD sent the Registry a Notice of Appeal which challenged each of Senior Member Mulvey's decisions. I have referred to the two appeals respectively as the joinder appeal and the GAL appeal.
5. FYD gave no prior notice of her appeals to the Crown Solicitor. Nor did she serve the Notice of Appeal or any related papers for either appeal on the Crown Solicitor. On the morning of this hearing the Crown Solicitor, having been apprised of the existence of the appeals, had written to FYD indicating that unless the Crown Solicitor received a Notice of Appeal which disclosed an arguable case on appeal in respect of both of Senior Member Mulvey's decisions, the Crown Solicitor would oppose any adjournment of today's hearing. Mr Keevers of the Crown Solicitor informs me that no communication from the Applicants regarding the appeals has been received.
6. So, clearly the Crown Solicitor has been placed at some strategic disadvantage in making submissions on this adjournment application.
7. In addressing her adjournment application, FYD asks that the present hearing be adjourned pending the result of each of the two appeals. She says that if she succeeds in the appeals (or, as I understand her position, either of them) the result will be that FZZ will, to use her expressions: "have an advocate" and "have a voice" in the matter. I take the "voice" to be that of the proposed GAL.
8. She also said this (Recording on mp3, Track 4 at [11.49]): There was talk about the guardian ad litem not having, I don't know, legal jurisdiction and if that's the case I would like to appoint an independent lawyer to represent the subject person.
9. It is important in ensuring procedural fairness for FYD as an unqualified party to understand the nature of that submission. My understanding of it, based on the context and FYD's subsequent remarks, is this. 1. It is apparent that he adjournment application is not made in order that FYD might obtain legal representation for FZZ (being "the subject person" she refers to) in the present proceedings. Her son is not a party to these proceedings and there is no indication that she seeks to have him joined as a party. 2. It is equally apparent that she is not seeking an adjournment of the present proceedings in order to engage a lawyer for herself (as her closing phrase cited above makes clear). 3. Rather, as is confirmed by the context and the procedural history of FYD's current applications relating to FZZ, I understood her to be saying that if she succeeds in either the GAL appeal or the joinder appeal, she will then seek legal representation for her son in the accommodation proceedings; that it is important that her son have representation and accordingly the present hearing should be adjourned at least until the availability of representation is clarified; that is, by the result of her appeals.
10. Mr Keevers for the Public Guardian strenuously opposes any adjournment on the following grounds. 1. The joinder appeal would constitute an appeal from an interlocutory decision and there are considerable and well-established legal barriers to the success of an application for such an appeal. 2. The accommodation proceedings are far less advanced than the application presently before me. There is not yet even a timetable for evidence in those proceedings. In those circumstances and putting the best light on it from FYD's point of view, even if the joinder appeal succeeds (which will not be known for some time) resulting in the present proceedings being joined with the accommodation proceedings, those merged proceedings would be unlikely to be heard until the latter half of 2024; so, effectively FYD is seeking an adjournment of at least 8 months. 3. The Public Guardian has indicated and Mr Hoyles, the appointed GAL in the accommodation proceedings, has apparently conceded that little is likely to be accomplished by the appointment of a GAL in the present proceedings. 4. None of the joinder proceedings, the GAL proceedings or the accommodation proceedings impacts directly upon the determination of the issues in the present hearing, which is concerned with the need for the appointment of an advocate.
11. I decided the refuse the adjournment application, for the following reasons. 1. I think Mr Keevers' prognostications about the substantial delay likely to be incurred if an adjournment is granted are accurate and that and his other grounds are persuasive. 2. The central issues in this matter stand to be determined by considering FZZ's welfare and interests. Indeed, as discussed in greater detail below, I have a duty to observe and apply the general principles established by section 4 of the Guardianship Act 1987 (NSW) (Guardianship Act) and relevantly the "paramount consideration" requirement of section 4 (a), which applies to the current situation. Section 4(a) obliges me to give paramount consideration to FZZ's welfare and interests. 3. Any delay in determining the current application occasioned by the need to await the result of FYD's two most recent appeal applications and the substantial delay which will be occasioned if the joinder appeal is successful (thereby joining the present proceedings to the accommodation proceedings with an accompanying substantial delay of the hearing as noted above) would be most unfortunate. In any case there will be some delay in having the appeal listed, considered and decided. But what is of greater moment is that the overall delay in having the current application before me decided would clearly be inconsistent with preserving the welfare and interests of FZZ, contrary to the "paramount consideration" in section 4 of the Guardianship Act. 4. Insofar as FYD has expressed concerns about her son's lack of a voice in the present proceedings, those concerns should be at least partially allayed because Mr Hoyles, who is the appointed GAL in the accommodation proceedings, has helpfully made himself available by telephone for this hearing and (there being no objection to this course of action) I have indicated to the parties that I will hear his views.

Relevant statutory provisions: the Section 4 principles

1. As noted above, Section 4 of the Guardianship Act sets out a duty which must be complied with by anyone exercising functions under that Act with respect to people who have a disability, to comply with certain principles which are then set out. They are generally referred to as "the section 4 principles".
2. The Public Guardian, in determining the proposal to appoint AASS (Grace Fava and/or Nadia Napolitano) as FZZ's permanent independent advocate, was exercising a function under the Guardianship Act and so was bound by the section 4 principles. Similarly the Tribunal, in conducting the present review of the Public Guardian's decision to decline to make that appointment, is exercising a function under that Act and so is also bound to apply the section 4 principles.
3. 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.
4. The relevant principles as to the application of section 4 emerges from the recognised case law and in particular WL v NSW Trustee and Guardian [2011] NSWADTAP 22 (WL) at [71] and P v NSW Trustee and Guardian [2015] NSWSC 579. The principles have been applied more recently in the Appeal Panel of this Tribunal; for example in ZDU v ZDV [2017] NSWCATAP 197 at [35]- [36] and in ZWA v ZWB [2022] NSWCATAP 113 at [51]- [56] and in many reported decisions of this Division of the Tribunal in conducting an administrative review of decisions of the Public Guardian. See for example DYH v Public Guardian [2021] NSWCATAD 136 (DYH) at [72]-[78].
5. In WL the Administrative Decisions Tribunal Appeal Panel, in which Deputy President Hennessy presided, undertook a detailed analysis of the section 4 principles. The Appeal Panel observed, at [71]: Section 4 is more than an objects clause. Objects clauses articulate the intended purpose of the legislation and regard may be had to them to resolve uncertainty or ambiguity when interpreting and applying the remainder of the legislation: Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd (unreported…14 August 1996).The "principles clause" in the Guardianship Act not only articulates the intended objects of the Act, it requires any person exercising functions under that Act to observe those principles.
6. Although each relevant paragraph of section 4 needs to be considered by a decision-maker and must bear on the decision to be made, paragraph (a), which requires consideration of the welfare and interests of the person with a disability, is, in terms, the paramount consideration. As was said in DYH, at [84]: ..any decision reached on consideration of the paragraph (b) to (h) principles must pass through the "final filter" of paragraph (a). It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person with a disability.

Documentation and submissions considered

1. The following documentation (as well as purely administrative documents and correspondence) was made available for the hearing and considered by me: 1. For the Applicants: the Application and 11 pages of initial supporting material, all documentation and submissions lodged with the Registry including submissions lodged on 14 December 2023 with pages numbered 1-92; subsequent email from FYD's husband. 2. For the Public Guardian: section 58 bundle; Respondent's Tender Bundle (with index), Respondent's Further Tender Bundle; written submissions received 3 October 2023; post-hearing submissions relating to summons material.
2. At the hearing I heard submissions from FYD on behalf of the Applicants and from the Crown Solicitor on behalf of the Public Guardian. As noted above Mr Bill Hoyles, the appointed GAL for FZZ in the accommodation proceedings, appeared by audio-visual link and provided a brief account of his observations obtained in to his role as GAL in the separate proceedings.

The parties' respective cases

1. As I understand it (on the basis of a generous approach because the Application is made by non-lawyers) the Applicants' case in general terms is that the decision under review is not the correct or preferable one because: 1. FZZ's welfare and interests are materially prejudiced under the present arrangement under which the Public Guardian makes all significant decisions for FZZ, because there is no one who (adopting the Applicants' terminology) actually "speaks for him" or represents his interests. The proposed advocates could represent his interests and protect his welfare; and 2. each of AASS, Ms Fava and Ms Napoletano is appropriately authorised and experienced to act as advocate for FZZ and so should be appointed.
2. The Applicants' case is founded on their assertions that: 1. currently and for the foreseeable future, FZZ's welfare and interests can be promoted and preserved only by a party independent of the Public Guardian; and 2. AASS and Ms Fava and Ms Napolitano, being the persons identified as principally responsible to undertake any such advocacy function for AASS, are willing and able to accept the appointment and to act in the role. For convenience, I have in my further observations and findings below referred to AASS, Ms Fava and Ms Napolitano collectively as "the proposed appointees".
3. The Applicants say in particular that the Public Guardian has ignored FZZ's health; for example by having failed to arrange a dental check-up for him for 3 years and refusing him access to a natural therapist despite that having had some positive benefit. They say also that the Public Guardian has failed to ensure that FZZ enjoys an adequate measure of social connection. They further assert that a "seizure mattress" which was clearly needed has not yet been obtained for FZZ despite the need for one having been raised in mid-July 2023 by Mr Hoyles in his capacity as appointed GAL in related proceedings. That delay seems to have been verified by Mr Hoyles' testimony in the present matter. They also assert that the Public Guardian has withheld information about FZZ's progress and, by implication, that some relevant professional reports have been redacted by or at the direction of the Public Guardian.
4. The Applicants' contention is, in broad terms, that the proposed appointees should be appointed as advocates to remedy these and the other deficiencies in FZZ's care.
5. I add for completeness that in some of their correspondence and submissions the Applicants' language has strayed from the rational to the highly emotive, in addressing the Public Guardian's actions and decisions. Whilst some allowance can of course be made for strained emotions and for the Applicants' natural concern for a family member who has a substantial disability and is placed in special accommodation, some of their correspondence directed to the Public Guardian descends into intemperate and combative language which in some instances (for example, an email of 14 April 2023) adopts sarcastic remarks. That is inappropriate and unhelpful.
6. The case for the Public Guardian is, in summary as follows. 1. The Applicants' proposal is ambiguous and the scope of the proposed appointment of advocates is not clear 2. The Applicants have not provided persuasive reasons why the appointment of an independent advocate is necessary. 3. Neither of the nominees for appointment has established that they have a meaningful understanding of their proposed task. 4. In any case it would not be appropriate for Ms Fava or Ms Napolitano to be appointed, because they have not clearly demonstrated consent to act or an understanding of the scope of their engagement; they have been involved in related proceedings which may place them in a conflict of interest position. 5. The nominees have not been made available to provide evidence at the hearing. 6. it is open to the Tribunal to find on the evidence that a collateral purpose for the Applicants' nomination of AASS and Ms Fava and Ms Napolitano; namely that the nomination is based on the Applicants' attempt to find support for their own views.

The real issues for determination

1. As discussed above, the legal position as to the proper application of the principles established by section 4 of the Guardianship Act is clear. Anyone exercising functions under that Act must give paramount consideration to the welfare and interests of the person with a disability. The Tribunal, in determining an application such as the present one, is effectively standing in the shoes of the Public Guardian as decision-maker: and on that basis is exercising functions under the Guardianship Act WL v NSW Trustee and Guardian [2011](WL Case) NSWADTAP 22; P v NSW Trustee and Guardian [2015] NSWSC 579; ZDU v ZDV [2017] NSWCATAP 197 So the Tribunal must comply with section 4 by observing the principles which it sets out.
2. In order for me to conclude that it would be in FZZ's welfare and interests for the proposed appointees to be appointed as his permanent independent advocates I would need to be satisfied of each of the following matters. 1. that the scope of the proposed appointment is clear. As the Public Guardian has contended, the Tribunal could not be satisfied that the proposed appointment would be in FZZ's best interests if the proposal itself is ambiguous or if the respective roles of the Public Guardian and the proposed advocates are not clear; 2. that each of AASS itself, Ms Fava and Ms Napolitano (collectively, the proposed appointees) has consented to act as FZZ's permanent independent advocate and has demonstrated a clear and substantial understanding of the scope of their proposed role and their duties; 3. that there is a demonstrable need for the appointment of the proposed independent advocates in order to protect FZZ's welfare and interests. In particular I would need to be satisfied that the appointment of the advocates would not undermine the decision-making authority and capacity of the Public Guardian as FZZ's appointed guardian; and 4. the suitability and qualification each of the proposed appointees.

Consideration

1. In seeking to assess those 4 matters I have reviewed all the material provided by the Applicants and taken account of what Ms FYD said in her oral submissions and her submissions in reply as well as Mr Hoyles' testimony, insofar as it was relevant to this issue. That did not clarify the intended scope of the functions of the proposed advocates.
2. In opening remarks Ms FYD asserted that FZZ was in need of "a personal meeting with someone who can represent his interests", but I was unable to glean from her submissions any clarity as to the scope of the proposed advocate's role.
3. The Crown Solicitor's written submissions indicate an initial impression that, in substance, what is being sought is the appointment of a "supports coordinator", a similar service having previously provided for FZZ by the care organisation Anala. However the Crown Solicitor recounts that Anala subsequently withdrew all their support services for him because of "high levels of stakeholder engagement by (FZZ)'s parents" and the nature of communications, in particular those from "the paternal family" (which I take to comprise or include the present Applicants) which had an adverse effect on Anala staff. The Applicants did not deal with these assertions and FYD did not address them in her submissions in reply.
4. Although the exact scope of the functions which the proposed advocate is expected to undertake has never been made clear and family members appear to have differing views as to the scope of the proposed advocates' role, I gained the impression from the documentation and Ms FYD's oral submissions that what is now sought by the Applicants is the appointment of an advocate at large: that is, with the authority to advocate generally for all aspects of FZZ's welfare through his accommodation, health care, medical and dental treatment and services. FYD provided no clarity as to this in her initial submissions or submissions in reply.
5. The Applicants' written submissions and FYD's submissions at the hearing include accounts of particular circumstances in the course of FZZ's current accommodation and care which if verified should be of substantial concern and might well be addressed by his guardian. But that of itself does not require the Public Guardian (or the Tribunal standing in his shoes) to sanction the present proposal for appointment of particular advocates with wide-ranging powers.
6. That is the more so because the nominated advocates are not personally before the Tribunal, having not been called by the Applicants in support of their case. Moreover, there is nothing from them which bears any close resemblance to reliable evidence as to a clearly defined role for the advocates or their understanding of it, the terms on which they are prepared to be appointed, the duration of that appointment or their consent to be appointed.
7. The Crown Solicitor on behalf of the Public Guardian contends that I should draw what is known as a "Jones v Dunkel inference" from the failure of the Applicants to lead direct evidence from Ms Fava and Ms Napoletano. Briefly, that evidentiary inference derives from the High Court's decision in Jones v Dunkel [1959] HCA 8; 101 CLR 298. (Jones v Dunkel). The principle is that If a witness, who appears to be in a particular party's "camp" is not called upon to give evidence and there is no explanation tendered for that, it may be assumed that that witness' evidence would not have assisted that party's case.
8. For the purpose of the possible application of the Jones v Dunkel inference in these proceedings it seems indisputable that Ms Fava and Ms Napoletano are properly regarded as being "in the camp" of the Applicants. The correspondence in evidence reveals that they, through AASS, have remained generally open to the possibility of being appointed as advocates and have engaged in correspondence and I understand attended meetings with the Applicants.
9. I understood FYD to say that she had asked Ms Fava to be available for this hearing but that was unable to be present in person today and that was one reason why she, FYD, had sought an adjournment. But the Registry had made it clear to the parties that today's hearing would be conducted through audio-visual technology and arrangements might well have been made for Ms Fava to have participated (even for the relevant part of the hearing) by telephone or audio-visual link. There was no indication that the Applicants had done anything to attempt to arrange that prior to or during the hearing.
10. Given the tenacity and persistence with which the Applicants have pursued this matter, the importance which they clearly attach to an urgent disposal of the application and to the appointment of an advocate and the obvious value of any evidence from as to their putative advocacy role, I find it remarkable that the Applicants failed to arrange for either Ms Fava or Ms Napolitano to be available for this hearing.
11. For all those reasons I do draw a Jones v Dunkel inference in respect of the failure of the Applicants to call Ms Fava or Ms Napolitano. That is, I infer from their absence that their evidence would not have assisted the Applicants on the central issues; being the nature and extent of the proposed appointments and their willingness to be appointed.
12. It is true that section 38(2) of the Civil and Administrative Tribunal Act 2013 (NCAT Act) makes it clear that in hearing and determining an application such as this : The Tribunal is not bound by the rules of evidence…
13. But I do not see that that prevents the Tribunal, in appropriate circumstances, from applying the well-established principle in Jones v Dunkel, so as to draw an available inference of the sort I have drawn. Section 38 (2) appears to be facilitative rather than exclusionary in its effect. The phrase cited above is followed by these words: ..and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
14. In any case I draw only the limited inference contemplated by Jones v Dunkel; namely that any evidence provided by Ms Fava or Ms Napoletano would not have assisted the Applicants' case. It is clear that Jones v Dunkel cannot be used to infer that their evidence would have been unfavourable to the Applicants' case: ASIC v Hellicar (2012) 247 CLR 345; Odgers Uniform Evidence Law; 16th edition 2021 p 345 para [EA.55.180] and I do not draw such an inference.
15. Even if I am in error in applying Jones v Dunkel to draw this inference, nothing in section 38 or elsewhere in the NCAT Act prevents me, in the course of weighing-up the evidence of each party, from taking into account the major deficiency in the Applicants' case constituted by the absence of any direct evidence from the very people nominated as advocates as to such fundamental matters as whether or not they were prepared to accept such an appointment, their understanding of the scope of FZZ's welfare, interests and needs and the issues on which they proposed to offer support through their advocacy. I do take that deficiency into account.
16. Although the notion of onus of proof has no part in administrative review proceedings such as these (see for example Meacham v Commissioner of Police [2020] NSWCATAP 107 at [83]), it would be inconsistent with the Tribunal's role to allow a party (here, the Applicants) simply to present what are said to be facts and leave it to the Tribunal to search out the truth of any and all assertions and contentions of fact made by that party, because would amount to shifting the burden of providing the evidence to support that party's claims to the Tribunal itself: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [78].
17. Even though the rules of evidence do not apply, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation" as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68. Here, the scope of the proposed appointments is unclear and the proposal itself is ambiguous in that respective roles of the Public Guardian and the advocates have not been sufficiently defined. Clarity (and certainty) might have been provided by Ms Fava or Ms Napolitano. But they were not made available.
18. In all the circumstances discussed above I am unable to be satisfied as to any of the 4 matters raised at [33]. I cannot properly conclude that a proposal which has the defects and omissions of detail which this one does should be accepted as one which promotes the welfare and interests of the person with a disability, here, FZZ.

Conclusion and orders

1. It follows that the Public Guardian's decision to decline the Applicants' proposal, being the decision under review, is the correct and preferable decision. I will therefore order as follows.

orders 1. The disclosure of the names of the person under guardianship who is the subject of these proceedings, the First Applicant and the Second Applicant is prohibited under section 64 (1) (a) of the Civil and Administrative Tribunal Act 2013. 2. The Second Applicant's application for adjournment of the hearing is dismissed. 3. The decision of the Public Guardian under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 February 2024