FHJ v Public Guardian

Notice of Appeal

1. On 20 February 2023 the Appellants lodged a Notice of Appeal. Attached to the Notice of Appeal are submissions running to 34 paragraphs. From the submissions the following grounds of appeal appear: 1. Ground 1: the Tribunal failed to provide adequate reasons. 2. Ground 2: the Tribunal failed to consider "admissions" by the Respondent at the hearing and its conduct which illustrated maladministration of the Respondent's authority. 3. Ground 3: the Tribunal should have recognised that the Respondent had a duty of care and applied other legislation to ensure natural justice, such as the Disability Inclusion Act 2014, the Anti-Discrimination Act 1977 and the Guardianship Act 1987. 4. Ground 4: the Respondent decided not to act or consider the Appellants' June proposal and that is effective as a decision which is a reviewable decision.
2. The balance of the paragraphs contained in the submission attached to the Notice of Appeal contain details of the concerns that the Appellants have regarding the son's current care, and difficulties with their access.
3. It appears that the Respondent did not file a Reply or provide an explanation as to why a Reply was not filed.

Appellants' Submissions

1. The Appellants' submissions were contained in an affidavit of the Second Appellant (who is the stepmother of the son). Her submissions may be summarised as follows: 1. The Tribunal misconstrued the definition of "decision" in the ADR Act and did not take into account other legislation under the jurisdiction of the Tribunal. 2. The definition of "decision" includes "imposing a condition or restriction" - see s 6(d). The Appellant submitted that the Respondent had, by refusing the son access to the Appellants, imposed a restriction and/or a condition. 3. Section 4 of the Guardianship Act imposes general principles that must be adhered to and observed by the Respondent at all times. Restricting access is a breach of s 4(g) and (e), although not "time specific" the restriction is "action specific".
2. The Appellants' submissions go on to make reference to the Anti-Discrimination Act and more general principles concerning obligations for the proper care of a person with a disability. We do not see that those submissions are germane to our decision.
3. With the Appellants' submissions the Appellants lodged a bundle of documents including correspondence. These documents included an affidavit of the Second Appellant sworn 29 December 2023. That affidavit states that there are separate proceedings in the Tribunal concerning care of the son. During the hearing of the appeal the Respondent's representative confirmed that there are other proceedings concerning the appointment of the guardian, the terms of the guardian's powers and proceedings concerning the current residential location of the son.
4. The affidavit of 29 December 2023 states that the Appellants had an informal arrangement with the supported living provider to visit the son on Mondays, Tuesdays and Wednesdays (not counting a monthly visit by which the son would travel to the Appellants). The affidavit states that there were two alleged incidents which resulted in the Appellants' access being further limited. The access is now limited to Wednesday evenings. This was confirmed at the hearing of the appeal, when the First Appellant informed us that he currently sees the son on Wednesday evenings only from 6:30 pm until 8 pm.
5. There are a number of emails in the Appellants' bundle. It is not clear whether they were before the member at first instance. In one of those emails, a representative of the supported living provider states (email dated 30 November 2023) that she is unable to communicate directly with advocates appointed by the Appellants to negotiate access with representatives of the supported living provider and that the consent of the Respondent is required before engagement in discussions about current access arrangements. Whether that response from the supported living provider constituted the imposition of a condition or restriction engaging s 6(d) of the ADR Act was not considered.
6. Amongst the Appellants' bundle of documents is a letter dated 29 January 2024 from the Respondent to the Appellants. We were informed at the hearing of the appeal that that letter was not before the Tribunal at first instance. It is of relevance to the determination of this appeal to record some parts of the letter as follows: 1. The letter refers to the Appellants' proposal for access arrangements lodged with the Respondent on 28 June 2023 and states that the author has "before me information that may be the reason or part of the reason for declining your proposal, in whole or in part. As a matter of procedural fairness, I have set out that information below, together with why I consider that the information may lead to declining your proposal, in whole or in part". 2. The letter then refers to communications that the Respondent has received from the supported living provider. The substance of those communications records alleged conduct by the First Appellant which are described as breaches of the provider's "Service Agreement". 3. One of the communications extracted is a letter from the Executive Manager for the supported living provider to the First Appellant which refers to the First Appellant's alleged conduct in August 2023 and it states that the First Appellant is no longer permitted to enter the provider's site. 4. The letter of 29 January 2024 concludes by inviting the Appellants to comment upon or respond to the matters set out in the letter.

Respondent's Submissions

1. The Respondent's submissions identify the Appellants' application of 28 June 2023 as a proposal for formal access arrangements for the son on Monday, Tuesday and Wednesday evening. The submissions state that as at the date of the submissions, the Appellants' proposal remains under consideration. That position was confirmed at the hearing of the appeal.
2. Essentially the Respondent's submissions support the reasoning of the Tribunal at first instance. Specifically, the submission is made by the Respondent that the meaning of "decision" in s 6(1) of the ADR Act requires a decision-maker taking a positive step or actively refusing or rejecting a proposal, rather than there being an absence of action by a decision-maker. The mere fact that the Respondent has not yet made a decision on the proposal should not be conflated with the distinct concept of a refusal.
3. The Respondent further submitted that s 6(5) of the ADR Act which introduces the notion of a "deemed refusal" is not relevant because that provision only applies where a period of time is prescribed by which a decision is required to be made.
4. Insofar as the Appellants have contended that the absence of a decision by the Respondent constitutes the imposition of a condition or a restriction within the meaning of s 6(d) of the ADR Act (being a restriction upon the Appellants' ability to access the son) the Respondent submits as follows: 1. The Appellants have not identified a question of law and this contention does not raise a question of law. 2. This argument was not advanced by the Appellants at first instance and therefore the Appellants require the grant of leave to raise the argument for the first time on appeal.
5. The Respondent's submissions go on to state that it is not the case that in the absence of a decision by the Respondent that a particular person or persons have formal access to the son, that there is no ability for that person to access the son. Access has been made available on an informal basis.
6. The Respondent's submissions drew attention to an email from the Appellants to the Respondent dated 13 March 2024. In that email the Appellants confirmed their objection to the fact that the son has been moved from premises on the Central Coast to the site of the supported living provider in Sydney. They further complain about the fact that their proposal for access has been ignored. The Respondent submits that that email, together with other evidence appears to record that the Appellants' complaints regarding the imposition of a restriction on their access, was a decision made by the supported living provider following various breaches of the Terms of Service published by the provider. The Respondent submits that the decision by a "third party service provider" in respect of the operational application of its terms of service to a person other than a person under guardianship orders is a matter entirely separate to the exercise of Respondent's surrogate decision-making power in the exercise of the access function. The Respondent submits that even if it were to agree with the proposal and make a decision to give effect to the proposal it would have no effect upon the operation and the decision by the provider. The Respondent submits that it cannot overturn the provider's decision.
7. The Respondent's submissions then turn to the Appellants' submission that the Respondent is "legally obliged to act in the son's interests instantly when any of the general principles under s 4 of the Guardianship Act are breached". The Respondent describes this as a novel submission. The Respondent submits that the principles in s 4 of the Guardianship Act cannot be construed as evincing an express legislative intention to impose upon the Respondent the requirement to make a decision within a specified period for the purposes of s 6(5) of the ADR Act. Nor is s 4 framed in such a way as to give rise to a strict duty to act immediately if any one of the principles were breached.
8. In respect of the Appellants' contention that the Tribunal failed to give adequate reasons, the Respondent submits that the dispositive reasoning given by the Tribunal makes it abundantly clear as to the basis upon which the Tribunal found that it did not have jurisdiction.
9. The Respondent submits that the appeal should be dismissed.

Appellants' Submissions in Reply

1. The Appellants submit that their application for administrative review was not based solely on the Respondent failing to act or respond to the request for access made on 28 June 2023 alone. The Appellants submit that their application was also based on the "initial restrictive practice implemented by the Respondent denying (the son) access to the Appellants and the Appellants' access to [the son]". The Appellants contend that the Tribunal did not consider the initial decision to restrict access.
2. The Appellants' submissions make further reference to other legislation, but we are of the opinion that it is not necessary to refer to that other legislation in the context of this appeal.

One Further Matter

1. We note that, at the first instance, the Respondent submitted that even if the Tribunal were to find that there was an administratively reviewable decision by the Respondent the Tribunal would nevertheless not have jurisdiction. This is because s 53(1) of the ADR Act provides that if an administrator makes an administratively reviewable decision, an interested person may apply for an internal review of that decision. However, by virtue of s 55(3) of the ADR Act, if a person was entitled to seek internal review under s 53(1) of the ADR Act, no application may be made to the Tribunal until such time as the interested person has sought internal review and that internal review has concluded. In essence, the Respondent submitted that if the fact is that the Respondent has not yet made a decision could in any way be construed as an administratively reviewable decision, the remedy for the Appellants would be by way of an internal review, not an application to the Tribunal. It appears that the Appellants made an application for internal review by email dated 12 December 2023 (which appears to be after the date of receipt of the Respondent's submissions).

Consideration

1. The Decision turned on the meaning of "decision" in s 6 of the ADR Act. The Decision was based on the view that the definitions in s 6(1) require a decision-maker to take some "positive step" to make a determination or refuse to do so. The Tribunal held that there was no evidence that the Respondent had refused the Appellants' request for access and that there was no fact that could be described as a refusal. The Tribunal stated that "inaction" is not the same as refusal. The Tribunal noted that the Respondent "would deny that there has been inaction" but did not make a finding with respect to the Respondent's actions other than to find that there was no positive step taken.
2. We are of the view that the difficulty with the Tribunal's construction of the word "decision" as contained in s 6 is that where (as here) there is no statutory time required by which a decision is to be made (and therefore no engagement of s 6(5)), the result is, based upon the Tribunal's construction, that the decision maker appears to have an unlimited amount of time to take the step of making a decision (including a refusal). In the context of the proceedings with which the Appellants' application for access was concerned, this construction is, in our respectful view, erroneous.
3. For convenience, we set out the provisions of s 6: 6 Meaning of "decision" (1) General meaning A "decision" includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it. (4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested. (5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.
4. The context which is relevant is the following: 1. The Respondent is the guardian of the son and has the power to make decisions for the welfare of the son including his access to others. 2. Section 4 of the Guardianship Act describes the duties of those exercising functions under the Guardianship Act 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. 1. Section 4 specifically refers to the importance of preserving family relationships. 2. It is necessary to interpret legislation in the manner required by s 33 of the Interpretation Act 1987 (NSW). That section provides as follows: 33 REGARD TO BE HAD TO PURPOSES OR OBJECTS OF ACTS AND STATUTORY RULES In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object.
5. It is our view that the Respondent having before it a request from the Appellants (who have a family relationship with the son) to have access to the son, has the duty to consider that application for access consistently with the Respondent's obligations under s 4. This must include having regard to the paramount consideration, namely the interests of the son. In our view the Respondent does not have an infinite amount of time to consider the access application but should be considered as having whatever time is reasonably required to consider the application having regard to the duties set out in s 4. The Appellants' application for access should be considered as an opportunity to provide to the son access to his father and stepmother. An examination of the facts and issues before the Respondent in its consideration of the Appellants' access application is required to be undertaken by the Tribunal in considering whether the omission by the Respondent to agree to, or to refuse, the Appellants' application might constitute a decision as that term is used in s 6.
6. The meaning of "decision" as used in s 6 was considered by the Court of Appeal in People with Disability Australia Incorporated v Minister for Disability Services & Anor [2011] NSWCA 253. Three paragraphs from the judgment of Beazley JA are of assistance in relation to the issues in this appeal. They are paragraphs 114, 116 and 118. They read as follows: [114] When the word "include" is used in a definition clause, it indicates that the meaning of the particular word is enlarged. In that case, the word when used in the statute must be construed to comprehend not only its ordinary meaning, but also the meaning or meanings specified in the definition. In that case, the word "includes" is a non-exhaustive word of enlargement. However, upon a proper construction of a definition clause, a word may be defined to include enumerated meanings, and only those meanings. In that case, the word "includes" is a word both of enlargement and exclusion and is an exhaustive definition. See YZ Finance Co Pty Ltd v Cummings [1964] HCA 12; 109 CLR 395, esp at 398-9; 401-2; and 405; BHP Billiton Iron Ore Pty Ltd v National Competition Council; BHP Billiton Iron Ore Pty Ltd v National Competition Council [2008] HCA 45. [116] The difficulty with the Appeal Panel's approach in this case is that it gave s 6(1)(g) a restrictive operation. There is nothing in s 6(1) which requires it to be so restricted. In the first place, the general meaning of "decision" is stated in s 6(1) to include six specified types of activity. Some of the paragraphs of the general meaning involve deliberative, conscious decisions, such as giving a direction (para (c)) and issuing, suspending, or revoking a licence (para (d)). Some paragraphs involve conduct: paras (f) and (g) specify decisions of this type. [118] Next, s 6(1)(g), as a matter of language, uses the participle "doing ... any ... act". That does not mean that the doing of the act must be ongoing. It could refer to an act that has occurred. Equally, it could refer, as a matter of ordinary language, to conduct that was ongoing. Section 8(2) recognises that jurisdiction may be conferred in respect of conduct which is ongoing: viz: "a reviewable decision includes a reference to an administrator engaging ... in the conduct". A consistent construction of the Act, as it relates to conduct, would indicate that s 6(1)(g) extends to conduct that is continuing, as well as conduct that is past.
7. The Decision was based on the view that simply because a decision had not been made there was no administrative decision to review. In our view, as stated above there were other considerations requiring consideration and determination.
8. These considerations included a consideration of evidence as to what steps the Respondent had taken in response to the Appellants' request. If the Respondent had not taken any steps after its request for further information in July 2023, it would have been open to the Tribunal to have considered whether the Respondent's apparent inaction constituted the doing of "any other act or thing" or the refusal "to do any other act or thing" and thus whether s 6(1)(g) was engaged.
9. The Tribunal did not find that the Respondent had in fact engaged in "inaction" but appeared to have taken the view that inaction is not the same as refusal. The difficulty with the Decision, in our respectful view, is that the Tribunal did not consider what the Respondent had done since July 2023. This omission was occasioned, in our view, by the Tribunal's view that the absence of a statutory timeline by which a decision must be made (and thus the fact that s 6(5) was not relevant to the proceedings) meant that the Respondent had an indefinite amount of time in which to consider the Appellants' access application. In our view, the Respondent did not have an indefinite amount of time. Rather the Respondent had whatever time was required to consider the application having regard to its duty to comply with the obligations set out in s 4 of the Guardianship Act. A finding of fact that the Respondent had not acted consistently with its obligations under s 4 might have constituted the doing of an act or thing as contemplated by s 6(1)(g). However, the Tribunal did not engage in a consideration of the facts for the purpose of considering whether s 6(1)(g) might be engaged.
10. Some indication of what the Respondent had done with the Appellants' request is contained in the letter of 29 January 2024 from the Respondent to the Appellants. As stated earlier, we understand that that letter was not before the Tribunal at first instance. Why that occurred was not explained to us. The failure to disclose that letter is perhaps understandable on the part of the Appellants (being lay persons) but less understandable on the part of the Respondent given the requirements of s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) (particularly s 36(3)). Section 36 provides: 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 in 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 co-operate 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 the Tribunal, (b) an Australian legal practitioner or other person who is representing a party in proceedings in the Tribunal. (4) In addition, the practice and procedure of the Tribunal should be implemented so as to facilitate the resolution of the issues between the parties in such a way that the cost to the parties and the Tribunal is proportionate to the importance and complexity of the subject-matter of the proceedings. (5) However, nothing in this section requires or permits the Tribunal to exercise any functions that are conferred or imposed on it under enabling legislation in a manner that is inconsistent with the objects or principles for which that legislation provides in relation to the exercise of those functions.
11. The letter of 29 January 2024 refers to three letters from an employee of the supported living provider to the Respondent dated 30 June 2023, 4 August 2023 and 18 August 2023. They appear to refer to allegations of misconduct by the First Appellant in relation to events at the provider's site. They are drawn to the attention of the Appellants so as to give the Appellants an opportunity to respond. Why there was such a delay (from August to January) is not apparent. Amongst the papers provided to us on appeal is an email dated 17 November 2023 from the Respondent to the Second Appellant. It states that the Respondent "continues to work towards formalising an Access decision". Shortly thereafter the Appellants lodged their application for administrative review with the Tribunal.
12. It is our view that the proper construction of the meaning of "decision" in s 6 was not undertaken by the Tribunal at first instance and that in circumstances where s 6(5) is not applicable, there is a requirement to consider whether the conduct or actions of the Respondent might meet the description of a decision as enlarged by the provisions of s 6 (1). In the circumstances of this case, it is possible that had such a consideration taken place, the Tribunal may have found that what occurred between July 2023 and November 2023 could be construed as a decision that was administratively reviewable. The problem is that no firm finding can be made in that regard because there was an apparent insufficiency of evidence to explain why the Respondent did nothing to put the allegations of misconduct by the First Appellant to the First Appellant until January 2024.
13. Thus, it is our view that an examination of what the Respondent did (including what the provider did) from July 2023 may have resulted in findings of fact that constitute the doing or refusing to do any other act or thing within the meaning of s 6(1)(g) of the ADR Act. In this case no such evidence was considered based upon the construction of s 6 which we respectfully think was in error.
14. Similarly, there was no consideration given to s 6(1)(d) which concerns the imposition of a condition or restriction. There appears to be evidence that the provider imposed some restrictions on the first Appellant as a result of his alleged conduct. Had those facts been before the Tribunal it may have resulted in a finding that a reviewable decision of the kind contemplated by s 6(1)(d) had occurred.
15. The proper construction of a statute constitutes a question of law for which there is an appeal as of right: s 80 of the NCAT Act.
16. Given our views about the proper construction of s 6 as expressed above, the appropriate order is to remit the application to the Tribunal for a rehearing and redetermination. Of course, this decision should not be taken to mean that there has been an administratively reviewable decision made by the Respondent. Rather, this decision is limited to the finding that because of the erroneous view the Tribunal took as to the meaning of "decision" the facts possibly leading to a finding that there had been an administratively reviewable decision were not properly considered.
17. We would encourage the parties to use the time which will now pass before the Appellants' application is reheard to investigate and to discuss whether a mutually acceptable access arrangement to the son can be agreed.
18. We make the following orders: 1. Appeal upheld. 2. The application of the Appellants is remitted to the Administrative and Equal Opportunity Division of the Tribunal for rehearing and redetermination.

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: 07 May 2024