FKS v Public Guardian

Scope and nature of appeals

1. An appeal to the Appeal Panel does not simply provide a losing party in the Tribunal below the opportunity to run their case again: Ryan v BKB Motor Vehicle Repairs Pty Ltd [2017] NSWCATAP 39 at [12].
2. To succeed in an appeal, the Appellant must demonstrate either an error on a question of law, which may be argued as of rights; or that permission (that is 'leave') to appeal should be granted to bring the appeal: see Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 80(2).
3. The Appeal Panel has a discretion whether to grant leave under s 80(2) of the NCAT Act. The principles governing an application for leave to appeal under the NCAT Act are well-established and are repeated in many decisions of the Appeal Panel, often quoting Collins v Urban [2014] NSWCATAP 17. They are the same principles applied by the Courts.
4. It is enough as a summary to refer to The Secretary, Department of Family and Community Services v Smith [2017] NSWCA 206 where the Court said at [28] (citations omitted): 28 Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted. Ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general public importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong.
5. In Cominos v Di Rico [2016] NSWCATAP 5 at [13], the Appeal Panel stated that it may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principles in s 36(1) of the NCAT Act, it is appropriate for the Appeal Panel to review the appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or basis for leave to appeal.

Application for adjournment

1. The Appellant at the commencement of the hearing sought an adjournment. The basis of the adjournment was to allow the Appellant time to obtain funds from his superannuation in order to fund a lawyer to argue his appeal.
2. Such application was opposed by the First and Second Respondents.
3. The original decision under review was made on 15 October 2021. The Decision appealed against was handed down on 25 August 2023. The Appellant has had since that date to arrange for any legal representation.
4. Both the First and Second Respondents have appeared at the hearing on 9 February 2024 and are ready to argue the matter.
5. Apart from generalised assertions that the Appellant felt overwhelmed by the issues raised in the decision to have the Appellant's mother accommodated at an aged-care facility rather than at her home and the complexities of the Decision under review, there was no other explanation for the failure of the Appellant to seek legal representation earlier.
6. It our view, this does not amount to a reasonable explanation for failing to have legal representation before the date of the hearing. Further, there is no evidence to support the ability of the Appellant to obtain sufficient funds for legal representation.
7. We further note that the application for adjournment has arisen after the date upon which the hearing date was set for this appeal.
8. In our view, an adjournment would not be conducive to resolving the issues in dispute on appeal in a just, quick and cheap manner.
9. For the above reasons we decided not to grant the Appellant's application for an adjournment.

An appeal commenced out of time

1. The appeal was not commenced within time.
2. The Decision was made on 25 August 2023. The Appellant accepted in his Notice of Appeal that the Decision was received on 25 August 2023. The Notice of Appeal was lodged on 23 October 2023.
3. Under Rule 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW), the time for filing a Notice of Appeal is 28 days from the date of receipt of the decision under appeal. Accordingly, the Notice of Appeal was lodged approximately one month out of time.
4. The Tribunal may extend the time for filing the Notice of Appeal pursuant to s 41 of the NCAT Act. The discretionary power to grant an extension of time under s 41 of the NCAT Act is unfettered but it must be exercised judicially and having regard, amongst other things, to s 36 of the Act and the need to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings'.
5. In Kelly v Szatow [2020] NSWSC 407 at [28] - [32], the Court summarised the principles that apply to an extension of time to appeal. Relevant considerations include the length of the delay and any associated reasons for such, the strength of the plaintiff's case and considerations of whether the defendants would be prejudiced by a granting of the application: see also Jackson v Land and Housing Corporation (NSW) [2014] NSWCATAP 22 at [22].
6. The Appellant bears the onus of demonstrating that strict compliance with the time frame would work an injustice: see Gallow v Dawson (1990) HCA 30; 93 ALR 479.
7. As mentioned above, the length of the delay was approximately one month and neither of the Respondents pointed to any particular specific prejudice that would flow from extending the time for the lodgement of the Notice of Appeal.
8. Accordingly, the two key aspects to consider are the reasons for the delay and the strength of the Appellant's case.

The reasons for the delay

1. In his Notice of Appeal, the Appellant set out extensive submissions on why an extension of time should be granted. The relevant points the Appellant makes can be summarised as follows: 1. It was only after reading the Decision 'many times' that the effect of the Decision 'sank in' and in particular the criticisms of the Appellant made in the Decision; 2. Whilst working on the appeal 'late into the 28-day time frame', the Appellant felt 'much more pressure' and got overwhelmed; 3. The Appellant had at the same time work to do on other submissions involving the Public Guardian; and 4. The Appellant was fatigued and strained having a number of kidney stones in both kidneys and 'CT scans' can be provided if required.
2. In our view, the above matters do not provide a reasonable explanation for a failure to lodge within time. In particular, we note that the Appellant was fully aware of the 28-day time period and was working on filing the appeal within time.
3. Absent medical evidence, we are not able to place much weight on the suggestion that some medical reason intervened to prevent the Appellant lodging some form of Notice of Appeal within time. Even if CT scans were provided this would not have assisted us absent a medical certificate explaining the effect on the Appellant.
4. Accordingly, we take into account the absence of a reasonable explanation in deciding whether to extend the time for the lodgement of the Notice of Appeal.

The audio and video files

1. The Appellant tendered at the hearing below six video files and three audio files of conversations between himself and his mother. They have been placed before us and we have carefully examined them.
2. The main point made by the Appellant on appeal is that the Tribunal failed to give sufficient weight to the content of those files. In particular, the Appellant submits that these audio and visual files are key evidence that should have persuaded the Tribunal that the Appellant's mother is upset or agitated at living away from home and wishes to live at home Further, the Tribunal should have found that the Appellant's mother has sufficient capacity to make that decision which in turn should have been given decisive weight.
3. The Appellant submits that on several occasions in these audio and visual files FJI says that she wants to go home and she does appear to be upset or agitated.
4. A further aspect of this intended ground of appeal is that the Appellant contends that it was wrong of the Tribunal to suggest that the Appellant was or may be prompting responses from his mother or that it was the Appellant's statements or comments which may have caused FJI to become agitated.
5. In our view, this does not raise a question of law and accordingly should the appeal be allowed to be filed out of time, leave to appeal would be required to pursue this ground of appeal.
6. The Tribunal dealt with the six short videos and three short phone recordings at [45] - [48] as follows: 45 FKS tendered six short videos and three short phone recordings of conversations he had with FJI that demonstrated that FJI was not happy to live at the aged-care facility and that her preference was to return home and be cared for by him. In November 2022, FKS made further submissions concerning the operation of those files. None of those submissions is relevant, the files received by the Tribunal worked adequately, and the sound and vision in the audio were synchronised. While preparing these reasons, the Tribunal reviewed these recordings and video footage further to ensure an accurate impression of that material. 46 The Public Guardian made the following submissions concerning the recordings submitted by FKS; (1) Save for one occasion, on 15 February 2022, it was not clear that FJI was aware of, or to the extent she could provide consent, gave consent to be recorded or filmed; (2) Each recording contained a common theme: to elicit a response that FJI did not want to live in the aged-care facility and that FKA had been responsible for placing FJI in the aged-care facility. The Tribunal notes it is well recognised that people suffering from cognitive impairment, such as those with dementia, are vulnerable to suggestion; (3) In seeking to elicit those responses, it was reasonably clear that FJI had been caused distress; (4) It needed to be clarified what had preceded the recordings to elicit the responses recorded. 47 I agree with those submissions; consequently, I do not assign significant weight to the recordings. 48 To the extent weight is given to them, the effect of the recordings on the Tribunal's consideration was two-fold: (1) Firstly, the video footage taken while FJI was a resident at the aged-care facility showed FJI near a neatly-made bed in a clean room painted in muted colours and free of obstacles, with her own en-suite toilet that she could (and once, did) readily access. Some footage shows the floor as a hard surface that looked clean and free of trip hazards and clutter. The room seemed neither overly bright nor dimly lit. Each of the six videos shows FJI as an elderly and slightly frail woman whose hair is tidy; she was wearing clean, modern clothing and footwear appropriate for warmth and comfort. In the footage, FJI appeared to be comfortable, clean and groomed. Accordingly, the Tribunal is satisfied that the physical care provided to FJI in the aged-care facility is reasonable and likely to promote her health and personal care. (2) Secondly, FKS can be heard prompting or leading FJI with statements such as "you don't look happy, Mum" (repeated twice) and saying things such as "[FKA], your daughter, put you there" or "I did not put you there, FKA and some government people put you there" and similar formulations; in response to which FJI can be seen becoming agitated and upset as she wrings her hands, or holds her head in her hands or appears almost to cry or become upset. When asked by the Tribunal why he repeatedly said things to FJI that effectively blamed FKA for placing her in the aged-care facility, even though that was a decision of the Public Guardian and even when FJI was clearly becoming agitated and distressed by those comments, FKS explained to the Tribunal that he said these things because "I didn't want her [meaning FJI] to think I had put her there". This answer, and the footage, which FKS thought would support his application, instead provided significant examples of how willing FKS was to cause his mother distress without regard for her welfare or happiness and led to the conclusion that FKS does not prioritise the welfare and interests of FJI in terms of her emotional and social well-being. Accordingly, it would not be suitable for FJI to be moved back home into the care of FKS.
7. The Appellant takes issue with the conclusions arrived at by the Tribunal in respect of the video recordings and the phone recordings.
8. The Tribunal agreed with the submission of the Public Guardian that a common theme in each recording was 'to elicit a response that FJI did not want to live in the aged-care facility and that FKA [FJI's daughter and the Second Respondent] had been responsible for placing FJI in the aged-care facility.' It is clear to us that this was a purpose behind the questions to FJI and the purpose of the recordings was to tender the responses to demonstrate FJI's desire to move back at home and not live in the aged-care facility.
9. We are unable to see any error on the part of the Tribunal in agreeing with this submission.
10. The Tribunal also agreed with the Public Guardian's submission that in seeking to elicit responses as to where FJI wanted to live, FJI has been caused distress.
11. On our review of the video and audio material, we are of the view that this conclusion was clearly open to the Tribunal. For example, we observed that in one short video recording of 13 seconds FKS states to FJI words to the effect of 'you don't look happy here, mum?' and 'You are not happy here, mum?' and visually after these questions FJI looks upset and puts her hand to her eyes and lowering her head.
12. Nextly, having viewed the videos and listened to the phone recordings, they are generally short and it is clear that the commencement of the conversation between the Appellant and FJI is not the start of the recording. Accordingly, the statement of the Tribunal that it agreed with the Public Guardian's submission that 'it needed to be clarified what had proceeded the recordings to elicit the responses recorded' is a fair conclusion and well open to the Tribunal.
13. Turning then to the conclusions reached by the Tribunal at [48(2)] as we have already stated above, we can confirm that each of the descriptions of what had occurred in the video or audio files are accurate and fair summations. Further, the conclusion by the Tribunal as a result of viewing the audio and video files were conclusions fairly open to the Tribunal.
14. Accordingly, in our view this ground of appeal has very poor prospects of success.

FJI's capacity to make her own decisions

1. The Appellant submits that the Tribunal ought to have found that FJI had the capacity to make her own decision as to where to live and that the statements made in the files put forward by FJI in the audio and video files tendered by the Appellant that she wanted to go home should have been given decisive weight.
2. Further, the Appellant submits that the Tribunal in not referring to and giving weight to evidence from Dementia Australia that people with dementia can have capacity to make their own decisions.
3. We note that in the video or audio files tendered they do include statements from FJI that she wanted to go home and that she agreed with the Appellant's statement that she was not happy in the aged-care facility.
4. In our view, this does not raise a question of law and accordingly should the appeal be allowed to be filed out of time, leave to appeal would be required to pursue this ground of appeal.
5. The Tribunal for the reasons given decided not to place much weight on these statements. For the reasons given below, such conclusion was reasonably open to the Tribunal on all the evidence before it.
6. In terms of capacity to make her own decisions, we note that there was a wealth of material as to the state of FJI's mental acuity and the severity of dementia that she was suffering from.
7. For example, there was evidence of several assessments of FJI and conclusions reached that she had 'severe' dementia, was suffering from anxiety, was unable to make logical decisions and required support to make any decisions and required support and supervision for all her daily activities: at [19], [20], [21], [22], [29], [31], [32].
8. Further, the Tribunal had evidence before it of interviews with FJI by video call by officers of the Public Guardian on 9 September 2021 and 5 October 2021, where FJI stated she liked being at the aged-care facility and that she did not wish to go back home: [43].
9. Accordingly, we see little merit in the submission that the Tribunal ought to have given decisive weight to responses of FJI in the audio or video conversations with the Appellant or the failure of the Tribunal to find that the FJI had clear capacity to make her own decisions as where she should live.
10. Accordingly, we are of the view that this ground of appeal has very poor prospects of success.

FJI's best interests would be served by her living at home

1. Whilst not a submission expressly made, it was clear that the Appellant is submitting that the Tribunal ought to have found that it was in the overall best interests of FJI to live at home with him and that he had the better ability to care for and look after FJI compared with her living at the aged-care facility on a permanent basis.
2. In this regard, the Appellant made submissions about how he properly cared for, fed and looked after FJI while she was living at home with the Appellant. The Tribunal summarised such submissions at [18(1)-(2)].
3. In our view, this does not raise a question of law and accordingly should the appeal be allowed to be filed out of time, leave to appeal would be required to pursue this ground of appeal.
4. In this regard, we note that the Tribunal came to a number of conclusions which the Appellant did not directly challenge.
5. This included, for example, the following: 1. FKS was struggling with his own health in addition to having to care for FJI and that this was impacting upon the quality of care afforded to FJI: [22]; 2. The Appellant had screamed at FJI to go back into her room and that he physically chased her away from the front door into the lounge room: [22]; 3. The Appellant suffers from anxiety, chronic fatigue and osteoarthritis and is on the Disability Support Pension: [23]; and 4. FJI was well cared for at the aged-care facility and had gained some weight and was very well settled in her new surroundings: [29] - [30].
6. The conclusion of the Tribunal was then stated at [49] - [54] as follows: 49 As a consequence of her dementia and anxiety, any change to FJI's accommodation is a matter to be considered with caution having regard to the risk that any such change or move will cause her to become further disorientated and distressed and may lead to a deterioration in her health and wellbeing. An example of how distressing it could be for FJI to leave the aged-care facility, even for a short appointment, was demonstrated by the Deputy Residential Services Manager's email to the Public Guardian in December 2021. The circumstances of that email were that FJI had refused to receive a second dose of a COVID-19 vaccine and had become "physically and verbally aggressive toward the doctor", attempting to administer the dose. It seems from the email that FKA had offered to take FJI to a private appointment outside the facility to obtain her second dose. In response to this, the Deputy Residential Services Manager stated that: [FJI] displays paranoia and is very distressed if taken out of her familiar environment which causes aggression. I believe the risk of aggression to [FKA] and her safety in a car would be high risk to receive her Covid vaccination. … 50 Further, if she were to return to her home, there would need to be evidence that this would not deleteriously affect her health and interests. FKS gave detailed evidence and made submissions that, in summary, he was ready, willing and able to continue caring for FJI in her home. He also stated that FJI's condition was no different at the time of the hearing than it had been when he returned home to care for her (which would be a period of more than two years from the date of the hearing). I do not accept this assertion; it conflicts directly with the report of Prof Potter and the observations of the home-care package provider, FKA and the staff at the aged-care facility. The Tribunal's observations of FKS at the hearing and FKS's submissions reflect the finding made by the Guardianship Division of this Tribunal that FKS; Appeared to lack insight into [FJI's] high support needs and disagreed with the written evidence that [FJI] requires assistance with all her activities of daily living. He would not seek the view of his sister before making any decision or take relevant information into account. 51 Despite supplementing his evidence in November 2022, FKS did not produce evidence, for example, a report of a geriatrician, that would inform the Tribunal that removal from her present accommodation back to home would not cause FJI distress or that, having regard to the course of her dementia, FJI would receive more suitable care if she were to return home. Conversely, there was significant evidence to conclude that it is in the interest of FJI that she stay in her present accommodation and that her social, personal and health needs were being met in the aged-care facility. 52 FKS's evidence and submissions were to the effect that he was willing to do anything to bring his mother home. The only circumstances in which FKS has contemplated FJI returning home is where he lives with her and undertakes the primary caring role. While that may be an understandable impulse of a dedicated son, it fails to account appropriately for the following: (1) his limitations arising from his health; and (2) the fact that a higher level of support will not be able to be assessed for an extended period. While FKS proposed that he top up the cost in the interim, he provided no evidence of his financial ability, as a long-term disability support benefit recipient, to do this; and (3) that FJI's condition will deteriorate over time; and (4) that the conflict that exists between FKS and FKA results in FKS being an isolated carer who cannot readily turn to FKA for additional support when needed nor assist in minor care-related decision-making; and (5) FKS's role as a live-in carer limits FJI from enjoying time with FKA, absent conflict and tension and (6) The Tribunal's conclusion that he would not be the appropriate person to provide day-to-day care for FJI. 53 Having regard to the principles set out in the Guardianship Act, s 4, the material before the Tribunal, and absent any reliable and recent evidence to the contrary, I have concluded that it is not in FJI's interest to be moved from her present accommodation and accordingly, it is not in the interests of FJI to be moved back to her original home. 54 Accordingly, the Public Guardian's decision notified on 15 October 2021 regarding the accommodation of FJI should be affirmed.
7. In our view it is plain that the conclusion reached by the Tribunal was well open on the evidence and leave to appeal to raise the submission and proposed grounds of appeal would be unlikely to be granted. Accordingly, in our view this ground of appeal has very poor prospects of success.
8. In conclusion, overall, we are of the clear view that the Appellant enjoys very poor prospects of success on his Notice of Appeal and the proposed grounds of appeal.
9. Accordingly, the Appeal Panel is of the view that leave to extend the time for the lodging of the Notice of the Appeal should be refused.

Disposition

1. The orders of the Appeal Panel are: 1. Application to extend time for the lodging of the Notice of Appeal is refused. 2. Appeal dismissed.

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: 22 February 2024