FX v The Public Guardian

NCAT Appeal Panel|2015-08-31

Background

This is an internal appeal from a decision of the Guardianship Division of the Tribunal made on 31 March 2015. The appeal arises out of an application made by the appellant, FX, seeking a review of guardianship orders pertaining to his mother, XO, the second respondent.
The appellant lodged a Notice of Appeal with the Tribunal, together with a number of attached documents including the order and the reasons for decision of the proceedings subject of the appeal, on 18 May 2015.
On 18 June 2015 directions were issued in the proceedings by an Appeal Panel constituted by J Redfern, PSM, Principal Member, directing that: The Appellant is to file and serve an outline of written arguments and material to be relied on by 30/07/2015. The Respondent is to file and serve an outline of written arguments and material to be relied on by 12/08/2015. The Appeal is listed for HEARING on 31/08/2015 at 10.15 am for half day.
On 24 June 2015 the following directions were issued in the proceedings by an Appeal Panel constituted by J Redfern, PSM, Principal Member, directing that: 1. A guardian ad litem is appointed for [XO]. 2. The Appellant is to file and serve an outline of written arguments and material to be relied on by 30/07/2015. 3. The Respondent is to file and serve an outline of written arguments and material to be relied on by 12/08/2015. 4. The Appeal is listed for HEARING on 31/08/2015 at 10.15 am for half day. 5. The issue of whether the Appeal Panel should: (a) give leave to appeal on grounds other than grounds which raise a question of law; and (b) give leave to rely on new material which was not before the Tribunal below is to be determined at the hearing of the appeal.
The appellant filed further submissions with the Tribunal together with attachments. The submissions were dated 28 July 2015 and were received by the Tribunal on 31 July 2015. The Tribunal received no submissions from the first respondent. On 28 August 2015 the Tribunal received correspondence from the second respondent. The correspondence advised, amongst other things, that the second respondent would not be making submissions nor intended to appear before the Tribunal in relation to the Appeal proceedings.

The decision at first instance

The appellant lodged with the Guardianship Division of the Tribunal an application for the review of the guardianship order that was made in respect of his mother, the first respondent, on 5 December 2014.
A hearing to determine the appellant's application was conducted on 31 March 2015. The Tribunal ultimately dismissed the appellant's application and confirmed the existing order made on 5 December 2014 appointing the second respondent as the first respondent's guardian.
In the Reasons for Decision for the orders of 31 March 2015, the Tribunal provided the following background information: [XO] is an 85 year old woman who is a permanent resident of the [Care Facility in Regional NSW]. Before moving into that facility [XO] lived with her son and carer, [FX], at a property at [Regional NSW] in which [XO] has a financial interest. [XO] also has daughter, [YP], who lives at [another Regional town in NSW]. It is reported that [FX] and [YP] have a long history of conflict. [XO] has been diagnosed with dementia, anxiety, colorectal cancer, heart disease, stress and other medical conditions. [XO] has been known to the Tribunal since 3 July 2001. An interim financial management order was made by the Tribunal on 17 August 2001 and was confirmed on 17 April 2002. The NSW Trustee and Guardian is [XO]'s financial manager. [XO] has been under guardianship since 16 November 2010. The guardianship order was last reviewed on 21 March 2014 and the Tribunal reappointed the Public Guardian for a period of 2 years with the functions of access, accommodation, health care and medical and dental consent. The Reasons for Decision from the Tribunal on that date note that 17 hearings had been conducted by the Tribunal in relation to [XO] by that point in time. Since the initial guardianship order was made by the Tribunal in 2010 [FX] has been proactive in seeking reviews by the former Administrative Decisions Tribunal ("ADT"), raising his concerns with Ministers, lodging complaints with the ombudsman, and requesting internal reviews in the Office of the Public Guardian
The Tribunal then recorded its understanding of the appellant's motivation in seeking a review of the guardianship order as follows: [FX] has requested that the Tribunal review the current guardianship order for [XO] because he considers that the order should be lapsed. [FX] wrote to the Tribunal that he sought the review in order to obtain current and accurate medical reports, which he believes may lead to further specialist medical treatment, particularly in relation to an ongoing eye condition. [FX] wrote that the order should be allowed to lapse so that he could continue as his mother's enduring guardian to ensure her safety and that her views are respected. [FX] also sought that the order be lapsed so that he could have access to his mother without the restrictions that may be imposed by the Public Guardian.
Section 25 of the Guardianship Act 1987 (NSW) (the Guardianship Act) provides that the Tribunal must review a guardianship order at the request of any person entitled to request a review, which includes, relevantly, any person who in the opinion of the Tribunal has a genuine concern for the person under guardianship (s 25B(d)). On reviewing an order, the Tribunal may vary, suspend or revoke or confirm the order (s 25C).
The Tribunal noted in the Reasons for Decision that at the time the current guardianship order was renewed by the Tribunal, the Tribunal had concluded that the first respondent was a "person in need of a guardian" and that there was "no new evidence before the Tribunal in relation to this issue." Accordingly, the Tribunal concluded that the first respondent remained a person for whom a guardianship order could be made.
The primary issue for determination before the Tribunal was whether or not the guardianship order should continue. The Reasons for Decision summarise the evidence that the Tribunal took account of in this regard and it ultimately made the following finding: The Tribunal was satisfied that there remains an ongoing need for decisions to be made for [XO] in the areas of accommodation, access, medical and dental treatment and health care. The Tribunal considered that there remains a need for the guardianship order to be in place.
Having determined that there was an ongoing need for a guardian to be appointed for the first respondent, the Tribunal then needed to turn its mind to whether the Public Guardian should continue to be appointed to that role or whether another appointment should be made. The Tribunal recorded the evidence and its reasoning on this point as follows: [FX] requested that the order be lapsed and that he be able to make decisions for his mother as her enduring guardian. He did not propose himself as guardian under the order. The Tribunal has previously determined that the Public Guardian is the most appropriate appointment as guardian for [XO]. The Tribunal heard evidence at this hearing, as it had at previous hearings, that [FX] has great difficulty in communicating with [XO]'s treating doctor and staff at the nursing home. The nursing home has attempted to engage with [FX] to enhance communication without much success. [FX] stated that his mother is not receiving the necessary health care, as he has said at previous hearings. There was no evidence to support [FX]'s contention. [FX] could not demonstrate to the Tribunal that he would be able to liaise with all the key people involved in [XO]'s care or with [XO]. He was unable to convince the Tribunal that he had sufficient insight into his mother's care needs and condition, and in particular, he lacked an understanding of [XO]'s phobia in respect of medical treatment and reviews. The Tribunal was not satisfied that [FX] would be able to exercise the functions of the order in accordance with the principles of section 4 of the Guardianship Act. The Tribunal, therefore, concluded that the Public Guardian should continue to be appointed.

Grounds of appeal and submissions

In the Notice of Appeal, lodged by FX with the Tribunal on 18 May 2015, he stated the following in respect of the orders challenged on appeal, the grounds of appeal, and any other orders the appeal panel should make: 11A. Orders challenged on appeal: We are applying to defer appeal on grounds to supply medical evidence. We apply under section 12B guidelines grounds for above procedure. 11B. Grounds of appeal: Over many years respondent accepts wrong medical reports and fails to acknowledge they had been furnished with medical report that required actioning. See my attached statement which all claims can be verified. 11C. Orders the NCAT Appeal Panel should make: Temporary access by former "enduring guardian" and support with dementia nurse (CD) to allow evaluation of my mother's condition accurately.
Section 12A of the Tribunal's Notice of Appeal, headed "Application for leave to appeal," advises that "Unless you are appealing a final or ancillary decision of the Tribunal only on a QUESTION OF LAW you require leave to appeal." The section then invites an appellant to indicate whether they are "asking for leave," and if so, invites them to list the reason why the Appeal Panel should grant such leave. The appellant did not complete any part of Section 12A on the Notice of Appeal lodged with the Tribunal.
Attached to the appellant's Notice of Appeal was correspondence, dated 13 May 2015, containing his submissions. He subsequently lodged further correspondence with the Tribunal, dated 28 July 2015. In the correspondence dated 28 July 2015 the appellant refers to attached further documentation and makes the following statement: My argument this is totally irresponsible behaviour by P.G. My mother well being has not been considered and fact is she remains upset about it and responsible nurses report it from the aged facility. Will the truth ever be allowed from these nurses. P.G. fails to even have a meeting at A.C.F with family members invited. P.G. acts totally out of their guidelines to simply persecute the long time carer. They have visited facility on more than one occasion without any notification to any family member. Noted Dr. Flemming professional letter you hold reports the relationship I hold with my elderly mother. P.G. has destroyed this for past four years. Please refer to guardianship original decision Jan. 2011- "With P.G. involved family relationship will be better preserved". Please tell me how it has??????????????
At the commencement of the hearing the appellant indicated that he would be seeking an adjournment of the proceedings so that he might obtain additional medical evidence relating to his mother, the first respondent. After seeking further clarification, the Appeal Panel concluded that the appellant did not in fact seek an adjournment of the appeal proceedings. Rather he was seeking the "lapsing" of the guardianship order, even perhaps only temporarily, so that he might then utilise the reinstated instrument appointing him as his mother's enduring guardian to obtain medical reports and alike which he believed would illustrate his concerns for the first respondent's medical and health care treatment and the role the Public Guardian has played in this to date. After the appellant confirmed that this was the reason he sought to appeal the decision of the Tribunal we determined to refuse his adjournment request and proceeded with his substantive application, namely his appeal of the decision of the Tribunal to dismiss his application and to confirm the orders made on 5 December 2014.
The appellant then went on to outline his grounds of appeal and his submissions supporting these. The appellant addressed the Appeal Panel for approximately half an hour, largely without interruption.
Much of what the appellant had to say related to his concerns about his mother's health and his inability to have her examined or re-examined by doctors to whom he had taken her, rather than the decision he was seeking to appeal. From what he said it was evident that the appellant found speaking of matters surrounding his mother very emotional, that he is of the view that his mother's condition has deteriorated since the guardianship orders have been in place, and that he should be permitted to continue as her enduring guardian.
The appellant has a poor opinion as to how the Public Guardian has performed the role as appointed guardian for his mother, in particular regarding medical and health care decisions. He also was of the view that the Public Guardian had used the powers of guardianship to prevent him from obtaining the evidence that he believed exists to prove that they had neglected his mother's health care.
The appellant was not represented in the proceedings. Accordingly, the Appeal Panel endeavoured to appropriately assist the appellant by seeking clarification as to the grounds of his appeal by enquiring of him as to what he believed was wrong about how the hearing occurred on 31 March 2015 and how he believed the Tribunal's orders were wrong.
The appellant answered the Appeal Panel's query by opining "the Tribunal simply got it wrong, they made the wrong decision." "I am appealing the fact that I have had guardianship (of my mother) taken away from me - it was unjustly taken from me."
After endeavouring to explain to the appellant the nature of appeal proceedings, he pointed to 2 issues that related to the hearing that is the subject of the appeal where he believed the Tribunal had erred.
First, he stated that CD, (described in the Tribunal's Reasons for Decision as a family friend of FX with a background as a mental health nurse specialising in dementia) wanted to be involved in the hearing to support his position but the Tribunal would not allow her to be joined as a party and that she had not been permitted to speak at the hearing. The Appeal Panel drew the appellant's attention to the Tribunal's Reasons for Decision which explained, in some detail, why the Tribunal had declined CD's request to be joined as a party, and also noted that the Tribunal recorded evidence it took from CD during the hearing which suggested she was permitted to speak and give evidence at the hearing. The appellant conceded, "CD did give some evidence."
Second, the appellant drew the Appeal Panel's attention to the statement in the Tribunal's Reasons for Decision that "(FX) requested that the order be lapsed and that he be able to make decisions for his mother as her enduring guardian. He did not propose himself as guardian under the order." The appellant submitted to the Appeal Panel that the suggestion that he did not propose himself as his mother's guardian was false. To support this he also drew the Appeal Panel's attention to the application for review he made to the Tribunal. In that application, in response to the question "Who do you propose as guardian?" it was stated "private person - myself/details to be provided by retired nurse in full" and additional remarks had been made that these comments related to the "lapsing period".

Consideration

The Civil and Administrative Tribunal Act 2013 ("the CAT Act") provides the basis upon which appeals from decisions of the Guardianship Division may arise under s 80. That section states that an appeal may be made as of right on any question of law or with leave of the Appeal Panel on any other grounds (s 80(2)(b)).
The Tribunal must apply the guiding principle when exercising functions under the CAT Act, which is to "facilitate the just, quick and cheap resolution of the real issues in the proceedings" (s 36(1)). This is reinforced by s 38(4) which provides that the Tribunal is required to act with "as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms."
The Notice of Appeal lodged with the Tribunal by the appellant did not raise any readily identifiable grounds of appeal amounting to a question of law. Further, the notice did not indicate that the appellant sought leave to appeal the decision of the Guardianship Division on grounds other than a question of law.
In George Papazachariou v Michael Antoun [2015] NSWCATAP 157 an Appeal Panel of the Tribunal explained the role of the Panel in relation to self-represented Appellants: The Appeal Panel is mindful that it may be difficult for self-represented appellants to clearly express their grounds of appeal or, even more challenging, identify a question of law. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided and the reasons of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal: Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69.
The Appeal Panel in this matter, being conscious of the appropriate leeway that should be afforded a self-represented appellant, provided the appellant with a liberal amount of time during the hearing to elaborate upon the contents of the Notice of Appeal and his other written submissions. The Appeal Panel subsequently endeavoured to assist the appellant to focus on the aspects of the hearing below he believed resulted in an error or injustice occurring.
There were 2 matters raised by the appellant which he believed caused the Tribunal below to be in error. First, he stated that a witness, CD, who supported his position, was not permitted to speak at the hearing. This may raise a question of law because there is an assertion that the Tribunal denied him procedural fairness during the hearing. However, the appellant subsequently conceded this was not correct and the Reasons for Decision bear this out. Accordingly, there was no error and this ground fails.
Secondly, the appellant submitted that it was "false" for the Tribunal to have reached the view that he did not seek to be appointed as his mother's appointed guardian, particularly in light of the contents of his completed application form seeking the review of guardianship. It is unclear whether this submission raises a question of law but in so far as the appellant requires leave to appeal on this ground, leave is refused.
The principles to be applied by an Appeal Panel in determining whether or not leave to appeal should be granted are well settled. In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of the Tribunal summarised those principles at [84]: 84. The general principles derived from these cases can be summarised as follows: (1) In order to be granted leave to appeal, the applicant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at or that there was a bona fide challenge to an issue of fact: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.
The second issue raised by the appellant was misconceived. It was evident from the completed application form that what the appellant was requesting was a "lapsing" of the Tribunal appointed guardianship order so that his appointment (or amended appointment with another person?) as his mother's enduring guardian may be reinstated. This reasoning confuses an appointment as a person's guardian pursuant to an order of the Court or the Tribunal under s 16 of the Guardianship Act as compared to an appointment as an enduring guardian under Part 2 of the Guardianship Act. The Reasons for Decision issued by the Tribunal clearly indicate that it was aware of the different forms of appointment as guardian available and as to what the appellant was seeking based upon his original application. The appellant was seeking continuation of his previous role pursuant to Part 2 of the Guardianship Act, not a role under s 16 of the Guardianship Act. The Tribunal appropriately considered the application made and the orders sought. There was nothing before the Appeal Panel to suggest that the Tribunal made a factual error that was unreasonably arrived at and clearly mistaken. Nor did the Tribunal go about the fact finding process in the proceedings in an unorthodox matter. There was no injustice disclosed and the appeal itself did not raise any issues of principle or questions of public importance or policy which might have general application.
The Appeal Panel determined there were no matters before it in which it was appropriate to grant leave to the appellant for the appeal.
The appellant was misguided in his understanding of what he could achieve through having lodged an appeal of the Tribunal decision of 31 March 2015. Much of what the appellant submitted to the Appeal Panel was focussed on the actions of the Public Guardian and how he believed the Public Guardian had made poor decisions regarding his mother's health care. He stated that he wanted an opportunity to obtain "fresh evidence" to put before the Appeal Panel to illustrate the poor decision making that had been engaged in by the Public Guardian. He was not content with the outcome of the hearing as it did not result in the reinstatement of his role as his mother's appointed enduring guardian.
In so far as the matters raised by the appellant related to decisions of the Public Guardian with which he did not agree, these decisions are not, nor can they be, the subject of this appeal.

Conclusion

For these reasons, the Appeal Panel refused leave to appeal and dismissed the appeal.

Stay

Whilst not pursued during the hearing before the Appeal Panel, it is noted that in the Notice of Appeal the appellant sought a stay of the orders made by the Tribunal on 31 March 2015. At the time of reserving its decision at the conclusion of the hearing on 31 August 2015 the Appeal Panel determined to dismiss the application for the stay on the basis the application was misconceived. The orders the subject of the appeal were to dismiss the appellant's application seeking a review of the guardianship order for his mother. As such, the effect of the Tribunal's orders were that the status quo remained, the Public Guardian remained appointed as guardian of XO. Accordingly, to grant a stay of the order under appeal would do no more than retain the original order, of 5 December 2015, that appointed the Public Guardian.

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

Amendments 06 October 2015 - Cover sheet - file number changed. 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: 06 October 2015

At a glance

Court

Decision date

Source

Judgment (8 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)