On 27 November 2023, the Applicant filed an application for administrative review of "the decision-making process and conduct" of the Respondent and certain representatives of the Respondent (the Application).
The Application does not clearly identify the decision(s) in respect of which administrative review is sought however, the documentation attached indicates that the Application was made in the context of the Public Guardian making decisions to change support service providers from Total Quality Disability Care Pty Ltd (TQDC) to a different service provider with respect to the person the subject of the guardianship order (Ms K).
The Applicant is the Employee.
The Respondent makes application to have the proceedings dismissed pursuant to s 55 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) on the basis that the Applicant does not have standing to bring the application pursuant to s 80A of the Guardianship Act 1987 (NSW) (Guardianship Act).
[2]
Background
By operation of a guardianship order reviewed on 21 July 2023, the Respondent was appointed as guardian for Ms K for 12 months with accommodation and services functions.
In this role, the Respondent has made decisions including:
1. Services decision made on 24 May 2023 consenting to "Approved by Frankie" to provide support coordination services to Ms K;
2. Accommodation decision on 11 October 2023 consenting to "Partner in Your Care" providing National Disability Insurance Scheme (NDIS) funded Supported Independent Living accommodation to Ms K;
3. Services decision made on 11 October 2023 consenting to "Partner in Your Care" providing Social and Community Participation Services to Ms K as funded through the NDIS.
Services previously provided by TQDC to Ms K were to cease from 29 November 2023 and to be replaced by the services described above from 4 December 2023.
On 23 October 2023, the Applicant emailed the Respondent and requested an internal review.
On 26 October 2023, the Respondent replied and declined the request for an internal review on the basis that TQDC was not an "interested party" for the purposes of ss 49 and 80A of the Guardianship Act and did not have standing to make such a request. In that letter, the Respondent affirmed that it was satisfied with the conduct of the person assigned as guardian.
On 17 November 2023, the Applicant on TQDC letterhead, wrote to the Respondent expressing his "deep concerns regarding the decision-making process and conduct" of a representative of the Respondent. The letter alleged a lack of "impartiality and objectivity" of behalf of the Respondent. Apart from a complaint about the Respondent not supporting higher funding (referred to as "1:1 funding") which, according to the letter, "appears to be driven by [the Respondent's] belief that [Ms K] should be placed in a group setting for social activities" there is no clear identification of the substance of the decisions or the time the decisions were purportedly made that are the subject of the complaint.
On 23 November 2023, the Respondent responded and affirmed that he was satisfied with the conduct of the assigned guardian which was in-line with the principles in the Guardianship Act.
On 27 November 2023, the Applicant made application for
1. a stay or interim order; and
2. administrative review in this Tribunal. Attached to that application was:
1. the letter from the Respondent dated 26 October 2023 described above;
2. the letter from the Applicant dated 17 November 2023 described above;
3. the letter from the Respondent dated 23 November 2023 described above;
4. an email from the "PG Stakeholder Engagement" service by which it is stated that "decisions of the Public Guardian can be reviewed by the Tribunal not the AAT" which was forwarded to the registry of this Tribunal on 29 November 2023.
On 30 November 2023, the proceedings were set down for directions. The stay application was set down for hearing on 12 December 2023 at 2pm with a timetable for the parties to exchange submissions. In the notation to the orders, Principal Member Simon notified the parties that in addition to dealing with the interim order application, the Applicant will need to identify the decision in respect of which he is seeking review and to demonstrate that the Tribunal has jurisdiction in respect of that matter.
In December 2023, the Applicant emailed to the Tribunal documents that purportedly showed the alleged bias of the Respondent's representative requesting that the Tribunal "investigate the conduct" of the Respondent's representative. While there are vague allegations of bias and complaints, there is no clear identification of the alleged decisions the subject of the administrative review and nor was there any submissions or evidence supporting that the Tribunal has jurisdiction.
On 8 December 2023, the Respondent filed its written submissions seeking to have the proceedings dismissed based on a lack of standing.
On 12 December 2023, the Applicant failed to appear at the hearing and the application was dismissed for want of an appearance.
Later that day, the Applicant emailed the Tribunal informing the Tribunal that he was experiencing "flu like symptoms" and asked that the proceedings be rescheduled. A letter from AYA Medical Centre was attached signed by a Dr Ziaul Haque dated 11 December 2023. The letter noted that the Applicant has presented with "fever, vomiting and nausea".
On 13 December 2023, the Applicant filed an application to reinstate the proceedings (the Reinstatement Application).
On 14 December 2023, the Respondent emailed the Tribunal resisting the Reinstatement Application taking issue with the form of the medical evidence but indicating that if the proceedings are reinstated, the Respondent presses its dismissal application.
On 31 January 2024, the Reinstatement Application was heard and the proceedings were reinstated. A timetable was set to allow the Applicant to respond to the dismissal application. Despite this opportunity, no further submissions or evidence were received from the Applicant.
By consent, the application was to be determined on the papers. In that regard, I am satisfied in the circumstances, that it is appropriate to deal with the application on the papers, as a hearing would amount to further unnecessary costs. I have made an order under s 50(1)(c) of the CAT Act.
[3]
Legislation
Pursuant to s 55 of the Administrative Decision Tribunal Act 1997 (NSW) (ADR Act), the Tribunal only has jurisdiction to review "an administratively reviewable decision". An administratively reviewable decision is defined in s 7 of the ADR Act to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction." Section 9 of the ADR Act provides that the Tribunal has administrative review jurisdiction over a decision "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act or any such decision."
Section 80A of the Guardianship Act make provision for administrative review by the Tribunal of decisions made by the Respondent relevantly, as follows:
(1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that -
(a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and
(b) is of a class of decision prescribed by the regulations for the purposes of this section.
(2) An application under this section may be made by -
(a) the person to whom the decision relates, or
(b) the spouse of the person, or
(c) the person who has the care of the person to whom the decision relates, or
(d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
For the purposes of s 80A(1)(b) of the Guardianship Act, clause 17 of the Guardianship Regulation 2010 (NSW) provides that all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under that Act as guardian are prescribed.
As expressed in s 80A of the Guardianship Act, an application to this Tribunal may only be made by a person that falls within subsection (2). The Applicant is not the person to whom the decision related (being Ms K) and nor is he the spouse of Ms K: Section 80A(2)(a) and (b). The Applicant also does not fall within s80A(2)(c) by virtue of s3D of the Guardianship Act which provides that such care must be otherwise than for remuneration:
3D Circumstances in which a person "has the care of another person"
(1) For the purposes of this Act, the circumstances in which a person is to be regarded as having the care of another person include (but are not limited to) the case where the person, otherwise than for remuneration (whether from the other person or any other source), on a regular basis -
(a) provides domestic services and support to the other person, or
(b) arranges for the other person to be provided with such services and support.
(2) A person who resides in an institution (such as a hospital, nursing home, group home, boarding-house or hostel) at which he or she is cared for by some other person is not, merely because of that fact, to be regarded as being in the care of that other person, and remains in the care of the person in whose care he or she was immediately before residing in the institution.
(3) In this section, remuneration does not include a carer's pension.
The remaining category of standing is s 80A(2)(d) being "any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision."
In interpretating s 80A(2)(d), Senior Member Blake AM SC in DMO v Public Guardian [2019] NSWCATAD 65 cited BJK v Public Guardian [2015] NSWCATAD 60 and noted:
The Guardianship Act is remedial or beneficial legislation and should be interpreted so as "to give the fullest relief which the fair meaning of its language will allow". In particular, it should be interpreted so as to facilitate the making of applications for review of the Public Guardian's decisions, if this is allowed by the "fair meaning" of s 80A: BJK v Public Guardian [2015] NSWCATAD 60 at [28].
In BJK v Public Guardian at [31] the Tribunal considered the meaning of "interests" in s 80A of the Guardianship Act:
[31] Consistently with the ways in which the terms "interest" and "interests" are used elsewhere in the Guardianship Act 1987, and with the beneficial and protective nature of the legislation, the word "interests" in s 80A(2)(d) is to be interpreted broadly. It extends to what might be termed personal or psychological interests in a person's welfare. This construction of the provision is consistent with the approach taken by the former Administrative Decisions Tribunal in IO v Public Guardian [2004] NSWADT 111 at [26]-[29]. In that case it was held that a daughter's "interest in preserving and strengthening her relationship with her mother" was adversely affected by a decision to relocate her mother, and that the daughter therefore had standing to make an application for a review of that decision under s 80A(2)(d) of the Guardianship Act 1987. [Emphasis added]
In BJK v Public Guardian at [32] the Tribunal held that the interests of the uncle of a 20-year-old man with Down Syndrome and autism were adversely affected the respondent's new decision that the man was to continue to live with the father. First, the decision meant that he would be unable to see or contact his nephew as frequently as he otherwise would be able to do. This would affect the closeness of his relationship to his nephew and his ability to have input into his nephew's development and welfare. Secondly, given that he perceived his nephew to be inadequately cared for by his father and that he cared deeply for the nephew and his sister, his interests in maintaining and promoting his sister's and nephew's wellbeing were adversely affected by the decision that the son reside with his father.
While the definition of "interest" must be interpretated to give its fullest relief, it is limited to being a "fair meaning" in the context of the legislation. As noted above, the Guardianship Act is remedial or beneficial legislation as reflected in the Guiding Principles in s 4. Section 4 provides, inter alia, that it is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe that the welfare and interests of such persons should be given paramount consideration.
In respect of the Applicant's "interest", the Applicant has not assisted the Tribunal with submissions as to how the Applicant has such an interest. With respect to the Respondent, the Respondent contends that the only conceivable way in which it could be suggested that the Applicant has been affected by way of the decision made, is in a financial sense.
I reject that the Applicant, as an Employee of the former services provider, has an "interest" for the purposes of s 80A(2)(d). I accept that to the extent that the Applicant has an interest it is most likely a financial interest given his role as a director of the former services provider but even that is not entirely clear. Even if the Applicant was the corporate entity (i.e. the former services provider), I accept the submissions of the Respondent that such a "financial interest" would be insufficient to fulfil s 80D(2)(d) and that in so far as it relates to that corporate entity, the decision was a commercial one. In those circumstances, an inherent conflict of interest arises as between that corporate entity's commercial interests and the Guiding Principles of the Guardianship Act - namely to promote the interests of the subject person: Unreported decision of Third Sector Australia Ltd t/a Momentum Collective v Public Guardian dated 24 October 2023.
To allow the Applicant to bring proceedings as an interested person under s 80A(2)(d) of the Guardianship Act would be an impermissible expansion of that section inconsistent with the purposes of that remedial and beneficial legislation.
I find that the Applicant does not have standing to bring this application for administrative review as he does not fall within any subsection of s 80A(2). The proceedings should be dismissed pursuant to s 55(1)(b) of the CAT Act because they are misconceived or lacking in substance. It follows therefore that the stay application must also be dismissed.
[4]
Orders
A hearing in relation to the application is dispensed with pursuant to s 50(1)(c) of the CAT Act.
The proceedings are dismissed.
[5]
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: 14 March 2024