K v K

Judgment 1HIS HONOUR: This application concerns the protected person to whom I will refer as "F". F is 87 years old and resides in a nursing home at Parramatta pursuant to a decision about her residence made by the Public Guardian. The Public Guardian has been appointed as F's guardian pursuant to orders of the Guardianship Tribunal. The plaintiff is F's son. 2The plaintiff challenges orders made by the Tribunal on 16 March 2012. On that day the Tribunal appointed the Public Guardian as F's guardian for a period of three years to make decisions about her accommodation, health care, medical and dental treatment services she should receive, and those persons who should have access to her and in what circumstances. 3By summons filed on 23 October 2012 the plaintiff seeks the following relief: "1. The Supreme Court to overturn 'all' Guardianship orders over Mum ['F']. 2. The Supreme Court to stop the Guardianship Tribunal to have no further dealings with myself or Mum." 4The plaintiff, who is self represented, was not able to articulate the jurisdiction that he sought to invoke for those orders. 5Section 67 of the Guardianship Act 1987 (NSW) provides that a party to a proceeding before the Tribunal may appeal to the Supreme Court from any decision of the Tribunal from that proceeding as of right upon a question of law, or by leave of the Supreme Court on any other question. 6Section 8 of the Guardianship Act preserves the jurisdiction of the Supreme Court with respect to the guardianship of persons. For the reasons I gave in Re B [2011] NSWSC 1075, the parens patriae jurisdiction, if it is invoked, is to be exercised having regard to the right of appeal and the limits on the right of appeal provided for by s 67. Even if this application is to be considered as being brought in the Crown's parens patriae jurisdiction, the exercise of the jurisdiction is to be approached as if it were either an appeal on a question of law, if such a question could be identified, or an application for leave. 7Pursuant to s 67(2)(b), the time for the institution of an appeal from a decision of the Tribunal was 28 days after the date on which a written instrument setting out formal reasons for the decision were furnished to the plaintiff. The reasons for the Tribunal's decision were provided to the plaintiff under cover of a letter dated 24 April 2012 and I infer it was received shortly after that date. 8The summons was filed well outside that 28-day period, but pursuant to s 67(2)(c) the Court has power to extend the time. 9The requirement for leave is intended to provide a filter in respect of appeals on matters of fact. The requirement for leave reflects Parliament's intention that the Guardianship Tribunal should have the principal responsibility for determining questions of guardianship. In K v K [2000] NSWSC 1052, Young J, (as his Honour then was), said (at [14]) that the Guardianship Tribunal was "... a tribunal to which the legislature has committed the primary working out of the Guardianship Act and whose decisions are to be given great weight. When the Court does review a decision of the Tribunal, it does, as Lord Denning said in Retarded Children's Aid Society v Day [1978] ICR 437, 443, deal with the matter broadly and fairly and does not interfere if the Tribunal members have directed themselves properly and fairly on the facts and have not gone wrong in law." His Honour said (at 15): "It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed." 10The authorities on the question of the approach to be taken to an application for leave were reviewed by Hallen AsJ (as his Honour then was) in EB v Guardianship Tribunal [2011] NSWSC 767 at [194]-[199]. Of particular relevance for present purposes are the observations in Slinko v Guardian and Administration Tribunal [2006] QSC 39; (2006) 2 Qd R 279 at [9]-[16], 280-281 (cited in EB v Guardianship and Administration Tribunal at [196]) that: "(a) It is clearly not intended that there be a re-hearing in the Supreme Court, on the facts, simply for the asking. ... (b) To warrant a grant a leave, an applicant must demonstrate an arguable case of error in a finding, central, and not merely peripheral, to the determination, such that it would be unjust to allow the finding to stand. ... (c) The suggested factual error, or errors, must rest in the adoption of a factual position beyond the realms of reasonableness, or one that is clearly mistaken. (d) The factual error, or errors, should be plainly and readily apparent. The Court ought not embark on a comprehensive re-examination of all of the evidence to identify the error or errors. It would subvert the legislative intent if, factual error being suggested, the court were to embark on a comprehensive re-examination of the facts of the case to exclude the possibility. ..." 11The plaintiff's application was supported by his affidavit dated 23 October 2012 which was accompanied by a bundle of documents which were to be considered as annexures to that affidavit. There is a history to these proceedings. The guardianship order in respect of F was made by the Guardianship Tribunal on 28 March 2011. The Public Guardian was appointed as F's guardian for a period of 12 months from that date. 12On 16 December 2011 those orders were set aside by the Administrative Decisions Tribunal and the matter was remitted to the Guardianship Tribunal to be heard and decided again with the hearing of further evidence if necessary (ADK v NSW Trustee and Guardian [2011] NSWADTAP 60). The guardianship order made on 28 March 2011 was not discharged at that time. In substance, the orders made in March 2011 continued until the further determination by the Guardianship Tribunal. 13The plaintiff had filed a summons on 22 December 2011 in this Court, that is, after the Administrative Decisions Tribunal's orders of 16 December 2011, in which he sought an order that "the Supreme Court remove the Public Guardian as [F's] guardian so that he could take [F] home where she wanted to be". 14I summarily dismissed that application on 22 February 2012 on the basis that it was inappropriate to seek to invoke the Court's inherent jurisdiction when the matter was to be before the Guardianship Tribunal in March. 15The plaintiff's summons filed on 23 October 2012 named only the Guardianship Tribunal as a defendant. It entered a submitting appearance. The process was defective in that it was clearly necessary for the Public Guardian and the other persons who were parties before the Guardianship Tribunal to have been also joined as defendants. The Registrar made an order for service of the summons and supporting affidavit on all such persons, and I was satisfied from the evidence the plaintiff gave, partly by affidavit and mostly orally today, that the persons who ought to have been joined as parties have been served with the application. No-one sought to be heard on the hearing of the application. I have made an order for the joinder of the affected persons as parties. 16The fact that no-one has appeared to oppose the orders sought is not by itself a justification for making the orders. I would need to be satisfied that the Tribunal either erred on a question of law in reaching its decision of 16 March 2011 or that I should give leave to the plaintiff to appeal on a question of fact. I sought to elucidate from the plaintiff what errors either of fact or of law he contended the Tribunal had made. As I understood his submissions, the plaintiff says that the Guardianship Tribunal relied on evidence which he and his mother did not have a proper opportunity to deal with; that is, that they were denied procedural fairness. 17In support of that submission the plaintiff referred to observations made by the Administrative Decisions Tribunal when it found that there were errors in the process of decision-making that led to the first decision of the Guardianship Tribunal in 2011. That did not indicate that there were any such errors in the process leading to the decision of 16 March 2012 and none was identified. There was no evidence of any such lack of procedural fairness. 18Secondly, the plaintiff submitted that the Guardianship Tribunal appointed the Public Guardian as F's guardian against F's wishes as well as his wishes. He said that the Tribunal failed to comply with s 14(2) of the Guardianship Act. That subsection provides that in considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to the views, if any, of, amongst others, the person or the person who has care of the person. There is no substance for that submission. The Tribunal did consider the views of both F and the plaintiff. 19Section 14 does not require the Tribunal to act in accordance with the views expressed by the protected person or a carer of the protected person, but to have regard to those views. 20The Tribunal in the reasons for its orders of 16 March clearly recognised that F as well as the plaintiff saw no need for the appointment of a guardian and considered that F's needs could be met by her being accommodated at home with the plaintiff. However, the Tribunal took the view that F had cognitive disabilities and high level physical needs that established that she was in need of assistance with all of her activities of everyday living and was unable to initiate most of them without assistance. The Tribunal observed that the plaintiff had adduced no professional assessment contrary to the medical evidence that was before the Tribunal as to F's need of a guardian and her capacity to make an assessment of her own needs. The Tribunal was not required to act in accordance with F's wishes. It was exercising a protective jurisdiction in F's interests. The exercise of that jurisdiction can require the Tribunal from time to time to act contrary to the expressed wishes of a person in order to provide the protection that the person needs. 21The plaintiff submitted that the Tribunal erred by allowing the substitution of an applicant as the applicant for the guardianship order. The original application was made by a Ms Anand. Ms Anand is a social worker. The Tribunal recorded that it was advised on 12 January 2012 that Ms Anand was no longer able to act as the applicant for guardianship. Instead, another social worker with the Westmead Aged Care Assessment Team became the substitute applicant. That social worker had assessed F and had provided a report to the Tribunal in relation to F's needs by letter received by the Tribunal on 13 July 2011. There was no error in the Tribunal's substituting the applicant for guardianship. An application for a guardianship order can be made to the Tribunal by, amongst others, any person who in the opinion of the Tribunal has a genuine concern for the welfare of the person (s 9(1)(d)). There is no basis for challenging the substituted applicant's standing. 22Then the plaintiff submitted that the Tribunal did not check anything. There was no evidence and nothing put in submissions which substantiated that complaint. 23It was also submitted for the plaintiff that the Tribunal failed to comply with s 15 of the Guardianship Act because an order appointing the Public Guardian should not be made in circumstances in which an order could be made appointing some other person as the guardian of F. (See W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at 223-230, [25] and [26]; and Re B at [66]-[69].) The plaintiff submitted that as F's carer he was a person who could be appointed as F's guardian and accordingly the Tribunal erred in appointing the Public Guardian. 24The Tribunal did not make that error. It recognised that it was not able to appoint the Public Guardian if there was a private person who could be appointed. It concluded that it would not be in F's interests to appoint the plaintiff as her guardian for the reasons it gave. 25The Tribunal said that: "In order for a guardian to make decisions in [F's] best interests he or she must be able to understand her needs and be able to give appropriate consideration and weight to (not necessarily to automatically go along with) the medical and professional opinions and recommendations relating to her condition, treatment and care. The evidence suggests that [the plaintiff] is not able to do this. He does not acknowledge his mother's physical frailties and disabilities. He thinks she can do things, e.g. walk to the shops or attend to her needs alone at home whilst he is away which she cannot, according to all of the medical and professional evidence, do. Mr Carroll has had to speak to him about bringing medication into the nursing home for his mother. His attitude to the medical professionals expressed at the hearing indicates that he is not able to engage in a proper and reasonable weighing of their opinions and recommendations, and to use this information to make decisions in his mother's best interests. For these reasons he is not able to exercise the decision-making functions which relate to her treatment and care, i.e. accommodation, medical and dental consent, health issues and services in accordance with the principles of the Act ..." 26I see no error of principle in that reasoning. The plaintiff did not adduce any evidence to show that the facts as found by the Tribunal in reaching that conclusion were erroneous. But in any event, leave would be required for there to be an appeal in relation to those findings of fact. Having regard to the principles on which leave to appeal on questions other than questions of law should be given, to which I have referred earlier in these reasons, I do not consider that leave should be given to review alleged errors of fact in the Tribunal's reasons for its decision. 27The plaintiff also alleged that there was a procedural unfairness or error on the part of the Tribunal because it accepted the submission of the lawyer who was appointed as the separate representative of F as to the period of the guardianship order, namely, three years. 28Although it is not clear, I think the plaintiff may have intended to challenge the right of the Tribunal to appoint a separate representative. It is clear that the Tribunal has that power (s 58(3)) and there is no reason to question the appropriateness of the exercise of that power. 29The Tribunal gave reasons as to why it accepted the submissions of F's separate representative that a guardianship order should extend for three years, which appear rational. In particular it accepted that F's disabilities are permanent and that it was not in her best interests that there be an automatic earlier review. 30Complaint was also made that at the hearing before the Tribunal material was submitted by F's separate representative three days later than the time directed. That was a frivolous complaint. In any event it was dealt with in the Tribunal's reasons. The Tribunal considered that no unfairness was occasioned by that delay. I see no reason to doubt the correctness of that conclusion. 31Towards the end of his submissions the plaintiff, who is self-represented, asked me to refer him to a pro bono solicitor or barrister to provide him with assistance in making this application. 32Rule 7.36 of the Uniform Civil Procedure Rules 2005 provides that if it is satisfied that it is in the interests of the administration of justice, the Court may, by order, refer a litigant to the Registrar for referral to a barrister or solicitor on the Pro Bono Panel for legal assistance. 33The Court may take into account the means of the litigant, the capacity of the litigant to obtain legal assistance outside the scheme, the nature and complexity of the proceedings and any other matter that the Court considers appropriate. 34I understood from what the plaintiff said that he has not had a previous referral, although he has apparently sought the assistance of a registrar to obtain pro bono assistance. 35I do not consider that the nature or complexity of the proceedings are such that a referral is warranted. It does not seem to me that even in the hands of a capable lawyer the plaintiff's application would stand any reasonable prospects of success. I also have regard to the policy reflected in s 67(2) of the Guardianship Act that this application should have been brought within 28 days of the plaintiff receiving the Tribunal's reasons, although there is, as I have said, power to extend time. 36A further reason why I would decline the referral is that I do not think that any barrister or solicitor should be subjected to the risk of allegations being made against him or her by the plaintiff if the plaintiff is dissatisfied with the outcome of a referral or the services provided by a barrister or solicitor on the Pro Bono Panel. 37The plaintiffs' affidavit was almost bereft of material evidence. But he made accusations in his affidavit that the social worker who was substituted as applicant had forged documents, that an officer of the Public Guardian had lied and had covered up her own corruption, that the Tribunal had paid off a lawyer who was appointed as the separate representative for F to tell the Tribunal what they wanted to hear, that the original applicant before the Tribunal had also lied and committed fraud to help the Tribunal to justify their decision, and that there has been political interference in this matter by the Attorney-General. 38No evidence was adduced to support any of those allegations. They are scandalous allegations. 39Pursuant to r 4.15, I order that paragraphs 5, 6, 7, 8 and the last two lines of paragraph 9 of the plaintiff's affidavit be struck out. 40For these reasons I order that the summons be dismissed. As there has been no appearance by any other party, it will be dismissed without costs. 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 February 2013