Kioa v West

[2014] NSWCATGD 25

NCAT Guardianship|2014-06-30|Before: Currie J, Williams P

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At a glance

Source facts

Court

NCAT Guardianship

Decision date

2014-06-30

Before

Currie J, Williams P

Catchwords

GUARDIANSHIP - requested review of guardianship order - end of term review of guardianship order - allegation of guardian's failure to communicate with family - order confirmed and renewed.

Source

Original judgment source is linked above.

Catchwords

GUARDIANSHIP - requested review of guardianship order - end of term review of guardianship order - allegation of guardian's failure to communicate with family - order confirmed and renewed.

Judgment (34 paragraphs)

[1]

What the Tribunal decided 1The Tribunal decided to refuse Mr NAS' application for summary dismissal of the applications and decided to summarily dismiss Mr NAS' application. 2The Tribunal decided to renew the guardianship order for Miss BBS made by the Guardianship Tribunal on 28 August 2012 and to make a continuing guardianship order for one year appointing the Public Guardian as the guardian for Miss BBS with the authority to decide what access she has to others and the conditions of that access. 3The Tribunal decided to confirm the appointment of Mr NAS as the financial manager of Miss BBS. 4In respect of both the guardianship and financial management orders the Tribunal decided to direct Mr NAS to provide within 21 days a written update to the Public Guardian, NSW Trustee and Guardian and Mrs LVS as to the current accommodation, services, care programs and care activities of Miss BBS and to provide further reports to those parties on those matters at intervals of approximately six weeks thereafter, until further direction or order of the Tribunal. 5The Tribunal decided to give the directions set out in Appendix B [Appendix removed for publication] in respect of the application for cost order and to order that the application be dealt with by the Tribunal on the papers.

[2]

Background 6Miss BBS is a 29-year-old woman who is currently living with her father Mr NAS at West Sydney. Miss BBS' mother, Mrs LVS is divorced from Mr NAS. Mrs LVS also lives at West Sydney. Miss BBS has two sisters, Ms NBX who lives at Regional NSW and Ms ECB who lives at Regional NSW. Miss BBS has been diagnosed with an intellectual disability. 7There have been numerous proceedings in the Guardianship Tribunal, the Administrative Decisions Tribunal ("ADT") and this Tribunal concerning Miss BBS. 8On 21 July 2009 the Guardianship Tribunal made a reviewable financial management order for Miss BBS appointing her father Mr NAS as her financial manager. This order was to be reviewed within two years. 9On 21 July 2009 the Guardianship Tribunal dismissed an application seeking the appointment of a guardian for Miss BBS. 10On 19 July 2010 the Guardianship Tribunal considered an application by Mrs LVS to review the financial management order made on 21 July 2009 and the Tribunal confirmed that financial management order. 11On 13 July 2011 the Guardianship Tribunal made a guardianship order for Miss BBS appointing the Public Guardian for a period of 12 months with the authority to make decisions about Miss BBS' access to others and the conditions of that access. 12On 13 July 2011 the Guardianship Tribunal varied the financial management order which had been made on 21 July 2009. It replaced Mr NAS as financial manager and committed management of Miss BBS' estate to NSW Trustee and Guardian. 13Mr NAS then appealed those orders referred to in (12) to the ADT. The ADT considered Mr NAS' appeal on 29 May 2012 and it ordered that the financial management order made on 13 July 2011 should be set aside. Accordingly, Mr NAS remained appointed as the financial manager of Miss BBS. 14On 4 July 2012 the Guardianship Tribunal made Directions Orders relating to the end of term statutory review of the guardianship order last made on 13 July 2011 and also in relation to its own motion review of the financial management order of 21 July 2009, as varied on 13 July 2011. These Directions Orders included an order that Miss BBS be separately represented, that Mrs LVS be joined as a party to all proceedings and that Mr NAS be legally represented. 15On 23 July 2012, the Tribunal determined not to review the financial management order of 21 July 2009 (that is, the order set out in (8) above). Accordingly Mr NAS remained as the appointed financial manager. 16On 28 August 2012 the Guardianship Tribunal reviewed the guardianship order dated 23 July 2012 and decided to renew that order. It again appointed the Public Guardian as the guardian of Miss BBS for a further two years with the function of making decisions about her access to others, and the terms of that access. 17On 1 March 2013 the Guardianship Tribunal received from Mrs LVS two applications. The first of these was an application to review the financial management order made in respect of Miss BBS so as to replace the current financial manager, Mr NAS. The second application was a request to review the guardianship order in respect of Miss BBS. This application requested that the order be varied to authorise the Public Guardian to make decisions in respect of Miss BBS' accommodation, health care and services, in addition to the existing function of making decisions about her access to others. 18On 17 March 2014 this Tribunal made Directions Orders. It ordered that Miss BBS be separately represented in all proceedings pending before the Tribunal and noted that Ms NQC, Barrister, would act as separate representative. The Tribunal also granted leave for Mr TPS, Solicitor, to represent Mr NAS in all proceedings pending before the Tribunal. The Tribunal also made directions in relation to the submission of evidence and requests for summonses. 19On 10 June 2014 the Tribunal made further Directions Orders. Firstly it declined to issue summonses which had been sought by Mr NAS, intended to adduce medical evidence as to Mrs LVS' mental health. Secondly the Tribunal directed each of the parties to provide details of any witnesses they intended to rely upon at the hearing scheduled for 30 June 2014. 20On 10 June 2014 the Tribunal also noted that Mr NAS would apply for the dismissal of the current applications before the Tribunal brought by Mrs LVS and would apply for an order that Mrs LVS pay his costs of the proceedings. Subsequently the Tribunal received applications to this effect on the letterhead and in the form required by the Administrative and Equal Opportunity Division of this Tribunal. In exercise of its discretions under the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal determined that it would accept those applications notwithstanding that they had not been made in the form required by the Guardianship Division of the Tribunal.

[13]

What is a "frivolous" or a "vexatious" proceeding for the purposes of section 55? 37There is no definition of "frivolous" or "vexatious" for the purposes of section 55 of the CAT Act within the Act itself or under any relevant subordinate legislation. We have been unable to locate any reported case authority on either of the terms which has emerged since the commencement of operation of the relevant parts of that Act on 1 January 2014. However, there has been considerable past judicial commentary on the terms. 38In the High Court decision in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, ("the General Steel Case"), the Chief Justice Sir Garfield Barwick summarised relevant authorities which indicate that caution should be exercised before dismissing any proceeding on the ground that it is frivolous or vexatious. He noted with approval the authorities which indicate that such a power is to be exercised sparingly and is not to be used except in a clear case where the relevant court or tribunal is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. His Honour went on to say: "(the) cases uniformly adhere to the view that the (applicant) ought not to be denied access to the customary tribunal which deals with actions of the kind (he or she) brings, unless (his or her) lack of a cause of action... is clearly demonstrated." 39His Honour also cited with approval the principle stated in the High Court case of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 ("the Dey Case") to the effect that a case for dismissal on the grounds that proceedings are frivolous or vexatious must be "very clear indeed" in order to justify the summary intervention of the relevant tribunal to prevent the applicant from presenting his or her case. As His Honour Justice Dixon (as he then was) said in that case: "...once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the (tribunal) to dismiss the action as frivolous and vexatious and an abuse of process." 40In the General Steel Case Barwick CJ also set out with approval various expressions which have been used to describe the concept of "frivolous" as including: "so obviously untenable that it cannot possibly succeed;" "manifestly groundless;" "so manifestly faulty that it does not admit of argument;" "a case which the (tribunal) is satisfied cannot succeed;" "under no possibility can there be a good cause of action;" and "(where it is) manifest that to allow (the application) to stand would involve useless expense." 41In relation to the term "vexatious", Barwick CJ in the General Steel Case also cited with approval the judgement of Latham J in the Dey Case which recognised that although a party (such as Mr NAS in this case): "... should be "saved from the vexation of the continuance of useless and futile proceedings", great care must be exercised to ensure that under the guise of achieving... finality, (an applicant) is not improperly deprived of (his or her) opportunity for the (determination of his or her application) by the appointed tribunal." 42In a more recent Federal Court Case, Hatchett v Bowater Tuff Industries Pty Ltd (No 2) (1991) 28 FCR 324 the Court was prepared to go so far as to say that the mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause, although in JF Keir Pty Ltd v Sparks [2008] FCA 611 at [62], the Federal Court stated the view that an application can be stayed as vexatious "if it can really lead to no possible good."

[14]

Issue estoppel 43Mr NGF submitted that the manner in which the issues and evidence were raised by Mrs LVS in her applications attracted the doctrine of issue estoppel. 44Essentially that doctrine involves a party being prohibited from raising an issue or adducing evidence relevant to that issue where a prior judgement or order necessarily established certain matters as the legal foundation or justification for its orders and in later proceedings a state of fact or law is alleged or denied, based on the very matters which had been decided by virtue of the prior judgement or order: see for example the description by His Honour Justice Dixon (as he then was), in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464. 45Mr NGF contended that there were no new facts and no new issues raised by Mrs LVS in her applications which would justify the reopening of the substantive decisions of the Guardianship Tribunal and its orders in relation to both guardianship and financial management. 46The problem with any reliance on the doctrine of issue estoppel is that a number of leading decisions in the Federal Court of Australia make it clear that its application must be read as subject to the statutory decision-making power entrusted by the legislature to the tribunal in question. As was confirmed in the case of Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649, issue estoppel cannot have any place in the proceedings of a tribunal to the extent that it is a rule of evidence where there is a statutory provision expressly excluding the rules of evidence from the considerations required by the particular tribunal. Subsection 38(2) of the CAT Act confirms and slightly varies the principle which applied prior to 1 January 2014 under section 55 of the Guardianship Act 1987. Sub-section 38(2) provides that this Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice (and also subject to particular requirements in civil penalty and enforcement proceedings, which are not relevant here). 47The Tribunal was satisfied that Mrs LVS is not prevented from bringing her applications by reason only operation of the doctrine of issue estoppel. It did not consider itself bound by the doctrine and in any case was satisfied on the facts of the matter, as dealt with more comprehensively below, that even if it had been bound by the doctrine, there was no issue estoppel.

[15]

Are Mrs LVS' applications frivolous? 48Mr NGF submitted that Mrs LVS' applications raised no new facts or issues which would justify a "reopening" of the matters before the Tribunal. In particular, we understood Mr NGF to be contending that Mrs LVS' applications reveal that she confuses or misunderstands the role which her former husband Mr NAS has as financial manager and the limitations on him to make decisions about Mrs LVS' access to Miss BBS. 49In Mr NGF's contention, the assertions in Mrs LVS' applications that Mr NAS is denying access cannot be valid and cannot raise any new issue. Mr NGF pointed out that questions of access and decisions to be made about access are matters for the Public Guardian as the appointed guardian of Miss BBS. Mr NGF also relied extensively on the statement made in the form of an affidavit by Mr NAS, sworn on 4 June 2014 which indicated Mr NAS' view of the current status regarding access arrangements for Miss BBS and the long history of various proceedings before the Guardianship Tribunal and the ADT. 50In reaching a decision on this preliminary issue the Tribunal considered both of Mrs LVS' applications and the evidence which had been made available in respect of each of them. 51In particular, the Tribunal considered the written report dated 16 June 2014 from the Office of the Public Guardian, commonly referred to as the Public Guardian's View, and gave that report considerable weight. The report indicates that since the Public Guardian was first appointed in 2011 its officers have experienced difficulties in contacting and obtaining meaningful information from several service providers assisting Miss BBS. The report demonstrates that service providers have been unable or reluctant to provide any information which the Public Guardian obviously needs in order to exercise its general obligations of supervision, and in particular its function of regulating Miss BBS' access to others and the terms of that access. The report indicates that service providers often direct the Public Guardian to speak to Mr NAS and reports that: "Mr NAS has historically been difficult to contact and attempts by the office to contact Mr NAS have been very limited during the current order." 52Essentially Mrs LVS' complaint is that she has inadequate access to her daughter Miss BBS. When that is coupled with the prima facie evidence from the Public Guardian that there has been difficulty in arranging such access because of communication difficulties with Mr NAS and with service providers, with whom he would be in contact, then we are satisfied that Mrs LVS' application cannot be regarded as "so obviously untenable that it cannot proceed," "manifestly groundless," or "so manifestly faulty that it does not admit of argument," to quote some of the formulations of the concept of a "frivolous" is cited above. 53Mrs LVS also filed with the Tribunal a number of written statements. These expand upon her general concern for Miss BBS' well-being and the adequacy of service provision, as well as the adequacy of the authorities granted to the Public Guardian. Again, without making any judgement on these matters it is clear to the Tribunal that Mrs LVS' evidence appears to raise matters which lead to a real question for determination by the Tribunal. 54The Tribunal was satisfied that it could not be regarded as fulfilling its statutory obligation under section 4 of the Guardianship Act to give the welfare in interests of Miss BBS paramount consideration and to consider the other matters required by section 4, nor could it comply with its general obligation under section 36 of the CAT Act, that is the "guiding principle" as explained on pages 12 and 13 below, if it is satisfied that there is a real issue before it but nevertheless makes finding that the relevant application is frivolous. 55In relation to Mrs LVS' application for review of the appointment of Mr NAS as financial manager it is more difficult to establish and identify a substantive issue for consideration by the Tribunal. There is some weight to Mr NGF's contention that Mrs LVS appears to have misunderstood to some extent the obligations of a financial manager is opposed to those the guardian. 56Nevertheless, and again without making any judgment on these matters at this stage, the Tribunal was satisfied that will that there are (at this stage, untested) contentions that there is a link between Mr NAS' financial decisions relating to Miss BBS' estate and the extent and terms of the service provision and care being made available for her generally. In her oral submissions to the Tribunal, Miss BBS' Separate Representative Ms NQC contended that there was some substance to the suggestion that there were issues relating to money and the payment for care and services which prevent or limit Mrs LVS in her access to her daughter Miss BBS. 57The Tribunal also took into account statements in section 9 of Mr NAS' affidavit of 2 June 2014 that he has been subjected to substantial stress and anxiety. It is clear that Mr NAS believes that this is caused by many factors but they include the obligations he has as financial manager. In the relevant section of his affidavit (the pages of which are unnumbered, but which is towards the end of section 9), he says: "...The mountain of paperwork, the keeping of receipts and preparing returns is onerous in its self. (sic.)Working full time, attending to [Miss BBS'] needs, liaising with various agencies and coming back to court time and time again is taking a strain on my health and my ability to provide much of my energy to [Miss BBS]." 58Again, we emphasise that with the benefit of a full hearing Mr NAS would have the opportunity to provide explanation and verification that notwithstanding these pressures he remains a suitable financial manager. However it is clear in the Tribunal's view that Mr NAS' statements as cited above indicate that Mrs LVS' applications and the material lodged in respect of them bring real issues to the Tribunal for decision, including issues relating to Mr NAS' continuing suitability as financial manager. 59In these circumstances the Tribunal could not be satisfied that either of Mrs LVS' applications is frivolous.

[21]

The views of Mrs LVS. 73Mrs LVS informed the Tribunal in her written submissions and in addressing the Tribunal at the hearing that she believed that her former husband Mr NAS had denied her access and had frustrated her attempts to exercise reasonable access to their daughter Miss BBS. She asserted that Mr NAS' attempts to do this demonstrated that he did not have Miss BBS' interests at heart, in that he did not recognise the importance of Miss BBS' access to her mother. 74Mrs LVS went further at the hearing. She asserted that prior to the Tribunal's directions hearing on 14 March 2014 she had had no idea of the times or places at which Miss BBS would be made available to have access to her. She asserted that the relevant service providers would not give her this information and that Mr NAS had not informed her of these details. The Tribunal was however unclear as to the efforts which Mrs LVS had made to obtain this information from the service providers or from Mr NAS. 75However in addressing the Tribunal Mrs LVS ultimately conceded that she agreed that there should be a continuing access function and that it should be exercised by an independent party, namely the Public Guardian. 76However Mrs LVS asserted strongly that there was a need for accommodation decisions in respect of her daughter Miss BBS to be made by a guardian and not left to Mr NAS. After further discussion it became clear that Mrs LVS sought the accommodation function for a guardian because of what she alleged were reasonably frequent changes of care facilities for Miss BBS. Mrs LVS also asserted that because of the uncertainty in her mind about whether Miss BBS was being properly cared for there was a need for her guardian to have the authority to make healthcare decisions on her behalf. 77The Tribunal also understood Mrs LVS to assert that medical and dental consents for Miss BBS and decisions about her services should not be left to Mr NAS but that these functions should also be given to the Public Guardian. Mrs LVS was unable to point to any independent source of verification for her assertions of a need for a guardian to intervene in relation to accommodation healthcare, medical and dental consent or services decisions.

[25]

The Tribunal's analysis and conclusions. 89The Tribunal accepted Mrs LVS' evidence and contentions as indicating that she had a genuine desire to see more of her daughter Miss BBS and, at least to some extent, that she was genuine in her attempt to vary the existing guardianship order to provide for additional functions for the Public Guardian. However the Tribunal did not feel that Mrs LVS' evidence was completely reliable. It was in some important instances incomplete; for example, there was no clear indication of how assiduously she had pressed her claim with service providers or with Mr NAS himself for more information about Miss BBS' availability for access to her. 90The Tribunal accepted that Mr NAS was genuine in his assertions that he wished to provide an appropriate degree of access to Miss BBS to his former wife Mrs LVS. However it was clear, particularly from the evidence of the Public Guardian and the more recent observations of the Separate Representative, that their dealings with Mr NAS and service providers had reflected a communication barrier to making appropriate access arrangements and decisions. 91The Tribunal was not persuaded that Mr NAS was, by virtue of this, in some way an unsuitable person to continue in his role as Miss BBS' financial manager or that he should not be permitted to make arrangements, as Miss BBS' carer, for her services and care. However it was clear to us that some appropriate communication protocol will need to be put in place and that can at least partially be achieved by the Tribunal issuing directions to Mr NAS as a party to both the substantive applications. 92It followed that Tribunal could not be satisfied on the basis of the evidence that there was a current need for decisions about Miss BBS' accommodation, health care or services to be made by a guardian. 93It followed that the guardianship order would be renewed. That is, the Public Guardian would continue to be appointed with authority to make decisions about what access Miss BBS has to others and the conditions of that access. The Tribunal came to the view that it would be appropriate for the order to be renewed for a period of 12 months rather than any longer period. In reaching this conclusion the Tribunal was motivated to ensure that a reasonably early review was available of the access arrangements and what would hopefully be improved communication between the principal parties in relation to all issues affecting the establishment of an appropriate ongoing regime for access. 94A direction would be made to Mr NAS in the following terms: [Mr NAS] is directed to provide within 21 days a written update to the Public Guardian, NSW Trustee and Guardian and [Mrs LVS] as to the current accommodation, services, care programs and care activities of [Miss BBS] and to provide further reports to those parties on those matters at intervals of approximately [six] weeks thereafter, until further direction or order of the Tribunal.

Kioa v West

At a glance

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Catchwords

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Judgment (34 paragraphs)

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Legislation Cited (2)

Cases Cited (11)