QBU [2018] NSWCATGD 33

Can the Tribunal conduct a hearing without notice to the person who is the subject of an application?

1. The Tribunal has a duty imposed on it under s 4(d) of the Guardianship Act 1987 (NSW) (the Act) to take into consideration the views of a person who is the subject of an application, and by s 14(2)(a)(i) of the Act to do so specifically when considering making a guardianship order.
2. Section 38(5) of the Civil and Administrative Tribunal 2013 (NSW) (the NCAT Act) provides as follows: 38 Procedure of Tribunal generally … (5) The Tribunal is to take such measures as are reasonably practicable: (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so-to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings.
3. Sections 10(1) and (1A) of the Act state: 10 Service of applications (1) The applicant for a guardianship order in respect of a person must, as soon as practicable after the application has been made, cause a copy of the application to be served on each party (other than the applicant) to the proceedings before the Tribunal in respect of the application. (1A) Before conducting a hearing into the application, the Tribunal must cause a notice specifying the date on which, and the time and place at which, the Tribunal will conduct the hearing to be served on each party to the proceedings.
4. However, despite the apparently mandatory nature of these sections, and particularly s 10(1A) of the Act, which directs the Tribunal as to service of notices of hearing in this division when a guardianship application is made, s 10(2) of the Act goes on to provide: 10 Service of applications … (2) Failure to serve a copy of an application, or a notice, in accordance with this section does not vitiate the decision of the Tribunal on the application.
5. Clearly, wherever reasonably practicable, the Act requires that a person whose interests may be affected by a decision be given formal notice of a hearing. This gives effect to longstanding common law rules as to procedural fairness and, in particular, what has become known as the 'hearing rule'.
6. Section 10(2) of the Act, however, specifically contemplates that there will be occasions where the Tribunal may fail to provide notice to a party and indicates that failure to do so is not a failure of the Tribunal to exercise its jurisdiction in accordance with the Act.
7. We must decide whether it is possible for the Tribunal to proceed, in any circumstance, to determine an application without notice to QBU. It is arguable that doing so is more than an issue of process but rather that is strikes at the heart of whether, in doing so, the Tribunal is exercising its jurisdiction under the Act.
8. This raises an issue of statutory interpretation in relation to the requirements of the Act and also consideration of whether the Tribunal can otherwise meet the requirements of the hearing rule which may be imputed into the conduct of its proceedings, beyond that which is contained in the Act or the NCAT Act themselves.

Interpretation of the relevant provisions of the Act and the NCAT Act

1. The process of statutory interpretation has been described succinctly by Bellew J in Favetti Bricklaying Pty Limited v Benedek and Anor [2017] NSWSC 417 at [74]: The principles to be applied to the task of statutory construction may be summarised as follows: (i) the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all of the provisions of the statute: Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at 381; [69] per McHugh, Gummow, Kirby and Hayne JJ; (ii) the task of statutory construction begins and ends with a consideration of the (statutory) text: Federal Commissioner of Taxation v Consolidated Media Holdings Limited (2012) 250 CLR 503; [2012] HCA 55 at [39] per French CJ, Hayne, Crennan, Bell and Gageler JJ; (iii) the text must not be read in isolation from the enactment of which it forms a part. To do so offends against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context: K. & S. Lake City Freighters Pty Limited v Gordon & Gotch Limited (1985) 157 CLR 309; [1985] HCA 48 at 315 per Mason J (as his Honour then was); (iv) accordingly, the meaning of the provision must be determined by reference to the language of the instrument when viewed as a whole: Project Blue Sky at 381; [69]; (v) a legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, such conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve the result which will best give effect to their purpose and language, while maintaining the unity of the provisions as a whole: Project Blue Sky at 382; [70]; (vi) legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself: Consolidated Media Holdings at [39]; (vii) it is preferable to adopt a construction of legislation that will avoid a consequence which appears irrational or unjust: Legal Services Board v Gillespie-Jones (2013) 249 CLR 493; [2013] HCA 35 at 509; [48] per French CJ, Hayne, Crennan and Kiefel JJ; (viii) it is also preferable to adopt a construction that will avoid an absurd outcome or consequences: Minister for Immigration and Citizenship v Szizo & Ors (2009) 238 CLR 627 [2009] HCA 37 at 640; [35] per French CJ, Gummow, Hayne, Crennan and Bell JJ.
2. As can be seen from the recitation above, not only does s 10(1A) of the Act require that the person who is the subject of an application be given notice of a hearing by the Tribunal but, thereafter, ss 4(d) and 14(2)(a)(i) of that Act require the Tribunal to take the views of the person into account.
3. Whilst s 35(2) of the NCAT Act reinforces that position, we are satisfied that the use of the words "such measures as are reasonably practicable" in that section add no more to our considerations than may be relevant to the general application of the hearing rule, which will be discussed below at [26].
4. Whilst ss 4(d) and 14(2)(a)(i) of the Act provide mandatory considerations, guiding the decision-making process of the Tribunal, they do not strictly require that a person who is the subject of an application have an opportunity to present those views themself to the Tribunal. Whilst that will, of course, be preferable, the Tribunal may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice: s 38(2) of the NCAT Act. It may, then, ascertain the views of a person who is the subject of the application in some circumstances through others.
5. It is the resolution of the apparent disparity between the effect of ss 10(1A) and 10(2) of the Act which is determinative in this regard.
6. The Tribunal's jurisdiction is essentially protective in nature. One of its primary aims is to protect people with a disability from neglect, abuse and exploitation: s 4(g) of the Act.
7. The Act contemplates that it will be applied in relation to persons with a broad range of disabilities and in wide ranging circumstances. The Tribunal may make temporary guardianship orders (s 16 of the Act) and also interim financial management orders, even where the Tribunal has insufficient evidence to be satisfied that a person is incapable of managing their financial affairs: s 25H of the Act. The Tribunal also deals with applications for consent to medical and dental treatment which, by necessity, often arises in circumstances where a person is unable to be given formal notice of a hearing due to the urgency of the treatment required.
8. Whilst we accept that s 10 of the Act applies only to applications for the appointment of a guardian, we are nonetheless satisfied that the inclusion of s 10(2) in the Act is intended to ensure that the Tribunal is not acting outside the scope of its jurisdiction where it proceeds to conduct a guardianship hearing or make orders without notice of the hearing being given.
9. The Tribunal must, in exercising any function, bear in mind that "the welfare and interests" of the subject person "should be given paramount consideration": s 4(a) of the Act.
10. On that basis, we interpret s 10(1A) of the Act as requiring written notice of the hearing to be given wherever practicable and are satisfied that s 10(2) of that Act allows the Tribunal to proceed even in the absence of having given such notice, subject to the common law rules of procedural fairness which apply. Any other interpretation would prevent the Tribunal making a guardianship order for a person with a disability who, for any reason, was unable to be served with or was avoiding service of an application, regardless of the gravamen of the risk to their person the application was intended to address.
11. We note that this interpretation is consistent with a decision of the Appeal Panel of this Tribunal in the matter of ZFV & anor v ZFW & ors [2018] NSWCATAP 44; [17]-[18], where it said: 17 Neither the NCAT Act nor the Guardianship Act expressly permit the Tribunal to relax the obligation to comply with the rules of procedural fairness, even in circumstances of apparent urgency. However, in our view, consistent with the approach taken by the Appeal Panels in ZAN v The Public Guardian at [32] and ZAG v NSW Trustee and Guardian at [28], where the Tribunal is satisfied that to delay determining an application made under the Guardianship Act, may put at risk the welfare and interests of the person the subject of that application, and that the risk posed is real, material and imminent, it may be permissible for the Tribunal to proceed to hear an application for orders under the Act, notwithstanding that the subject person, or another party to the proceedings, has not been given notice of the hearing and/or a copy of the initiating application. In reaching that conclusion we note the protective nature of the jurisdiction conferred by the Guardianship Act, together with the requirement that in exercising the powers conferred by that Act, the Tribunal must have regard to the principles that the welfare and interests of persons who have disabilities should be given paramount consideration and they must be protected from neglect, abuse and exploitation: ss 4(a), 4(g) of the Guardianship Act. 18 As noted by H Woolf, J Jowell, and A Le Sueur, De Smith's Judicial Review, (Sweet & Maxwell Ltd, 6th ed, 2007) at 453, even where not expressly permitted by statute, the authorities accept that necessity or other strong reason, may in certain circumstances warrant relaxing the requirements of procedural fairness. See, also, M Aronson and M Groves, Judicial Review of Administrative Action, (Lawbook Co, 5th ed, 2013) at 518, Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396 at 444; BP Australia Limited v Brown & Ors [2003] NSWCA 216 at [134]; Re Marine Hull Liability Insurance Company Limited v Hurford and the Insurance Commissioner [1985] FCA 406 at [15]-[20].
12. The hearing rule is not applied inflexibly under the common law. It is well settled that this aspect of procedural fairness must be applied in a way which is "appropriate and adapted to the circumstances of the particular case": Kioa v West [1985] CLR 550 at 585. Later in that paragraph, Mason J, as his honour then was, went on to say, in part, that: The critical question in most cases is not whether the principles of natural justice apply. It is: what does the duty to act fairly require in the circumstances of the particular case?
13. The potential urgency of the need for an order was one aspect of the matter we needed to consider: Bakewell v Macpherson (Supreme Court (SA) (Full Ct), 25 September 1992, unrep, at 21-22.) We also needed to weigh the serious nature of the risk to QBU which was alleged. Finally, we note that this is not a Tribunal which is determining a dispute between parties. Rather, it is determining whether a guardianship order, which may be of very short duration, should be made, whilst ensuring that the welfare and interests of QBU are the paramount consideration.
14. In determining whether to proceed to hearing, then, we had to determine whether the prejudice to QBU's interests by not having notice of the hearing may be outweighed by the need to ensure that he was protected from harm and that his welfare and interests were held paramount.
15. We were satisfied that the evidence provided to the Tribunal in support of the application for the appointment of a guardian established sufficient grounds for us to conduct a hearing and consider whether to make a guardianship order without notice to QBU.
16. We proceeded to conduct a hearing by telephone with the available witnesses.

What did the Tribunal have to decide?

1. Every person who is the subject of an application is presumed to have capacity to make their own decisions, until the Tribunal receives sufficient evidence to rebut that presumption.
2. The threshold issue for the Tribunal, once an application has been properly made, is whether there is relevant incapacity of the person who is the subject of the application to manage their person.
3. Even if this threshold issue is established, the Tribunal has discretion about whether to make orders. The Tribunal considers all relevant factors. The welfare and interests of QBU are the Tribunal's paramount consideration.
4. The questions which had to be decided by the Tribunal in relation to guardianship were:

• Is QBU someone for whom the Tribunal could make an order because he has a disability which restricts him in one or more major life activities to the extent that he requires supervision or social habilitation and is at least partially incapable of managing his person?
• To use more contemporary English for the benefit of the parties and to narrow the enquiry to matters relevant to the evidence in this matter, we will describe this issue as follows: does QBU have a disability which causes impaired decision-making capacity for any important personal, health and lifestyle decisions, such that he needs supervision or assistance to function in society and has an inability to manage his person? (The making of important decisions which are likely to have a significant impact on QBU's person is, of course, a major life activity.)
• Should the Tribunal make a guardianship order and if so, what decision making functions should be given to the Guardian? The general principles recognise the importance of freedom of action, self-determination and independence, against which the Tribunal must balance protection from neglect, abuse and exploitation.
• The Tribunal considers all relevant factors, including those listed in s 14(2) of the Act before exercising its discretion. These relate to the views of QBU and any spouse or carer, preserving family relationships, preserving cultural and linguistic environments and the practicability of services being provided in the absence of a guardianship order. Where relevant evidence of particular weight about these issues was available to us, or where different factors needed to be balanced, it is referred to below.
• If an order is to be made; who should be the guardian? and
• How long should the order last?

Does QBU have a disability which causes impaired decision-making capacity for any important personal, health and lifestyle decisions, such that he needs supervision or assistance to function in society and has an inability to manage his person?

1. The hearing was conducted by telephone and attended by EZK, NQU and Ms Amanda Kent, from the office of the Public Guardian.
2. At the hearing, EZK confirmed the information he provided to the Tribunal prior to it deciding to conduct the hearing and referred to above.
3. NQU told the Tribunal that when QBU had been at home earlier in the night, he had fixated on having been told by EZK that he may die without appropriate treatment but that, whilst he wanted help, the only step he took was to ring a friend, who she could not name, to come and collect him.
4. QBU did not tell his wife where he was going and had not returned to the Hospital where his condition was being treated.
5. EZK also gave further evidence to the Tribunal that QBU had discharged himself after explaining to EZK that he did not wish to remain in hospital as he believed that the doctors were poisoning him with "special K". The doctor advised that none of the medications QBU was being treated with ought to have given rise to the belief in QBU's mind that he was treated with any such drug.
6. The doctor also stated that QBU said that it was not just his doctors but "the government" who was trying to poison him. QBU had told EZK that he was willing to go to a private hospital on that basis but could not afford to do so.
7. EZK had consulted with a psychiatric registrar who had informed him that, since QBU had no history of diagnosed mental illness, there was no cause for him to be scheduled as a disordered patient until the Mental Health Act 2007 (NSW). EZK had also contacted a consultant geriatrician, who he said confirmed his view that as a result of the matters raised above, QBU was suffering from delirium caused by his bacterial infection.
8. NQU did not dispute that QBU was unable to understand the nature and effect of important decisions that he may need to make. Her evidence was otherwise consistent with that of EZK.
9. We were satisfied that QBU has a disability, being delirium caused by bacteraemia, which is causing impaired decision-making capacity for any important personal, health and lifestyle decisions, such that he needs supervision or assistance to function in society and has an inability to manage his person.

Should the Tribunal make a guardianship order and if so, what decision making functions should be included in the order?

1. The risk to QBU's welfare and interests, should the Tribunal not proceed to make an order tonight, was clear. Given the evidence referred to above, we decided to proceed to consider making an order even in the absence of giving notice of the hearing to QBU and without him having an opportunity to be heard or respond to the matters which were alleged.
2. Ms Kent, from the Public Guardian's office, submitted in the circumstances that it would be appropriate for the Tribunal to make a guardianship order appointing the Public Guardian to make decisions for QBU about his accommodation, with the ability to authorise others to bring those decisions in to effect, to make health care decisions so that it may gather information about QBU's complex medical history, to give medical and dental consent on his behalf including the ability to override any objections to medical treatment and to make decisions about the services he may receive once any necessary urgent treatment had been administered.
3. NQU accepted the need for the appointment of a guardian for QBU with all of the functions identified by Ms Kent. EZK supported the making of the proposed order.
4. Based on the uncontroverted evidence above, which satisfied us that there is a real and significant danger to QBU's health and well-being that he is unlikely to be able to appreciate at this time, we were satisfied that that those orders were appropriate and made them accordingly.

Who should be the guardian?

1. NQU did not wish to be appointed as guardian. On that basis we appointed the Public Guardian.

How long should the order last?

1. Due to QBU's inability to participate in the hearing and the time critical way in which it was convened, we decided to make only a short order.
2. We decided to make an order for 30 days, because the decisions which are likely to be required will need to be made in the near future. As QBU's delirium should resolve with appropriate treatment, we decided that there was no need for the order to be reviewed at the end of its term.

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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: 04 February 2019