Re OMQ [2017] SACAT 8 (19 January 2017)

3. This matter is adjourned to 7 March 2017 at 9:30am for the internal review hearing. The questions of an extension of time to lodge the application and permission under section 64(c) of the Guardianship and Administration Act will be dealt with at that time.

Ms Anita Ewing, Crown Solicitor's Office for the Public Trustee

Ms Rozalyn Daniell, Crown Solicitor's Office for the Department of Health and Ageing

Procedure - Where applicant applies for internal review of a decision previously subject to internal review - functus officio

Acts Interpretation Act 1915 s 37

South Australian Civil and Administrative Tribunal Act 2013 ss 8, 39, 64, 83

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

Sloan v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429

This is an edited version of the Tribunal's statement of reasons issued pursuant to section 81 of the Guardianship & Administration Act 1993. The protected person has been de-identified and allocated a randomly selected pseudonym for privacy reasons. Other details that may lead to the identification of the protected person may have also been anonymised or omitted. These changes do not affect the Tribunal's decision or its reasons for decision.

1. This is an application made under section 70 of the South Australian Civil and Administrative Tribunal Act 2013 (SACAT Act) for internal review of an order made by the Tribunal on 2 August 2016 (matter number 2016/SC002872). The Tribunal appointed the Public Trustee as full administrator of the estate of OMQ. On 6 September 2016 OMQ lodged an application for internal review of the decision (first internal review application) (matter number 2016/SIR000124). A directions hearing was held on 25 October 2016 and a further directions hearing was held on 17 November 2016. On 17 November 2016 I dismissed the application for internal review under s 47(4) of the SACAT Act for want of prosecution.

2. OMQ did not attend either of the direction hearings but the Tribunal contacted him by telephone. He initially seemed unsure as to why we had done so and uninterested in the proceedings. His primary stated concern was that the fees charged by the Public Trustee were reducing his income. As I was concerned that his response was affected by his mental illness I encouraged OMQ to continue with his application and to engage a lawyer through the free legal aid scheme. I adjourned the first hearing so as to give him time to consider the matter and to obtain legal advice. However, at the second direction hearing he again said that he did not wish to pursue his application and simply wished to be left alone.

3. After I dismissed the application for internal review, OMQ obtained legal representation. A second application for internal review was lodged with the Tribunal on 7 December 2016.

4. The issue is whether the second application can proceed given that the first internal review application has been dismissed, the order sealed and the decision communicated to the parties. Ordinarily, after those steps have occurred, an applicant may only challenge an internal review decision by applying to the Supreme Court for permission to appeal under section 71 of the SACAT Act. Because the decision to dismiss the application was made by a judge, the application for permission and any appeal must be decided by the Full Court of the Supreme Court.

5. Mr Abarno indicated that he was instructed to proceed with the second internal review application. He emphasised that OMQ did not have representation in the first application.

6. Ms Ewing indicated that her client will abide the event. She also informed the Tribunal that because of OMQ's very limited assets, fees are no longer being charged for the administration of his estate.

7. Ms Daniell submitted that because the first internal review application was dismissed without the merits having being considered, OMQ was entitled to make a fresh application for internal review under section 64 of the Guardianship and Administration Act 1993.

Can the second application for internal review proceed?

8. While my ultimate conclusion could be stated with little elaboration, as this matter has not previously come before the Tribunal I have decided to canvass in some detail the various issues.

9. While OMQ could have simply applied under section 37 of the Guardianship and Administration Act 1993 for the administration order to be varied or revoked, he has not done so. I suspect that this approach has been adopted because the free legal aid scheme may not cover an application under section 37. Be that as it may, I must deal with the second internal review application that is before the Tribunal.

10. The threshold question is whether the Tribunal is functus officio, ie has it completed its task so that its powers in relation to the internal review sought by OMQ are exhausted. Before dealing with that question, I will first consider at some length the position if the functus officio principle applies.

11. I do not consider that in the present circumstances section 37 of the Acts Interpretation Act 1915 operates to displace the functus officio principle (if in fact the principle applies in a case where the merits have not been decided). That is because the SACAT Act manifests a clear contrary intention.

12. The scheme of the SACAT Act is that, subject to certain limited exceptions, an internal review decision is final and may only be challenged by seeking permission from the Supreme Court to appeal under section 71. This interpretation of the legislative scheme is consistent with the common law principle of finality in judicial (or quasi judicial) proceedings and involves the application of the functus officio principle. Thus, in the ordinary course I could only set aside the dismissal of OMQ's first application if I find a proper basis to do so under either the common law or the SACAT Act. I will canvass several possible approaches.

13. Section 83 confers power upon the Tribunal (and, where relevant, the Supreme Court) to cure irregularities that affect proceedings. It provides that where, in proceedings before the Tribunal, it appears to the Tribunal that some irregularity has occurred affecting the proceedings, and that it would be conducive to the expeditious resolution of the questions of substance in issue between the parties if the powers conferred by this section were to be exercised, the Tribunal may cure the irregularity by ordering that a requirement of the SACAT Act, or of any other Act or law, be dispensed with to the extent necessary for the purpose.

14. Section 83 is most commonly applied in tenancy matters where a landlord, agent or tenant has failed to give the notice required by statute before making an application to the Tribunal. It is not uncommon for members to dispense with strict compliance with a notice requirement if that is necessary to do justice between the parties and to resolve the substance of the dispute expeditiously.

15. Section 83 is clearly a remedial provision. Therefore, if possible, a broad reading should be adopted of the word "irregularity". While for the reason that appear below, I do not consider that any denial of procedural fairness has been established, the fact of the matter is that OMQ has been found by the Tribunal to be suffering from a mental incapacity and an administrator has been appointed to manage his affairs. The argument might be that, although I went to some lengths to encourage OMQ to continue with his application and to engage a lawyer through the free legal aid scheme, due to his mental illness he lacked capacity to participate properly in the hearing and to make decisions about his internal review application. Thus, there was arguably no effective hearing. It may therefore be arguable that my decision to dismiss his application constituted an "irregularity" and is sufficient to engage the discretion of the Tribunal under section 83. However, any such argument could only succeed if the medical evidence established that he lacked capacity to participate properly in the hearing and to make decisions about his internal review application. This is not necessarily the same question as that decided by the Tribunal prior to making the administration order (and also the Level 2 Community Treatment Order to which he is subject). In my experience persons who are subject to such orders are, at times, capable of presenting lucid and apparently rational arguments to the Tribunal.

16. Even if it were to be accepted that there were no proper hearing, given the particular nature of the power conferred by section 83, the further question is whether there is any relevant requirement of the SACAT Act or any other Act or law that may be dispensed with to the extent necessary to resolve the matter. There is no express provision in the SACAT Act that prohibits the Tribunal from reconsidering the dismissal of an internal review application. However, as I have already said, the clear scheme of the Act is that an internal review decision may only be challenged by seeking permission from the Supreme Court to appeal under section 71.

17. While the power granted by section 83 must be read broadly, on careful reflection, I do not consider that the discretion to depart from any relevant requirement of the SACAT Act or any other Act or law would extend to allowing reconsideration of an internal review decision as an alternative to pursuing an appeal to the Supreme Court. In my view, an "irregularity" in the context of section 83 means a failure to comply with a requirement of the SACAT Act or any other relevant Act or law. The remedy provided is an order granting dispensation from compliance. However, there is no legal requirement with which OMQ failed to comply. Thus, there is nothing to exempt him from. I therefore do not consider that section 83 is available.

18. Section 84 is entitled "Correcting mistakes" and operates in a similar fashion to, but perhaps more broadly than, the common law slip rule principle. None of the circumstances referred to in paragraphs (a) to (d) of section 84(1) exist in the present case. Thus, section 84 is not available.

19. Section 85 empowers the Tribunal to review a decision if a person was absent from the relevant hearing and was not represented. While OMQ was not represented at the two directions hearings, he did participate by telephone, albeit not very effectively. For that reason, I do not consider that the power to reopen the matter under section 85 is available.

20. There is a question as to whether the statutory directions about how the Tribunal is to conduct itself provide any assistance in resolving the issues. Section 8 of the SACAT Act requires, amongst other matters, that the Tribunal is to act with a minimum of technicality and to be flexible. Section 39 requires that the Tribunal must act according to equity, good conscience and the substantial merits without regard to legal technicalities. These provisions direct the Tribunal how to exercise its powers once its jurisdiction is engaged but do not operate to extend its jurisdiction. Whether the Tribunal can consider a further application for an internal review is a matter of jurisdiction rather than power. Thus, sections 8 and 39 do not provide a direct answer. However, they both indicate a general legislative intention. I will return to that point.

21. Ms Daniell suggested that the Tribunal can allow the application to proceed under section 64 of the SACAT Act which empowers the Tribunal to make conditional, alternative and ancillary orders. I do not consider that this provision is relevant to the present matter. Section 64 of the SACAT Act is directed at the terms in which orders may be expressed and not the substance of the Tribunal's jurisdiction and powers. There would be nothing conditional, alternative or ancillary, as those terms are usually understood, about an order that permitted the second internal review application to proceed.

22. While section 64 of the Guardianship and Administration Act is the source of the right to seek permission from SACAT for the internal review of the decision to make an administration order, it provides no assistance with the present matter.

Minister for Immigration and Multicultural Affairs -v- Bhardwaj [2002] HCA 11; (2002) 209 CLR 597

23. In Bhardwaj the High Court held that a tribunal had power to set aside its own decision if it acted outside its jurisdiction. The relevant tribunal had acted outside its jurisdiction by failing to accord procedural fairness to the applicant. In this case, OMQ did participate in both directions hearings (albeit because the Tribunal telephoned him) and I made my best endeavours to persuade him to continue with his application and to obtain legal advice.

24. I have already noted the possible contention that because of his mental incapacity OMQ was incapable of effectively representing himself at the directions hearing notwithstanding my efforts to conduct a fair hearing. If that contention were supported by relevant evidence, there may possibly have been a denial of procedural fairness. On the other hand, the Tribunal was left with no option but to dismiss the application because of his rejection of several suggestions that he make use of the free legal aid scheme and his repeated statements that he did not wish to pursue the internal review and just wanted to be left alone. In that light, and in the absence of relevant evidence, I do not think that the Bhardwaj principle is available to enable my decision to be set aside.

25. The preceding discussion has been premised on the assumption that the functus officio principle does apply. I now turn to consider whether that assumption is correct.

26. As I have already noted, Ms Daniell submitted that because I did not consider the merits of the first internal review application before I dismissed it, the Tribunal is not prevented by the functus officio principle from hearing the second application.

27. SACAT is a tribunal that exercises administrative power and is not a court (although in some areas of its jurisdiction SACAT does exercise judicial power, eg in deciding tenancy disputes that involve contractual rights). In Bhardwaj the High Court did not state as a matter of general principle that all administrative decisions are final and cannot be reconsidered. To the contrary, in that case Gleeson CJ stated at [8]:

The question is whether the statute pursuant to which the decision-maker was acting manifests an intention to permit or prohibit reconsideration in the circumstances that have arisen.

28. The views expressed by French J (as he then was) in Sloan -v- Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 414; (1992) 37 FCR 429 at 423 are also of much assistance. His Honour stated:

The implication into an express grant of statutory power of a power to reconsider its exercise would be capable, if not subject to limitation, of generating endless request for reconsideration on new material or changed circumstances...

Against the difficulties that may arise from the implication of a power to reconsider a decision there is the convenience and flexibility of a process by which a primary decision maker may be persuaded on appropriate and cogent material that a decision taken ought to be reopened without the necessity of invoking the full panoply of judicial or express statutory review procedures.

29. I have already expressed the firm view that upon the Tribunal deciding an application for internal review on the merits, the only avenue available to challenge that decision is to apply to the Supreme Court for permission to appeal. However, it is far less obvious that this principle also applies where the Tribunal has not decided an application on the merits.

30. It is clear from section 8 of the SACAT Act that the Tribunal has been established to provide a relatively informal, flexible and accessible means to decide disputes within its jurisdiction. It is required to be responsive to parties, especially those with special needs, keep costs involved to a minimum, to act with as little formality and technicality as possible, to be flexible in the way which it conducts its business and to adjust its procedures to best fit the circumstances of a particular case and the particular jurisdiction. I have already referred to the direction in section 39 that the Tribunal is to decide matters in accordance with equity, good conscience and the substantial merits without regard to legal technicalities and forms. While none of these statutory exhortations or directions operate directly to empower SACAT to reconsider an application, in my view they demonstrate a legislative intention that the Tribunal should not be regarded as having exhausted its powers when it dismisses an application without having considered its merits. The views expressed by French J (as he then was) reinforce that conclusion.

31. I therefore conclude that, in the particular and unusual circumstances of this case, the functus officio doctrine does not operate to prevent the Tribunal from considering OMQ's second application for internal review.

32. I stress that my decision turns on the particular and very unusual facts of this case. It must not be regarded as establishing any general principle that parties may pursue a second application for internal review. As I have said, in almost all cases, the only avenue to challenge an internal review decision would be an application to the Supreme Court under section 71 of the SACAT Act.

33. Section 64 of the Guardianship and Administration Act requires OMQ to obtain permission from the Tribunal for review of the making of the administration order. While I will hear the parties about that question, I note that the failure by OMQ to prosecute the first application is very likely to be the product of his mental illness (although I have no definite evidence of that). I also note that there is no suggestion that OMQ is engaging in the type of vexatious behaviour involving repeated applications about the same matter that often troubles courts and tribunals. He also requires an extension of time to pursue the matter.

34. Ms Daniell drew to the attention of the Tribunal the concern of her client about OMQ's circumstances. A notice of termination of a periodic tenancy has been served upon him under section 83 of the Residential Tenancies Act 1995. Vacant possession is required by 10 March 2017_._ That matter is not before me. Ms Daniell stated that OMQ has not been engaging with social workers or his treatment team. Efforts to engage OMQ so as to help him find alternative accommodation had been unsuccessful and there is a risk that he will become homeless. He is also not engaging with the treatment team in relation to his tobacco addiction. Ms Daniell reported that he is spending most of his money on cigarettes and is relying on hand outs from non-government organisations for food. She requested that if the matter proceeds to an internal review hearing I explain to OMQ the nature and effect of the administration order and why it was made.

35. In the directions hearings held on 25 October 2016 and 17 November 2016 I attempted to explain to OMQ why the administration order had been made and its effect. It seemed to me that due to his mental illness it was difficult for him to understand these issues. While I can only make orders within the jurisdiction of the Tribunal, if the matter proceeds to a hearing I will again attempt to explain the effect of the administration order to OMQ.