On 21 September 2023 we dismissed an appeal bought by the appellant (YCI) from a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT). We concluded that there had been a "want of prosecution in the proceedings" and exercised the discretion conferred by
s 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) to dismiss the appeal.
The appellant requested reasons for that decision under s 62(2) of the NCAT Act. These are the reasons in answer to that request.
[2]
Background to the decision under appeal
On 10 September 2022, the Tribunal made a four-week guardianship order under the Guardianship Act 1987 (NSW) in respect of the appellant (the September 2022 Order). The initiating application was made by a medical practitioner at St George Hospital, Sydney where the appellant had been taken by ambulance reporting chest and abdominal pain. The medical practitioner reported that the appellant:
1. was refusing medical treatment for a recent heart attack
2. was seeking to self-discharge against medical advice
3. since May 2022 had presented to hospital emergency departments on 22 occasions.
On 7 October 2022, the September 2022 Order was listed for an end-of-term review as required by s 25(2)(b) of the Guardianship Act. At the request of the appellant, the Tribunal adjourned that review to enable him to obtain further material from his general practitioner and granted his request to be represented by a solicitor, Mr Peter Livers. In addition, the Tribunal directed the Sydney Local Health District (SLHD) to provide, among other things, a report prepared by the appellant's treating psychiatrist about his diagnosis and ability to make informed decisions about his personal affairs.
On 1 November 2022, following review of the September 2022 Order, a differently constituted Tribunal renewed that order for a period of 12 months. In addition, following an application made by the SLHD, the Tribunal made a financial management order in respect of the appellant and committed the management of his estate to the NSW Trustee and Guardian.
The appellant was represented by Mr Livers in the review hearing and attended part of that hearing by telephone. At the time, he was an in-patient at Royal Prince Alfred Hospital (RPAH). The Tribunal refused a request made by Mr Livers to adjourn the review proceedings.
[3]
Background to appeal
On 2 December 2022, the appellant lodged a notice of appeal from the decision made by the Tribunal on 1 November 2022 to make guardianship and financial management orders (the November 2022 Orders). In that notice, among other things, the appellant contended that the Tribunal had failed to afford him procedural fairness by refusing his request for an adjournment.
At a directions hearing on 16 December 2022, the Appeal Panel (Principal Member Suthers) gave the appellant leave to be legally represented, set a timetable for the filing of submissions and material, and listed the appeal for hearing on 23 February 2023.
On 10 February 2023, Mr Livers wrote to NCAT requesting that the appeal be listed for further directions. On 16 February 2023, Mr Livers lodged an application with NCAT seeking the issue of a summons to the SLHD to produce the appellant's medical records for the period 1 August 2022 to date. That application was granted and the SLHD produced documents in answer to that request.
At the request of the appellant, at the directions hearing on 20 February 2023, Principal Member Suthers adjourned the hearing listed for 23 February 2023 to a date to be advised by the Registrar and revised the timetable for the filing of submissions and material.
On 24 February 2023, the Principal Member listed the appeal for hearing at John Maddison Tower, Sydney on 26 May 2023. In addition, the Principal Member made a series of directions for the filing of submissions to deal with an application made by the appellant to attend the appeal hearing in person. The appellant claimed that he was being detained at RPAH and that the NSW Public Guardian refused to permit him to leave the hospital. Apparently, the appellant did not want to attend the hearing remotely, by phone or audio video link. The Principal Member noted in the directions an alternative order would be to conduct the appeal hearing at RPAH.
At a further directions hearing held on 19 May 2023, at the request of the appellant, the Principal Member vacated the hearing of the appeal listed on 26 May 2023.
On 2 June 2023, the Principal Member listed the appeal for hearing on 21 September 2023 at RPAH and revised the timetable for the filing of submissions. It is unclear from the Tribunal's file whether the appellant consented to the appeal being heard at RPAH.
In an email sent to NCAT on 13 September 2023, the appellant said that he was dissatisfied with the quality of legal representation provided by Mr Livers and that he would be representing himself in future hearings but if "Mr Livers wants to stay on my case he was most welcome". The appellant requested that he be "allowed myself to appear on all sittings of tribunal". In that email, the appellant made several complaints about the Public Guardian and the treatment he had received while a patient at RPAH.
In an email sent to NCAT on 15 September 2023, Mr Livers said that he continued to act for the appellant. He advised that a complaint made by the appellant about injuries he had allegedly sustained while a patient at RPAH was under investigation. Mr Livers requested that the hearing of the appeal listed on 21 September 2023 "be relisted for two further mentions, to update the tribunal about the injuries and complaints, prior to a new hearing".
On 19 September 2023, the Appeal Panel (Deputy President Britton) refused the request for an adjournment made by Mr Livers and confirmed that the hearing would proceed on 21 September 2023 at RPAH.
On 20 September 2023 at 15:30 Mr Livers emailed the NCAT to advise that the appellant had withdrawn his instructions and would be self-represented at tomorrow's hearing.
The hearing was held in a training room at RPAH. At 10:25 am, ten minutes after the scheduled commencement of the appeal hearing a hospital social worker informed the Appeal Panel (Deputy President Britton, Principal Member Fougere and Senior Member Taylor) that she just met with the appellant who had said that he would not be attending the hearing. The social worker said that she had encouraged the appellant to attend to "tell his story". Deputy President Britton then met with the appellant in his room and encouraged him to attend. The appellant refused. The Deputy President requested the appellant to reconsider his position.
At 10:45 am, the hearing resumed and the Deputy President reported that she had met again with the appellant and encouraged him to attend. The appellant said that he would not be attending the hearing on that day or any other day. We then raised with the legal representatives for the SLHD, the only party to attend the hearing, the available options: to adjourn the hearing, to dispense with the requirement to hold a hearing and determine the appeal "on the papers" (NCAT Act, s 50(2)), or to dismiss the proceedings (NCAT Act, s 55(1)). Counsel for the SLHD submitted that it was a matter for the Appeal Panel. The hearing concluded at 10:50 am and we reserved our decision. In a notice issued to the parties on 22 September 2023, the Registrar informed the parties that we had dismissed the appeal for want of prosecution.
[4]
Power to dismiss proceedings
Section 55(1)(d) of the NCAT Act confers on the Tribunal (and the Appeal Panel) the power to dismiss at any stage any proceedings before it if the Tribunal considers that "there has been a want of prosecution of the proceedings".
The expression "want of prosecution" is not defined by the NCAT Act. Its meaning was considered by Deputy President Hennessy in Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282:
9. … The Tribunal's power to dismiss proceedings for want of prosecution is similar to the power in the Uniform Civil Procedure Rules 2005 (NSW), r 12.7 to dismiss proceedings if a plaintiff does not prosecute the proceedings with due despatch.
10. Historically, courts have been reluctant to dismiss proceedings unless there had been either an intentional and contumelious default on the part of the plaintiff or inordinate or inexcusable delay giving rise to a substantial risk that a fair trial would not be possible: Birkett v James [1978] AC 297at 318 cited in Green v Healthscope Ltd (t/as Hills Private Hospital) [2015] NSWCA 325 at [26]. The stringency of that principle has been diminished with the enactment of the "overriding purpose" in legislation: State of New South Wales v Plaintiff A [2012] NSWCA 248 at [17] (Basten JA). That purpose is "to facilitate the just, quick and cheap resolution of the real issues in the proceedings": Civil Procedure Act 2005 (NSW), s 56.
11. The "overriding purpose" in the Civil Procedure Act is identical to the "guiding principle" in s 36 of the NCAT Act. The scope of the Tribunal's power in s 55 (1)(d) must be determined in accordance with that principle and the general legislative context: Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [41]. There are no rigid rules. The Tribunal should undertake a "balancing exercise, in the course of which a variety of factors may be considered": Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]; Witten v Lombard Australia Ltd (1968) 88 WN (Pt 1) (NSW) 405 at 412. Relevant considerations include the length of the delay and associated costs, any explanation or excuse for the delay and any prejudice to the opposing party: Hoser v Hartcher [1999] NSWSC 527, per Simpson J at [19]-[30].
In concluding that there had been a want of prosecution we considered the following matters relevant:
1. The hearing of the appeal had been adjourned on two occasions at the request of the appellant.
2. The appellant had repeatedly failed to comply with directions to file and serve submissions in support of the appeal.
3. The only submissions provided by the appellant in support of the appeal canvassed several matters of no apparent relevance to the decision under appeal, including the appellant's treatment while a patient at RPAH and motor vehicle accidents in which he had been involved in 1997 and 2001. Filed on 2 August 2023, those submissions were prepared by Mr Livers.
4. The hearing of the appeal on 21 September 2023 had been listed at RPAH to enable the appellant to participate in person.
5. On the day of the hearing the appellant had made it clear that he had no intention of participating in the hearing.
A conclusion that there had been a "want of prosecution in the proceedings" is not determinative of whether the power to dismiss an appeal should be exercised. In our view, where, as here, an appellant has been diagnosed with a decision-making disability, a cautious and sparing approach should be taken to the exercise of the power to summarily dismiss proceedings without a hearing on the merits. (see, Reasons for Decision, 1 November 2022 at [23],[29].)
Weighing against the exercise of the power to dismiss the appeal is that it will terminate the appellant's entitlement to challenge the decision under appeal. Nonetheless, we decided that in this case the exercise of that power was warranted for these reasons:
1. The guardianship order, the subject of the appeal was made for a term of 12 months. The Tribunal is required to review that order at the expiration of that term: Guardianship Act, s 25(2)(b). The review of that order is listed for directions on 12 December 2023. The appellant is a party to that review.
2. The financial management order made on 1 November 2023 is for an indefinite term. The appellant has a right to seek review of that order at any time: Guardianship Act, s 25R(a).
3. A review of the material filed by the appellant to date indicates that he seeks to agitate many issues unrelated to the decision under appeal. In addition, that material fails to address the central contention raised in the Notice of Appeal that the Tribunal failed to afford the appellant procedural fairness. Nor does that material address the apparent suggestion that, by refusing to grant an adjournment, the Tribunal had made an error in the House v The King sense (see House v The King (1936) 55 CLR 499; [1936] HCA 40 at 504-505).
4. The procedural history outlined above suggests that there is a real and material risk that if the hearing were to be adjourned a third time the appellant would again fail to prosecute the appeal. We are not confident that if the appeal were to be adjourned the appellant would participate in the appeal, instruct Mr Livers or some other legal representative to represent him and /or provide submissions which address the purported errors of law made by the Tribunal.
5. Finally, the exercise of the discretion to dismiss the proceedings is consistent with the "guiding principle" that the Tribunal should facilitate the just, quick and cheap resolution of the real issues in the proceedings: NCAT Act, s 36(1). The appeal has now been on foot for over ten months. During that period, the SLHD has been put to the expense of attending numerous directions hearings and responding to interlocutory applications made by the appellant. In circumstances where there is no indication that the appellant's failure to prosecute the appeal is likely to be remedied, to permit the appeal to continue would result in the other parties and the Tribunal incurring additional costs.
[5]
Order
The appeal is dismissed pursuant to s 55(1)(d) of the Civil and Administrative Tribunal Act 2013 for want of prosecution
[6]
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: 03 November 2023