ZFV & anor v ZFW & ors

Publication of names of the parties

1. The publication or broadcast of the name of any person who is mentioned or is otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: s 65(1) of the Civil & Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons for decision: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we have decided not to publish in these reasons any details that may identify the parties.
2. In these reasons, we will not refer to any party by name. We will use the pseudonyms, "ZFY", "ZFW", "ZFT", "ZFU" and "ZFX" to refer to the first appellant, the second appellant, the second respondent (the applicant in the initiating proceedings), the third respondent (the subject person) and the fourth respondent (the subject person's daughter).

Background to the appeal

1. For over two decades, the subject person lived in Port Macquarie, NSW under a social housing tenancy agreement with NSW Housing. In early 2016, the subject person's daughter, ZFX, came to live with her. ZFX claims to be her mother's carer.
2. ZFX alleges that on 5 June 2017 she was physically assaulted by her brother, ZFY, following a disagreement about the arrangements surrounding their mother's care and accommodation. She subsequently reported the alleged assault to police.
3. In documents filed in support of the Application, ZFT wrote that she decided to make the Application because of concern for her sister's "safety and well-being". She wrote that the appellants had apparently persuaded the subject person to move and live with them in Sydney. She asserted that her sister did not have the capacity to make that decision, or, if she did, was coerced by the appellants into making that decision. ZFT wrote that the proposed move to Sydney was likely to result in her sister losing the house she had been living for over two decades together with her entitlement to social housing. In addition, ZFT wrote that the foreshadowed move would result in her sister being removed from the medical care and support services she been receiving in Port Macquarie for a number of years, together with the care provided by her daughter, ZFX.
4. On 15 June 2017, as feared by ZFT, the subject person was taken from her home by the appellants to their home in Sydney. (In the appeal, the appellants claim they took this drastic step because of reports that ZFX was failing to properly care for the subject person, an allegation denied by ZFX.) On the same day, an NCAT staff member left a message for ZFT's solicitor advising that the Application was listed for hearing on 19 June 2017.
5. On the morning of the hearing, an NCAT staff member contacted ZFT's solicitor and requested contact details for the appellants and the subject person's two other sons. After taking urgent instructions, the solicitor supplied the mobile phone numbers for the second appellant, ZFW and other members of the subject person's family. Apparently, at the relevant time, the first appellant, one of the subject person's sons did not have a mobile phone.
6. NCAT's file of the Application reveals that neither the subject person nor the appellants were given written or oral notice of the hearing. In a pre-hearing report dated 15 June 2017, an NCAT staff member wrote that "[the subject person] and [ZFV] were unable to be located at this stage". The report does not disclose whether any attempts were made to locate or contact the subject person and the appellants prior to the date of the hearing.

Procedural fairness: the statutory framework

1. The Tribunal must observe the rules of natural justice: s 38(2) of the NCAT Act. Now generally referred to as the rules of procedural fairness, the rules require among other things that a person likely to be adversely affected by a decision be given notice and be heard before that decision is made. This element of procedural fairness, "the hearing rule" is reflected in s 38(5)(c) of the NCAT Act, which requires the Tribunal to take such measures as are reasonably practicable to "ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings".
2. Described by Brennan J in Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 612 as "chameleon-like", the content of the hearing rule is infinitely variable. As a minimum, it requires that a party or person, whose rights or interests is likely to be affected by a decision, is given adequate notice that a decision is to be made and is provided with the substance of the information on which that decision is to be based: ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 at [25]; ZAN v The Public Guardian [2016] NSWCATAP 20 at [29].
3. That requirement is contained in the Guardianship Act 1987 (NSW), which states: 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. (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.
4. 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.
5. 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].

What is the consequence of the Tribunal's failure to give the subject person notice of the hearing?

1. The subject person was a party to proceedings: s 3F(2)(b) of the Guardianship Act. Procedural fairness required that she be notified of the hearing and be provided with the substance of the information on which the Application was based.
2. While referred to in the pre-hearing report, the Tribunal made no reference in its reasons for decision (the Reasons), to the fact that the subject person had not been served with a hearing notice and a copy of the Application, as required by s 10(1A) of the Guardianship Act, or otherwise given notice of the hearing. The Reasons simply refer to the unsuccessful attempts made by the Tribunal to contact the subject person by telephone in the course of the hearing: Reasons at [5].
3. It can be inferred that ZFT and ZFX, who each attended the hearing, held the opinion that unless a guardianship order was made, the welfare of the subject person was at risk. The Reasons do not disclose whether the Tribunal shared this view. Nor do the Reasons disclose whether the Tribunal turned its mind to the question of whether the available evidence justified the Application being determined in circumstances where the subject person had not been notified of the hearing and her views in relation to the making of a guardianship order, were unknown.
4. But even if the Tribunal was satisfied that the risk posed to the subject person was real, material and imminent and it was therefore necessary for the hearing to proceed, those circumstances did not justify the decision made by the Tribunal to proceed to make a guardianship order for a term of 12 months. Other options were available to the Tribunal, including making a temporary guardianship order, or a reviewable guardianship order for a period of less than 12 months: ss 18(1)(a) and 18(2) of the Guardianship Act. Such approach would have the advantage of safeguarding the subject person's interests and welfare, while at the same time allowing the application to be determined at a later date after steps had been taken to notify the subject person of the Application to give her a reasonable opportunity to be heard.
5. We are satisfied that the subject person was denied procedural fairness.

What order should be made?

1. As noted by the Appeal Panel in ZAN at [45], a denial of procedural fairness ordinarily means that an erroneous decision has been made which should, pursuant to s 81 of the NCAT Act, be set aside or quashed, with the appeal allowed, save in rare circumstances, such as where the breach would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 at [28]; Warkworth Mining Limited v Bulga Milbrodale Progress Association Inc [2014] NSWCA 105 at [40] - [44].
2. On the available evidence, we could not be satisfied that the failure to afford procedural fairness would have made no difference to the decision the subject of the appeal. It is not possible to say what decision may have been reached had the subject person been notified of and given an opportunity to participate in the hearing of the Application. The subject person participated in the Appeal. While the parties held conflicting views about her ability to make and communicate decisions of significance affecting her, none suggested that she was incapable of expressing a view about whether a guardianship order should be made, and if such order were to be made, who should be appointed as guardian.
3. Accordingly, we have decided to remit the Application for redetermination. In addition, we have decided that the guardianship order made by the Tribunal should remain in place until such time as the application is re-determined. The appellants do not oppose this course.

Orders 1. The appeal against the decision made by the Tribunal on 19 June 2017 is allowed. 2. The decision under appeal is remitted to the Guardianship Division of NCAT for reconsideration. 3. The Appeal Panel orders under s 45(4)(c) of the Civil & Administrative Tribunal Act 2013 (NSW), that ZFU be separately represented in the proceedings before the Guardianship division of NCAT. In the interests of continuity, Legal Aid NSW is requested to appoint Michael Dampney, the separate representative for ZFU in the appeal. 4. The Appeal Panel orders under s 44(1) of the Civil & Administrative Tribunal Act that ZHS be joined as a party to proceedings. 5. ZHS is directed to provide within seven days, his contact details to the Registrar of the Guardianship Division of NCAT. 6. Any party wishing to rely on evidence (for example a statement, statutory declaration or medical report) in the hearing before the Tribunal, must give a copy of their evidence to the Tribunal and all other parties, no later than 10 days before the hearing. 7. The Registrar is requested to: 1. List the hearing for half a day in Port Macquarie. 2. Notify the appellants and ZHS of the hearing. 3. Provide a copy of these orders to Legal Aid NSW. 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: 12 February 2018