HER HONOUR: Before me, listed for hearing of two preliminary issues in these proceedings, is an application to extend the time for commencement of an appeal from a decision of the Appeal Panel of the New South Wales Civil and Administrative Tribunal (Tribunal) (Appeal Panel) made on 6 March 2018 and, if an extension of time is granted, for leave to appeal in relation to that decision. The proceedings in question are proceedings brought by the plaintiff (to whom I will refer in these written reasons as ZGB, consistently with the terminology of the Appeal Panel's decision). The defendants are the Public Guardian and ZGB's siblings (who I will call A and B).
The proceedings were commenced by summons in the Common Law Division of this Court. An amended summons was filed on 1 November 2018. On 21 July 2017 the Public Guardian was appointed as the guardian of the plaintiff's mother (to whom I will refer as ZGC). A financial management order has also been made in relation to ZGC.
In the amended summons, ZGB seeks to appeal from the whole of the decision of the Appeal Panel dismissing her appeal in relation to the appointment of the Public Guardian, and also from the decision in relation to the making of a financial management order. This application, the hearing before me today, relates only to the decision made by the Guardianship Appeal Panel, and reported in ZGB v ZGC [2018] NSWCATAP 58.
The relief sought in the amended summons, other than an extension of time from the "limitation time lapse" and an application for an order to release ZGC into ZGB's care, is predicated on there being an order made granting an extension of the time to commence the appeal and for leave to appeal. The relief sought, in effect, is the quashing of the guardianship and financial management orders that were made by the Tribunal and the making of a guardianship and financial management order in favour of ZGB.
The background to the issues before me can be summarised briefly by reference to the Appeal Panel's reasons and is not, as I understand it, in dispute, namely, that ZGC is an elderly woman; she was residing in a nursing home; and ZGB made an application for herself to be appointed as her mother's guardian. It was the decision of the Tribunal on 21 July 2017 not to accede to that application but, instead, to appoint the Public Guardian as the guardian for ZGC. That decision then came before the Appeal Panel. It was the Appeal Panel's decision to dismiss the appeal that is the subject of the application for leave for an extension of time and for leave to commence an appeal.
Procedurally, ZGB has taken me to the steps that she says took place after the Appeal Panel's decision on 6 March 2018. But before I come to that, I should note that under the Civil and Administrative Tribunal Act 2013 (NSW) (the Act), leave to appeal is required (pursuant to s 83(1) of the Act) for an appeal under s 82 of the Act, and any appeal is limited to a question of law. ZGB requires an extension of time for leave to appeal because, under r 50.3(1) of the Uniform Civil Procedure Rules 2005 (NSW) (the Rules), a summons commencing an appeal must be filed within 28 days after the material date, or within such time as allowed by the Court.
I will deal first with the extension of time to commence the appeal. In terms of timeframe, the decision of the Appeal Panel was made in March 2018 (final orders were published on 6 March 2018), and proceedings were commenced in this Court on 24 July 2018.
In Jingalong Pty Ltd v Todd [2014] NSWCA 330, the principles in relation to an extension of time for the commencement of an appeal were set out by McColl JA at [39] and [40]. For the purposes of the present application, what is relevant is to take into account: the length and reason for the delay in commencement of the appeal and whether ZGB has a fairly arguable case. (The Public Guardian properly concedes that this is not a case where it can point to any prejudice sustained as a result in delay in commencement of the appeal.)
As to the reason for the delay in commencement in filing of the summons in this Court, ZGB submitted as follows. ZGB says it took three months for her to be informed of the decision. I assume that that is a reference to the fact that the Appeal Panel proceedings were heard on 7 December 2017, but final orders were not made until 6 March 2018. ZGB says that it took one month for her to seek legal aid and one month in which she researched various authorities and decisions in relation to the making of her application.
ZGB said that she received the hearing notes from the Appeal Panel on 6 March 2018 and that, on 29 March 2018, she visited her mother and found that her mother was "drugged very badly and was wearing teeth that were too large for her". ZGB says that she wrote to the Aged Care Complaints Commission on 3 April 2018 as to her concerns in relation to her mother's condition; and that she had various other communications in relation to her mother's condition. She says that she wrote to higher authorities such as the Minister for Aged Care and the Attorney-General. She says that at this time she was also looking for a lawyer; however, she was not able to obtain an appointment with legal aid until 11 June 2018.
ZGB says she received some advice from legal aid as to the basis on which she might be able to appeal in relation to the decision, and that it was a 12 hour a day job preparing for this. She has spoken of her difficulties in dealing with the various authorities and registries, and to the timeframe taken whenever an application by her for waiver of fees was lodged. She says that by 11 July 2018, her summons was completed but that the waiver (or postponement) of fees was not until 24 July 2018; and that there was a lot of back and forth on 24 July 2018 when she received the notice of waiver and she filed her first notice of motion.
ZGB has explained that there were delays in delivering the summons, making contact with the Public Guardian and the like. ZGB referred to the return of the summons on 2 August 2018 when she says that Registrar Bradford in the Common Law Division made certain directions, and that she then filed an amended summons. On 3 October 2018, Beech-Jones J stood over the matter to 19 October 2018 and listed it for directions in the Equity Division.
As I have noted, on 29 November 2018, Registrar Walton in the Equity Division made various orders and listed for hearing today, as a preliminary issue, the question of leave to appeal, which necessarily must involve the question of an extension of time for leave to appeal.
ZGB says that she applied for a pro bono barrister in November 2018 but, by that stage, the Christmas period intervened and her application was not able to be heard until 31 January 2019. As it turns out, the application for referral for pro bono assistance under r 7.36 of the Rules came before me in the duty list on 31 January 2019. On that occasion, I made an order referring the matter to the pro bono panel for the purpose of legal advice to ZGB as to the existence and/or merits of the proceedings she had instituted against the Public Guardian and the other named individuals. I listed the matter before me for directions on 8 February 2019, because I understood from the Registry that the form for application for referral to Legal Aid had not been completed by ZGB.
ZGB informed me on 8 February 2019 that, in view of the time and urgency of the matter, she was not proceeding with the application for the referral for the pro bono assistance. She confirmed today that she made the decision that she would not have enough time, because of the urgency of the matter, and informed me that her mother is in an isolated and dangerous situation, and she feels that she has no other choice than to represent herself in the matter.
I should note that at the commencement of the hearing of the preliminary issues before me today, there was an attendance by counsel (Mr Ang), who indicated that he had received the papers in relation to ZGB's matter from the Bar Association and was prepared to appear as amicus curiae. However, he also informed me (and ZGB confirmed) that ZGB did not seek his assistance and, in those circumstances, he sought leave to be discharged from appearing in the matter. I excused him from attendance in the matter.
Also in attendance this afternoon at the commencement of the hearing was a solicitor (Mr Buck) appearing for Ms Maria Hammond, the respondent to a notice of motion filed 3 October 2018 by ZGB seeking emergency access to her mother. Ms Hammond, as I understand it, has a position with Catholic Healthcare which is the organisation which owns and/or operates the nursing home where ZGC is residing (pursuant to a decision made by the Public Guardian). I excused Mr Buck from attendance this afternoon on the basis that his client was not involved in the current application (the 3 October 2018 notice of motion not being before me today).
The other matter raised by ZGB as going to the reason for the delay in commencing the proceedings was an accusation by ZGB that Catholic Healthcare had engaged in a "pattern of trauma" to distract her in relation to this matter. ZGB also complains that insistence on a requirement for the filing of the summons within the time period provided under the Rules would operate in her case such that there would be a different rule operating for her from that which operated in relation to the Tribunal, pointing to the fact that the reasons of the Tribunal in relation to the Appeal Panel decision were not published until 6 March 2018.
For the Public Guardian, the submission is made that the length of three or almost four months delay in the filing of the summons must be seen in the context that ZGB received the notice of the outcome of the Appeal Panel's decision on 6 March 2018 but, on ZGB's account of the timeframe, since then she did not seek legal assistance until June 2018, noting that the first appointment with legal aid was not until July 2018 (though I interpose here to note that ZGB referred to a June date in oral submissions).
ZGB's response in oral reply submissions was that, as she had submitted earlier, there were very good reasons for delay as she was "ringing lawyers all over the place" and that she was trying to obtain assistance "from everyone in town". She said that, while she was doing that, she was the whole time in a state of trauma and worried about the state of her mother and that she had many meetings with the registrar or registrars of the Court in relation to dealing with the matter.
That is the first of the relevant factors.
The second relevant factor to take into consideration on the application for an extension of time is whether the applicant has a fairly arguable case. In this regard, ZGB's amended summons sets out (at p 6 of the summons) a section headed "Appeal Grounds," as follows:
I am requesting a Judicial Review of the NSW Civil and Administrative Tribunal Order for [ZGB] on these grounds outlined in the Administrative Decisions (Judicial Review) Act (Cth), section 5. Applications for review of decisions.
(a) that a breach of the rules of natural justice occurred in connection with the making of the decision;
(b) that procedures that were required by law to be observed in connection with the making of the decision were not observed.
(c) that the making of the decision was an improper exercise of the power conferred by the enactement in pursuance of which it was purposed to be made;
(d) that the decision was induced or affected by fraud;
(e) tht there was no evidence or other material to justify the making of the decision; in reference to:
(i) taking an irrelevant consideration into account in the exercise of a power;
(ii) failing to take a relevant consideration into account in the exercise of a power;
(iii) any other exercise of a power in a way that constitutes abuse of the power;
(iv) real and apprehended bias;
(v) No reasonable opportunity to deal with adverse material.
(vi) bad faith; and
(vii) "Wednesbury" unreasonableness.
After setting out that summary of the basis on which applications for review of decisions may be made, ZGB sets out the following matters.
Under the heading "[A] The reason given for Denying my Guardianship on the 7th of December NCAT Guardianship Appeal", ZGB sets out nine matters. Those include the statement that the Tribunal: had refused to indulge her mother's disability; had then gone on to "dehumanise" and "demean" her mother in the hearing notes by describing her as "having nothing to say and carrying a toy doll"; had ignored the carer (i.e., ZGB) and deprived her mother of her chosen spokesperson who understood her needs and could articulate them for her; did not take into consideration her mother's wishes to be cared for at her own home by her children, and ignored the importance of family in her mother's house; did not consider her mother's health and safety when making a decision about who should be the guardian and where that Public Guardian would force her to live against her will; did not consider the serious financial and elder abuse ZGB's mother and father were being subjected to by ZGB's siblings in the years moving up to ZGB's parents' "expulsion from their own home and under the roof of the Holy Spirit Croydon".
Next, under the heading "[B] The NCAT Tribunal did not focus on the Real Issues in the Proceedings which is outlined in Section 36 of the NCAT Act", ZGB makes a series of statements under the further heading "The Real Issue was 'What is in the best interests of [ZGC]?'". There is an accusation, amongst other things, that the Tribunal did not apply procedural fairness, that the Tribunal chose to collude with the respondents, and bring the Public Guardian and Catholic Healthcare into the proceedings, and allowed the HSC Care Director representing the financial interests of Catholic Healthcare to describe ZGB as medically unwell.
I should note that in oral submissions, ZGB has made allegations of fraud and collusion between the Public Guardian and her siblings; and has alleged that defamatory statements were made about her in the Tribunal. In particular, ZGB has said that the Public Guardian was "set up", and has suggested collusion on the part of Catholic Healthcare and others. ZGB has also made accusations not relevant to the current proceedings in relation to duress and intimidation and has asserted that Catholic Healthcare is using her mother to "torture" her.
Then, under the heading "[C] The Conduct of the NCAT Tribunal in leading the respondents to what I believe was their foregone conclusion Gives Rise to a 'reasonable apprehension of bias'", ZGB has set out various matters including the allegations that the Tribunal: did not value the life and partnership of her parents; allowed the respondents to bring in "the cognitively impaired and highly coerced" husband to testify against his wife's wishes; made the decision not on evidence but hearsay and gossip, and did not give her a reasonable opportunity to deal with adverse material; failed in its obligation to ensure that the Tribunal is accountable and has processes that are open and transparent; and failed in its obligation to promote public confidence in tribunal decision-making in the State and in the conduct of tribunal members; and exercised its discretionary power in a way which "at best, can be characterised as legally unreasonable and at worst knowingly corrupt."
The Public Guardian, in response to the submissions made by ZGB as to the existence of a fairly arguable case, submits that it is apparent from a reading of the appeal grounds that ZGB misunderstands the nature of the appeal proceedings (insofar as the matters set out under the headings B and C of the appeal grounds are concerned). The Public Guardian points out that a number of the matters there stated do not appear to relate to the Appeal Panel proceedings and do not appear to identify any error of law relevant to the appeal; and that the appeal grounds do not make reference to the reasons of either decision.
It is submitted that there was no focus by ZGB on the appeal decision noting that ZGB did not take me to any aspect of the judgment to suggest that there was relevant error. In particular, it is submitted by the Public Guardian that, from a review of the Appeal Panel decision, it is apparent that the Appeal Panel understood its role and sought to identify ZGB's grounds of appeal, reference there being made to [25], [29], [30], [34] - [44], and [52] - [55] of the decision; that the Appeal Panel made allowance for the fact that ZGB was unrepresented (see [29] of the reasons for the decision) that ZGB was afforded procedural fairness (referring to [14] of the Appeal Panel's reasons); that ZGC, was properly given a voice in the proceedings by the appointment of a guardian ad litem (noting what was stated at [16] of the Appeal Panel's reasons); that ZGB had agreed to the matter proceeding in the absence of ZGC (according to what was said at [18] and [21] of the Appeal Panel's reasons); and that ZGB's father was properly given a voice in the proceedings (by reference to the matters stated at [10] of the Appeal Panel's reasons).
It is submitted by the Public Guardian that, in all of the circumstances, no relevant error of law has been identified and that the matter does not involve issues of principle, questions of general public importance or an injustice which is reasonably clear. The Public Guardian submits that leave to appeal should not be granted.
[2]
Determination
Turning, first, to the issue of an extension of time for leave to appeal, I have set out reference to the principles that apply. As to the question of the delay, in particular the length and the reason for the delay, in my view that would not be determinative on the present application, particularly where ZGB is self-represented and has had difficulties in obtaining representation over the period of time.
However, I am of the view that the material provided in relation to the matter and, in particular, the grounds of appeal and submissions in relation to the grounds of appeal, do not warrant the conclusion that there is an arguable case that the Appeal Panel erred as a matter of law in dismissing the appeal that had been brought by ZGB.
ZGB is clearly emotionally distressed by the injustices and wrongs that she considers have been and are being perpetrated on her elderly mother. However, the issue in terms of the present appeal is whether or not there should be an extension of time for her to commence the appeal against the decision of the Appeal Panel. It is not a question of whether or not the initial decision to appoint a Public Guardian was the correct decision; it is a question whether the Appeal Panel erred as a matter of law in dismissing the appeal from that decision. I am not persuaded that the material goes so far as to establish that such an appeal is fairly arguable, having had regard to the considered reasons of the Appeal Panel in relation to the appeal.
Therefore, I consider that the prospects of an appeal are not such as to support the making of an order to extend time for the commencement of the appeal and leave to do so will be refused. That said, even had I been of the view that an extension of time should be granted for the filing of the summons commencing an appeal, I would not be of the view that leave to appeal should be granted.
The requirement for the grant of leave to appeal, particularly where the decision is an evaluative decision, is generally only where there are matters that involve issues of principle, questions of general public importance or an injustice which is reasonably clear in the sense of going beyond what is merely arguable (as was set out in Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46] (citing Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69 (Kirby P)) and has been applied in numerous cases in the Court of Appeal).
The difficulty in this regard is that the appeal grounds as set out in the amended summons, reviewed in the context of the reasons and the material that I have seen, do not persuade me that there is a fairly arguable case, as I have already noted, for the appeal and I am not satisfied that any relevant error of law (or, I here add, any question of principle or general public important or reasonably clear injustice) has been identified.
I should add that ZGB has alleged that the original decision of the Tribunal was procured by fraud. The appeal grounds do not, in terms, make an allegation of fraud. There is, however, a reference in the introductory section that I have extracted earlier in these reasons that refers to where a decision was induced or affected by fraud. As ZGB acknowledges, that is a serious allegation to be made.
The fraud, as I understand it, is said to relate to the circumstances in which the Tribunal made its initial decision - circumstances where there was a representative from the nursing home in question on the telephone and the Public Guardian at the time; where ZGB asserts that there was a financial interest on the part of Catholic Healthcare to procure a decision to that effect as to the costs of the healthcare accommodation; and where ZGB maintains that while in the nursing home a will was executed the authenticity or validity of which is disputed by ZGB).
It is unfortunate that ZGB has such serious concerns in relation to the treatment of her mother in the nursing home, but it is not clear to me that the concerns about the current treatment of her mother in the nursing home could not be met by her making an application in the Tribunal for revocation or review of the guardianship decisions that have been made (pursuant to ss 25 and 25C of the Guardianship Act 1989 (NSW)).
What ZGB has sought to do is to bring a summons for appeal from the Appeal Panel decision. In my opinion, the grounds of appeal do not identify, and ZGB has not been able to point to, a relevant error of law such that would give rise to reasonable prospects of appeal so as to warrant either the extension of time for the filing of the summons or the grant of leave to appeal.
[3]
Orders
Accordingly, on the separate (or preliminary) questions that have been listed before me for hearing (whether ZGB ought be granted leave to file her application for leave to appeal out of time and whether or not ZGB ought be granted leave to appeal from the decision of the Tribunal) I refuse an extension of time for the filing of the summons and note that, had I granted an extension of time for the filing of the summons, I would have refused leave to appeal.
The proper course of action is to dismiss the summons, noting that this does not preclude ZGB, if she wishes, from making an application in the protective list in relation to the matter in the future in proceedings freshly commenced by her.
[4]
Amendments
18 February 2019 - Typographical errors
Inclusion of quote paragraph in [22]
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Decision last updated: 18 February 2019