ZJA v ZJB

NCAT Appeal Panel|2018-09-26

REASONS FOR DECISION

25-year-old ZJB has a moderate to severe intellectual disability and an autism spectrum disorder. His father appeals against a decision made by the Guardianship Division of the NSW Civil and Administrative Tribunal (NCAT) to make a further guardianship order in respect of ZJB for a period of 12 months and to appoint the NSW Public Guardian as ZJB's guardian.
For the reasons that follow, we have decided to dismiss the appeal.

Publication of parties' names

The publication or broadcast of the name of any person mentioned or otherwise involved in an "internal appeal" against decisions made by the Guardianship Division of NCAT is prohibited: ss 65(1), 65(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act). Being an official report of the appeal proceedings, that prohibition does not apply to these reasons: s 65(3) of the NCAT Act. Nonetheless, because of the sensitive nature of the matters discussed in these reasons, we will not refer to the parties by name.

Background to the decision under appeal

In April 2015, the Tribunal made a guardianship order in respect of the Subject Person, appointing his mother and aunt to act as joint guardians for a period of 12 months.
In March 2016, after an end-of-term review of the original guardianship order, required to be conducted by s 25(2) of the Guardianship Act 1987 (NSW) (the Act), a differently constituted Tribunal decided to make a further guardianship order in respect of the Appellant for a period of three years and to appoint the Subject Person's aunt as sole guardian.
In November 2017, following receipt of an application for review made by the Appellant, the Tribunal made a further guardianship order for a period of three months. After being informed that the Subject Person's aunt was not willing to continue in the role of guardian, the Tribunal appointed the Public Guardian.
On 17 January 2018, the Appellant filed an application with NCAT seeking review of the guardianship order made in November 2017.
On 27 February 2018, following a review, the Tribunal made a further guardianship order in respect of the Subject Person for a period of 12 months, reappointing the Public Guardian with authority to make decisions about the Subject Person's accommodation, health care and access, and to consent to medical and dental treatment. This is the decision the subject of this appeal.

The decision under appeal

On 27 February 2018, the Tribunal conducted a hearing to review the guardianship order made in respect of the Subject Person in November 2017.
In August 2017, the Appellant took the Subject Person from the group home where the Subject Person was then living, to live with him in a motel. The Subject Person lived with the Appellant until 18 November 2017, when the Subject Person was admitted to hospital. The Subject Person remained as an inpatient until discharged on 22 January 2018. Shortly after being discharged, the Subject Person moved to a group home on the NSW Central Coast, which is managed by service provider, My Goal Australia, (the group home). He remains living there to this day.
In his application for review of the November 2017 guardianship order lodged in January 2018, the Appellant wrote that he wanted the Subject Person to live with him in a hotel and "to pay the costs on a '50:50 basis'". In addition, the Appellant expressed concern about the medication being given to the Subject Person in the group home, alleging the Subject Person was being "overmedicated" and unable to get out of bed. The Appellant claimed that while in his care, the Subject Person was on a low dose of medication.
The Tribunal recorded at [32 the Mother's allegation that, in the three months after the Subject Person was removed from the group home, it was only by going to the police and by "constantly begging" the Appellant that the Appellant permitted her to speak to the Subject Person.
After reviewing the available material, in particular that relating to the Subject Person's accommodation and care over the past six months, and considering each of the matters listed in s 14(2) of the Act, the Tribunal decided to exercise the power to make a further guardianship order. In reaching that conclusion the Tribunal reasoned: 35. In summary, the evidence indicated there was a need to make decisions about accommodation because it is a very recent placement. [The Appellant] was very unhappy with certain aspects of the care, which appeared related to the medication levels. There is still a need to make decisions about support services, because [the Subject Person] is now in a new area. There is a need to make decisions about access. This is both because of the recent history of [the Appellant] removing [the Subject Person] from his accommodation and also because [the Subject Person] can become agitated. There is also a need to make decisions about health care and medical and dental consents, because of the complexity of [the Subject Person's] health. … 38. I considered whether services could be provided and decisions made without an order. [The Appellant's] father and also [the Appellant's] mother and aunt are all very concerned about [the Appellant's] welfare, but have very differing views about [the Appellant's] care. The two different sides of the family are not able to communicate in a meaningful way.
The Tribunal noted at [40] that the Appellant had originally proposed that he be appointed guardian. Though the Appellant had originally proposed that he be appointed as guardian, by the end of the hearing he revised his opinion, stating that he did not oppose the Public Guardian being reappointed, but did not want the officer, who currently had primary responsibility for making decisions for the Subject Person, to continue in the role: reasons at [40]. The Tribunal wrote at [43] that, while the Appellant "was no longer putting himself forward to be appointed as guardian", because of his "changeable views and difficulties with communication", it was necessary to address his suitability for appointment. The Tribunal stated at [44]: There is considerable family conflict about [the Subject Person's] care. There is no meaningful communication between the two sides of the family. I could not be satisfied [the Appellant] would be able to give effect to the principles identified in s4 of the Guardianship Act. He would not be able to preserve [the Subject Person's] family relationships and has previously prevented contact between [the Subject Person] and his mother and aunt. Even during the course of the hearing, he made inappropriate comments towards [the Subject Person's] aunt in particular. I was also not satisfied that the welfare and interests of [the Subject Person] would be the paramount consideration in any decision making because of the deeply held antipathy towards the [Subject Person's] mother and aunt. As there was no suitable private person to be appointed I reappointed the Public Guardian.

Grounds of appeal

The Appellant has a right to appeal against the Tribunal's decision to make a guardianship order, as of right on any question of law or, with the leave of the Appeal Panel, on any other ground: s 80(2)(b) of the NCAT Act. In the Notice of Appeal and supporting documentation, the Appellant complains about decisions made by the Public Guardian about the Appellant's access to the Subject Person. The Appeal Panel's powers do not extend to reviewing those decisions, rather, the Appeal Panel may only review the decision nominated by the Appellant in the Notice of Appeal, which in this case is the Tribunal's decision to make a guardianship order.
In the interest of completeness, we note that in June 2018, the Appellant made an application to NCAT under the Administrative Decisions Review Act 1997 (NSW) for review of a number of decisions made by the Public Guardian relating to the Subject Person's accommodation. That application was heard on 19 September 2018 in the Administrative and Equal Opportunity division of NCAT (NCAT 2018/00219251). The decision is reserved.
From the Notice of Appeal and supporting submissions, it appears that the Appellant appeals on questions of law, and in addition, seeks leave to appeal.
We understand that the Appellant's grounds of appeal on questions of law are whether the Tribunal failed to accord the Appellant procedural fairness by: 1. refusing to permit him to speak at the hearing; 2. refusing to permit his solicitor to speak at the hearing.

Did the Tribunal fail to accord the Appellant procedural fairness by refusing to permit him to speak at the hearing?

In the Notice of Appeal the Appellant wrote: In my opinion I was not given a fair hearing at the Tribunal. I had hired a solicitor to give evidence who was not allowed to speak. Also I was not to say anything.
The Appellant has not provided any material to support the contention that the Tribunal refused him the opportunity to "say anything" at the hearing. Indeed, the reasons for decision are replete with references to statements the Tribunal attributed to the Appellant: 1. At the hearing, it was claimed by [the Appellant] that [the Subject Person's aunt] was preventing [the Appellant] from having information about [the Subject Person's] health: at [10]. 2. [The Appellant] told me he was not happy with the new accommodation: at [29]. 3. I was told [the Appellant] had not been happy with previous accommodation provided by House With no Steps … He was also unhappy with the current accommodation because he considered [the Subject Person] was overmedicated: at [33]. 4. After hearing the evidence and speaking with Mr Cardillo, [the Appellant] told me he was not opposed to the Public Guardian being reappointed: at [40].
The Tribunal was obliged to afford all parties, including the Appellant, procedural fairness: s 38(2) of the NCAT Act. This obligation required the Tribunal to take such measures as were reasonably practicable to ensure each party had a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: s 38(5)(c) of the NCAT Act. If, as the Appellant claims, the Tribunal had refused to allow him the opportunity to speak, this would amount to a denial of procedural fairness. However, there is no material to support that factual contention. Indeed, the reasons indicate that the Appellant was given, and took, the opportunity to speak throughout the hearing.
It may be that the Appellant holds the genuine belief that he was not given an opportunity to speak at the hearing. However, that belief is unsupported and is contradicted by the available material.
This ground of appeal is rejected.

Did the Tribunal fail to accord the Appellant procedural fairness by refusing to permit his solicitor to speak at the hearing?

In a letter to the NCAT Registrar dated 13 February 2018, solicitor Tony Cardillo sought permission from the Tribunal to assist the Appellant "on an informal basis in the proceedings". He wrote that given that the Appellant does not have good written and spoken communication skills and has "difficulty in understanding the issues to be considered the proceedings … I believe that my assistance to [the Appellant] may help to resolve the application".
In its reasons at [17], the Tribunal referred to Mr Cardillo's involvement in the hearing: [The Appellant] was assisted at the hearing by Mr Tony Cardillo, a solicitor. Mr Cardillo indicated at the start of the hearing, that he would not be seeking leave to represent [the Appellant]. He said he would provide support and informal assistance.
The Tribunal noted at [40] that after hearing the evidence and speaking with Mr Cardillo, the Appellant told the Tribunal that he was not opposed to the reappointment of the Public Guardian. In the concluding paragraph of its reasons, the Tribunal noted the statement made by Mr Cardillo at the hearing that he was willing to assist the Appellant to discuss his concerns about the Subject Person's accommodation and medication with the Public Guardian.
There is nothing before us to indicate that the Tribunal refused to permit Mr Cardillo to assist the Appellant, or to give Mr Cardillo an opportunity to speak at the hearing.
The proposition underlying this ground of appeal is not established.

Should leave to appeal be given?

In Collins v Urban [2014] NSWCATAP 17, an Appeal Panel of NCAT noted at [84] that to grant leave to appeal under s 80(2)(b) of the NCAT Act, there must be a "sound basis" for granting leave and the appellant must demonstrate something more than that the primary decision maker was arguably wrong in the conclusion arrived at, or that there was a bona fide challenge to an issue of fact: (2) Ordinarily it is appropriate to grant leave to appeal only in matters that involve: (a) issues of principle; (b) questions of public importance or matters of administration or policy which might have general application; or (c) an injustice which is reasonably clear, in the sense of going beyond merely what is arguable, or an error that is plain and readily apparent which is central to the Tribunal's decision and not merely peripheral, so that it would be unjust to allow the finding to stand; (d) a factual error that was unreasonably arrived at and clearly mistaken; or (e) the Tribunal having gone about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed, (Citations omitted)
In SAB v SEM and Ors [2013] NSWSC 253 at [7]-[10], White J emphasised the need to take account of the protective character of the jurisdiction, in exercising the power to grant or withhold leave to appeal from a decision of one of NCAT predecessor Tribunals, the Guardianship Tribunal of NSW, to the Supreme Court: The grant or withholding of leave is to be exercised having regard to the general principles in s 4 of the Act, including the principle that the welfare and interests of the person with disabilities is to be given paramount consideration. But that is not to say that the gateway requiring leave to appeal can be emasculated by the Court's too readily engaging in a detailed review of the facts with a view to detecting possible error.
See also, C v W [2015] NSWSC 1774, [44]-[46] (Lindsay J); P v NSW Trustee and Guardian [2015] NSWSC 579 at [198] (Lindsay J). This approach has consistently been applied by Appeal Panels of NCAT to the exercise of the power to grant leave to appeal under s 80(2)(b) of the NCAT Act, from decisions made by the Guardianship Division. See for example, ZII v ZIJ [2018] NSWCATAP 255 at [60].
The Appellant submits that leave should be granted because in his opinion, the Public Guardian has made a series of poor decisions about the Subject Person's accommodation, service providers, medication and access arrangements. In short, he asserts that the Subject Person is currently being neglected and it would be in the Subject Person's best interests to live with him. Of particular concern to the Appellant are the decisions made by the Public Guardian, which restrict his ability to visit the Subject Person.
The Appeal Panel appointed Bill Hoyles to act as guardian ad litem for the Subject Person in this appeal. In a detailed report, dated 7 September 2018, Mr Hoyles wrote that he had visited the Subject Person at his current place of residence and reviewed the documentary material filed in the appeal. In his report, Mr Hoyles made a number of suggestions, which in his view would enhance the Subject Person's placement and make it more "home like". He wrote that during his visit he saw "no visible evidence of neglect, malnutrition, abuse or injury", which might indicate that the Subject Person was "being inappropriately cared for physically". He also wrote that he saw no evidence that the Public Guardian is "providing an inadequate level of guardianship to protect [the Subject Person's] best interests": He wrote that he accepted that the Appellant "very much wishes to care for his son and wants what he feels is best for [the Subject Person]".
The Public Guardian opposes leave being granted, contending that none of the factors listed by the Appeal Panel in Collins v Urban are established. In addition, the Public Guardian asserts that consistent with its obligation to give paramount consideration to the Subject Person's interests, it has diligently performed its role as substitute decision-maker. Referring to the affidavit sworn on 7 September 2018 by the Principal Guardian responsible for the Subject Person, the Public Guardian points to the extensive steps taken to find suitable accommodation and services for the Subject Person. In addition, the Principal Guardian outlined the steps taken to broker an agreement with the Appellant about visiting arrangements in relation his son.

Consideration

We agree with the submission made by the Public Guardian that none of the factors listed in Collins v Urban, which might warrant granting leave, apply to the decision under appeal. The Tribunal went about its role as fact finder in an entirely orthodox manner, it correctly stated and applied the relevant statutory tests, and it gave adequate reasons for its decision. While the decision under appeal is of great importance to the Appellant and the Subject Person, it raises no issue of general principle or importance and is confined to the specific facts of the case.
Given the protective nature of the jurisdiction, consistent with the obligation to give paramount consideration to the welfare and interests of the Subject Person, in appropriate cases the interests of justice might warrant granting leave to appeal, notwithstanding that none of the factors listed in Collins v Urban are established. These could include the existence of compelling evidence that the appointed guardian was not discharging their role in a manner consistent with their obligations.
This is not such a case. The available evidence indicates that the Public Guardian appears to be discharging its role as guardian in a manner consistent with its statutory obligations. In reaching that conclusion we have taken into account the difficulty encountered by the Public Guardian in finding suitable accommodation and services to support the Subject Person, given his high care needs. We have also been assisted by the thoughtful and candid report prepared by Mr Hoyles, who provided an independent assessment of the Subject Person's current circumstances.
The circumstances do not warrant the exercise of the power to grant leave to appeal.

Should the power to extend the time to lodge the appeal be exercised?

To appeal a decision of NCAT, a party must file the Notice of Appeal within 28 days of being notified of the decision under appeal or receiving written reasons for that decision, whichever is the latter: r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW). The Notice of Appeal must be accompanied by the "applicable fee": r 25(2)(d) of the Civil and Administrative Tribunal Rules. While the Appellant lodged the Notice of Appeal within time he did not pay the applicable fee until 12 June 2018, about 60 days after the statutory deadline.
As the accompanying fee was not paid within time, the appeal cannot proceed unless the power conferred by s 41 of the NCAT Act to extend the period of time to lodge an appeal is exercised. That power must be exercised judicially having regard to the "guiding principle", to facilitate the just, quick and cheap resolution of the real issues in the proceedings: s 36 of the NCAT Act; Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [18].
The correspondence between the NCAT Registrar and the Appellant reveal that the Appellant was under a misapprehension that he was entitled to appeal the decision without paying a fee. The issue was ultimately resolved and the fee paid. There is no evidence of, and nor is it asserted, that any party was prejudiced by the late payment of the fee. Indeed, all parties to the appeal who participated in the appeal supported leave being granted to the Appellant to appeal out of time. While the length of delay is considerable, the weight of factors favours extending the time to pay the accompanying fee.

Orders 1. The time for lodging the appeal is extended to 12 June 2018. 2. Leave to appeal is refused. 3. Appeal dismissed. 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: 17 December 2018

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