ZJA v ZJB [2022] NSWCATAP 20 | Case summary

NCAT Appeal Panel|2021-11-25

REASONS FOR DECISION

This is an appeal against a decision of the Guardianship Division of this Tribunal made on 24 August 2021 that appointed the Public Guardian for one year as the guardian of ZJB (the First Respondent and son of the Appellant).
The Appellant in the proceedings is ZJA who filed a Notice of Appeal with the Tribunal on 3 September 2021. The appeal was made within time.
We have concluded that the appeal should be dismissed. As a result the guardianship order as reviewed on 24 August 2021 appointing the Public Guardian as ZJB's guardian continues.
We now provide reasons for our decision.

Publication of the names of the parties

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 Tribunal is prohibited under s 65(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). Being an official report of the appeal proceedings, that prohibition does not apply to these Reasons for Decision due to s 65(3) of the CAT Act. Nonetheless, because of the sensitive nature of the matters raised in these proceedings, we will not refer to the parties or witnesses by name but will use descriptors.

Participation in the Appeal

On 29 September 2021 a differently constituted Appeal Panel made certain directions in these proceedings. On 11 October 2021 another differently constituted Appeal Panel decided not to appoint a separate representative for ZJB.
We considered whether we should try and obtain ZJB's views about the appeal but for the following reasons decided not to do so: 1. The Reasons for Decision explaining the decision that is the subject of this appeal stated (at [9]) that the Tribunal found that ZJB has "moderate to severe intellectual disability, neurodevelopmental disorder and autism spectrum disorder, and was unable to make important life decisions". These findings are not disputed in this appeal 2. ZJB did not take part in the hearing before the Tribunal below and the Tribunal's Reasons for Decision also noted (at [13]) that he "has not attended some previous Tribunal hearings due to the level of his intellectual disability". The Tribunal proceeded in his absence, without objection by any party, "on the basis that he cannot effectively participate in the proceedings and has a separate representative attending the hearing". 3. In advance of this appeal hearing, the Registry received correspondence dated 5 November 2021 from the Client Account Manager on behalf of the Managing Director of ZJB's accommodation provider (a disability service provider) advising that ZJB would not be attending the appeal hearing on the basis that ZJB's "direct participation in such hearings is not in his best interests". 4. Although the Appellant asked us to speak with ZJB to obtain his views, we did not think it necessary to do so in order to determine the appeal. If the appeal were to be successful, that would be a matter for the Tribunal to consider on any rehearing. 5. Having regard to these matters, we determined it would not be in ZJB's interests to take part in the appeal hearing, nor would he be able to engage with the proceedings.
An officer of the Public Guardian participated in the appeal hearing by way of telephone. In the Notice of Reply to Appeal received prior to the appeal hearing, the Public Guardian indicated that she did not wish to present a case or make submissions with regard to a question of law but reserved the right to present a case and make submissions should leave be granted to appeal on other grounds.
This remained the Public Guardian's position at the appeal hearing.
ZJB's mother (the Second Respondent) had notice of the appeal hearing but did not take part.

Background to the decision under appeal

ZJB currently lives in supported accommodation, managed by a disability service provider, where he is provided 24/7 support. At the time of the hearing below, he was 27 years of age. The Tribunal's reasons at [3] note that his family includes his mother, ZKA, his father, the Appellant, and his aunt, Ms Z.
The Tribunal's reasons at [8] to [10] set out the evidence and conclusions reached that ZJB remained a person with a disability for whom the guardianship order could be renewed. The reasons then go on to explain at [11] to [26] why the Tribunal exercised the discretion to renew the order and the basis for the decision making functions granted to the guardian.
The reasoning for the reappointment of the Public Guardian is provided at [27] to [36].
The Tribunal's reasons specifically addressed the Appellant's application to be appointed as his son's guardian. At [34] to [35] the Tribunal set out its reasons for finding that the Appellant was not suitable to be appointed as guardian as follows: [34] [The Appellant] does not accept the health professional evidence regarding [ZJB]'s medication regime. The medications were recently reviewed by Dr Y. In response to this review [the Appellant] said that his son is being given medications that are not listed in the report. No corroborating evidence was adduced by [the Appellant] regarding such an assertion. He was unclear as to whether there is a need for medications for his son. No medical or expert evidence was submitted by [the Appellant] to support his assertions and whether [ZJB] should be prescribed major medications. [The Appellant's] approach may cause harm to [ZJB] and is not in accordance with the s 4 Guardianship Act principles to protect a person from harm. A guardian is required to act with objectivity and insight and explain their plans in acting as a guardian. The Tribunal is not satisfied that [the Appellant] can do [this] based on his approach to dealing with such medical matters as evidenced at the hearing. [35] There is significant and entrenched conflict within the family. The conflict has been longstanding. During the hearing [Ms Z] proposed to be appointed as guardian. However, after discussing this proposal there was significant conflict from [the appellant] towards [Ms Z] and [the second respondent] leading [Ms Z] to indicate that she did not wish to be considered for appointment as guardian at the current time. The Tribunal is not satisfied that the appointment of [the Appellant], [the second respondent] or [Ms Z] would preserve family relationships for [ZJB] in accordance with the s 4 Guardianship Act principles. The Tribunal is not satisfied that the policy considerations and principles set forth in the Act regarding the preservation of family relationships would be given effect by a family member in view of the conflict.
On 24 August 2021 the Tribunal ordered that the Public Guardian would continue as ZJB's appointed guardian, with such order to be reviewed after a period of 12 months. The Public Guardian was reappointed with the authority to make decisions as to access, accommodation, health care, medical and dental treatment, services and restrictive practices.

The Appeal

The Appellant has a right to appeal against the Tribunal's decision of 24 August 2021, 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 CAT Act.
In Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69 the Appeal Panel set out at [13] a non-exclusive list of questions of law: 1. Whether there has been a failure to provide proper reasons; 2. Whether the Tribunal identified the wrong issue or asked the wrong question; 3. Whether a wrong principle of law had been applied; 4. Whether there was a failure to afford procedural fairness; 5. Whether the Tribunal failed to take into account relevant (i.e., mandatory) considerations; 6. Whether the Tribunal took into account an irrelevant consideration; 7. Whether there was no evidence to support a finding of fact; and 8. Whether the decision is so unreasonable that no reasonable decision-maker would make it.
In Cominos v Di Rico [2016] NSWCATAP 5, the Appeal Panel stated at [13]: [13] It may be difficult for self-represented appellants to clearly express their grounds of appeal. In such circumstances and having regard to the guiding principle, it is appropriate for the Appeal Panel to review an appellant's stated grounds of appeal, the material provided, and the decision of the Tribunal at first instance to examine whether it is possible to discern grounds that may either raise a question of law or a basis for leave to appeal. The Appeal Panel has taken such an approach in a number of cases, for instance, Khan v Kang [2014] NSWCATAP 48 and Prendergast v Western Murray Irrigation Ltd [2014] NSWCATAP 69. However, this must be balanced against the obligation to act fairly and impartially (Bauskis v Liew [2013] NSWCA 297 at [68] citing Hamod v State of New South Wales [2011] NSWCA 367 at [309]-[316]). Relevantly, s 38(2) provides that that Tribunal "may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
We were unable to identify any potential questions of law raised in the grounds of appeal. The Tribunal correctly stated and applied the relevant statutory tests, gave adequate reasons for its decision and took into account relevant considerations.
From the material filed by the Appellant, and confirmed by him at the appeal hearing, he sought leave to appeal on the basis, as we understood it, that the Tribunal should have appointed the Appellant as his son's guardian; that the decision of the Tribunal below that the Appellant was "no good"; it was against the weight of the evidence; and that it was "not right" for the Tribunal to "pass back" to the Public Guardian decision making authority about ZJB's health care.
The principles which govern the granting of leave to appeal pursuant to s 80(2)(b) of the CAT Act are set out in Collins v Urban [2014] NSWCATAP 17 at [84]: (1) In order to be granted leave to appeal, the applicant 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 [2013] NSWSC 253 (at [8]-[10]), White J considered the principles which applied to an appeal to the Supreme Court from a decision of the then NSW Guardianship Tribunal and stated: [10] 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 SAB v SEM [2013] NSWSC 253, [8]-[10] (White J); C v W [2015] NSWSC 1774, [44]-[46] (Lindsay J); P v NSW Trustee and Guardian [2015] NSWSC 579, [191] (Lindsay J).

Consideration

We do not agree with the proposition put to us by the Appellant that the decision of the Tribunal to appoint the Public Guardian as his son's guardian rather than the appellant was against the weight of the evidence.
The Tribunal's reasoning at [34] and [35] (as replicated in these reasons at [14] above) explains that the evidence permitted them to conclude that the Appellant could not adequately exercise the functions of the order. The Tribunal formed the same conclusion in relation to the other members of ZJB's family, albeit that the two other family members ultimately withdrew their applications to be appointed guardian (at [27]). To use the language of Justice Windeyer in W v G [2003] NSWSC 1170 at [25], the Tribunal concluded that an appointment of those who proposed themselves would not result in the policy considerations and principles set in the Guardianship Act 1987 (NSW) being given effect.
We are satisfied that there was sufficient evidence before the Tribunal to justify the conclusion reached in appointing the Public Guardian as ZJB's guardian. It was a conclusion that was open to the Tribunal when assessing the Appellant's ability to perform the role in accordance with the duty imposed in s 4 of the Guardianship Act and we do not accept the Appellant's submission that the Tribunal gave insufficient weight to the appellant's request to be appointed as guardian. Reading the Tribunal's Reasons for Decision as a whole, it cannot be said that a matter of administration or policy is raised which might have general application, that the Tribunal adopted an unorthodox approach to the conduct of the hearing, made a readily identifiable error or mistake or that it would be unjust to allow the findings to stand.
Accordingly, we conclude that there was no question of principle or policy raised, or manifest error in the decision or decision-making process under review, which merits a grant of leave (C v W [2015] NSWSC 1774, [44]; Collins v Urban [2014] NSWCATAP 17, [82]-[84]).

Orders 1. Leave to appeal is refused. 2. The appeal is 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: 27 January 2022

ZJA v ZJB

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