ZJJ v ZJK

ZJJ v ZJK - [2019] NSWCATAP 126 - NSWCATAP 2018 case summary — Zoe

[6]

The decision under appeal

In 2011, the Mother executed an instrument appointing the Appellant and the Brother as her enduring guardians, to act jointly and severally ("the 2011 EGA"). Apparently, at that time she was living independently with support from the Appellant. Between 2012 and May 2018, she lived in nine different aged care facilities.
On 10 November 2017, the Director made an application to NCAT seeking review of the 2011 EGA ("the substantive application"). That application was heard over two days, 4 April 2018 and 24 May 2018.
On the first day of the hearing the Tribunal refused to consent to an application made by the Director to withdraw the substantive application. An application to the Guardianship Division of NCAT cannot be withdrawn without the consent of the Tribunal: cl 10 of Sch 6 to the NCAT Act. In reasons given for deciding to refuse consent, the Tribunal referred at [5] to the "very serious issues in relation to [the Mother's] welfare that were raised by the applicant".
There was insufficient time to finalise the substantive application on 4 April 2018 so the Tribunal made orders adjourning the hearing to 24 May 2018 and inviting the parties to provide any further written material by 14 May 2018.
The Appellant participated in the first day of the hearing but only the first 30 minutes of the second day of the hearing on 24 May 2018.
On the second day of the hearing, the Tribunal dismissed a number of interlocutory applications made by the Appellant, which included requests to summarily dismiss the substantive application, to give leave to the Mother to be legally represented, to "pre-approve a costs order" in his favour against the Director, and, to adjourn the hearing. In addition, following questions raised by the Appellant about the Director's motivation for making the substantive application, the Tribunal decided to conduct an "own motion review", as permitted by s 6J(1)(a) of the Guardianship Act 1987 (NSW). The Tribunal went on to exercise the power to deal with the substantive application as an application for a guardianship order, as permitted by s 6K(3) of the Guardianship Act.
Noting the evidence, which included the opinion of the Mother's geriatrician that the Mother had "advanced dementia and considerable support needs", the Tribunal concluded that the Mother was a "person in need of a guardian" as defined by s 3(2) of the Guardianship Act and therefore the discretion to make, or to not make a guardianship order could be exercised.
Under the heading "Should we make a guardianship order and if so, what order should we make?", the Tribunal noted at [56] that the Director alleged that the Appellant: 1. Spent ten hours a day at the aged care facility where the Mother had been residing immediately before her current hospital admission ("the Facility"); 2. Was rough and aggressive with his mother; 3. Isolated his mother from other residents; 4. Gave his mother food that was not recommended by the speech pathologist; 5. Had assaulted the Manager at the Facility.
The Tribunal noted that the Appellant denied each allegation. In addition he claimed that he had been unaware of the speech pathologist's recommendations: at [56]-[57]. The Tribunal referred at [58] to "voluminous evidence" it had been given by the Appellant detailing numerous grievances about the Facility.
The Tribunal identified two issues it considered to be significant to the exercise of the discretion to make a guardianship order: the history of the Mother's accommodation in aged care and the Appellant's ability "to form and sustain working relationships with aged care facilities and healthcare professionals": at [60].
With respect to the former, the Tribunal noted that over the past six years the Mother had lived in nine different aged care facilities. The Tribunal noted that the managers of some of these facilities had asked the Appellant to relocate the Mother and that the manager of one facility had alleged that the Appellant had assaulted a resident, resulting in an apprehended violence order being taken out against the Appellant: at [61].
The Tribunal noted that the Director of Nursing at the Facility ("the Director of Nursing") claimed that while there had been a history of the Appellant refusing to have the mother assessed by speech therapists and dieticians, there had been "some improvements in recent months": at [64]. The Tribunal recorded at [65] the Director of Nursing as saying: [T]here have been a "world of other issues" with [the Appellant]. In 14 years, [the Director of Nursing] had not had a problem with families until dealing with [the Appellant].
The Tribunal went on at [65]-[75] to detail the concerns raised by various health practitioners about the actions taken, and decisions made, by the Appellant in respect of the Mother's treatment and care.
The Tribunal concluded at [81] that the 2011 EGA is "not working to allow for decisions to be made for [the Mother] in accordance with her interests". The Tribunal found it "disturbing" that the Mother had changed accommodation nine times in six years: at [82]. The Tribunal concluded that the Appellant "lack[ed] adequate ability to form and sustain working relationships with aged care and health professionals" and was "not able to satisfactorily make decisions in his mother's best interests as her enduring guardian". The Tribunal noted that decisions now need to be about where the Mother is to live when she is discharged from hospital and what is "an appropriate diet and feeding regime": at [84]. The Tribunal decided to make a guardianship order, stating it would be impracticable for these decisions to be made and for services to be adequately provided to the Mother "without a guardianship order that would override the current appointment of enduring guardian": at [87].
The Tribunal decided to give the guardian the power to make decisions about "access, accommodation, health care, medical and dental consent and diet and feeding practices" at [88].
The Tribunal went on to consider who should be appointed as guardian. While it did not question the Appellant's devotion to his mother, the Tribunal concluded that it could not be "satisfied that [the Appellant] is able to exercise the functions of the guardianship order": at [92].
The Tribunal decided to appoint the Brother as the Mother's guardian for a period of three months, "being a limited amount of time requested by [the Appellant] in order to provide [the Appellant] a further opportunity to attend a review hearing before longer term guardianship decisions are made": at [103].

[7]

Grounds of appeal

The Appellant has a right to appeal against a decision made by the Tribunal, 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. The Appellant appeals on questions of law, and, in addition, seeks leave to appeal.
In the notice of appeal, the Appellant wrote that he seeks to appeal the decisions made on 24 May 2018 and 26 July 2018. In the notice of appeal, the Appellant listed nine grounds of appeal. Under the heading "Grounds for appeal (specifically)", he identified a further 78 grounds. None refer to the nine grounds of appeal listed in the body of the notice of appeal. Most are expressions of disagreement about findings of fact made by the Tribunal: see for example grounds 10, 13 and 28. Many are in the nature of assertions about the operation and effect of various statutory provisions.
From the notice of appeal and the submissions made by the Appellant in the course of the hearing, we understand him to contend that the questions of law raised in this appeal are: 1. In making a guardianship order, did the Tribunal fail to take into account the matters listed in s 14(2) of Guardianship Act , as required by that Act, specifically the Appellant's views and those of the Mother and the importance of preserving family relationships? 2. Was the history of the Mother's placements in aged care facilities in the six years prior to her current hospital admission, an "irrelevant consideration" the Tribunal was bound to ignore? 3. Did the Tribunal misapply s 14(2)(d) by misinterpreting the word "services"? 4. Did the Tribunal fail to afford the Appellant procedural fairness by: 1. refusing to grant an adjournment, and 2. proceeding to conduct the hearing on 24 May 2018 in his absence? 1. Was there material before the Tribunal capable of supporting the finding that the Appellant was unable to exercise the role of guardian? 2. Did the Tribunal make a decision that was "legally unreasonable" by: 1. making a guardianship order, 2. giving the guardian the power to make decisions about the Mother's diet and access to the Mother, and 1. Did the Tribunal fail to give adequate reasons for its decision to make a guardianship order?

[9]

Ground 1: In making a guardianship order, did the Tribunal fail to take into account the matters listed in s 14(2) of the Guardianship Act as required by the Act, specifically the views of the Mother, the Appellant's views as carer, and the importance of preserving family relationships?

The Appellant contends that by making a guardianship order in respect of the Mother, the Tribunal failed as required by ss 14(2)(a)(i), 14(2)(a)(iii) and 14(2)(b) of the Guardianship Act, to have regard to his views and those of his Mother, and the importance of preserving family relationships. He contends that because neither he nor the Mother attended the hearing, it was not possible for the Tribunal to consider their views.
At the hearing of the appeal, the Appellant confirmed that he does not contend that the Tribunal failed to have regard to s 14(2)(c) - the importance of preserving the Mother's particular cultural and linguistic environments. In addition, he clarified that he no longer contended that the Tribunal failed to consider s 14(2)(d) - the practicability of services being provided to the Mother without the need for making a guardianship order, but rather contended that the Tribunal had misapplied that provision. That argument is addressed in Ground 3 below.
It is convenient, at the outset, to say something of the task the Tribunal was required to perform. Having concluded that the Mother was "a person in need of a guardian" as that term is defined by s 3(1), the Tribunal was required to exercise the discretion to make or not to make a guardianship order. As explained by an Appeal Panel of one of NCAT's predecessors, the NSW Administrative Decisions Tribunal, before exercising that discretionary power the Tribunal was required to have regard to each of the matters listed in s 14(2) and conduct a balancing exercise: IF v IG [2004] NSWADTAP 3 at [26]. The weight and relative importance given to each factor is a matter for the Tribunal to determine: IF v IG at [26].
Section 14 states: 14 TRIBUNAL MAY MAKE GUARDIANSHIP ORDERS (1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person. (2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to: (a) the views (if any) of: (i) the person, and (ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and (iii) the person, if any, who has care of the person, (b) the importance of preserving the person's existing family relationships, (c) the importance of preserving the person's particular cultural and linguistic environments, and (d) the practicability of services being provided to the person without the need for the making of such an order.
The matters listed in s 14(2) are commonly referred to as "relevant considerations". In Lo v Chief Commissioner of State Revenue [2013] NSWCA 180; (2013) 85 NSWLR 86 at [9], Basten JA states that that term has been "widely misunderstood" at [9]: The term "relevant considerations" is widely misunderstood: as used in leading authorities, such as Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J) it refers to a matter which the decision-maker is bound to take into account. The obligation may derive from the express terms of the power-conferring statute or may be implied from its subject matter, scope and purpose. A preferable term would be "mandatory consideration". Further, a matter traditionally described as an "irrelevant consideration" is one which is prohibited because, having regard to the subject matter, scope and purpose of the power being exercised, it can be seen to reflect an extraneous or improper purpose or to render the decision arbitrary or capricious. Between these two categories is usually a wide range of permissible considerations which the decision-maker may weigh or disregard without committing an error of law.
The task posed by s 14(2) required the Tribunal to give "proper, genuine and realistic consideration", or put another way, to "actively engage" with each of the considerations listed in s 14(2). As Flick J explained in Islam v Cash [2015] FCA 815; (2015) 148 ALD 132 at [14]: [M]ere advertence to a consideration, it is accepted, without any analysis may not be sufficient: Elias v Commissioner of Taxation [2002] FCA 845 at [62], [2002] FCA 845; (2002) 123 FCR 499 at 512. For a consideration to be properly taken into account, a decision-maker must give more than mere "lip service" to a relevant consideration: Anderson v Director-General of the Department of Environment and Climate Change [2008] NSWCA 337 at [58], [2008] NSWCA 337; (2008) 251 ALR 633 at 651 per Tobias JA (Spigelman CJ and Macfarlan JA agreeing). There must be "proper, genuine and realistic" consideration of those matters that are required to be taken into account: Williams v Minister for the Environment and Heritage [2003] FCA 535 at [29] to [30], (2003) 74 ALD 124 at 130. Wilcox J there cited with approval the following observations of Gummow J in Khan v Minister for Immigration and Ethnic Affairs [1987] FCA 457; (1987) 14 ALD 291: "[W]hat was required of the decision maker ... was that in considering all relevant material placed before him, he give proper, genuine and realistic consideration to the merits of the case and be ready in a proper case to depart from any applicable policy ... The assertion by a decision maker that he has acted in this fashion will not necessarily conclude the matter; the question will remain whether the merits have been given consideration in any real sense ..."

[10]

Consideration

At paragraph [53] of its reasons, the Tribunal noted that it was obliged to take into account each of the matters listed in s 14(2) of the Guardianship Act.
With respect to the views of the Mother, the Tribunal stated at [54]: While we could not obtain any views from [the Mother] in the current proceedings, she had signed an appointment of enduring guardian in 2011 expressing her wish for her sons [the Appellant] and [the Brother] to be able on a joint and several basis to make decisions about where she should live, healthcare and consent to medical and dental treatment.
From its reasons it is implicit that the Tribunal inferred from the fact that the Mother had appointed her sons to act as her enduring guardians, that had she been capable of expressing a view it was likely to have been to oppose disturbing the 2011 EGA by the making of a guardianship order.
With respect to the views of the Appellant, the Tribunal noted at [55] that he wanted "the proceedings dismissed which would have meant the existing appointment of enduring guardian staying in force". At [79] the Tribunal recorded that the Appellant opposed the making of a guardianship order.
With respect to the importance of preserving the Mother's existing family relationships, the Tribunal noted that the Mother's relationship with her two sons was important to her: at [79]. The Tribunal reasoned that if a guardianship order was made and an access function conferred, that would enable the ongoing issues about access to the Mother to "be resolved in a way that took into account the desirability of preserving family relationships…".
After considering various other matters, including the history of the Mother's accommodation since 2011 and the Appellant's relationships with aged care facilities and healthcare professionals, the Tribunal decided to make a guardianship order, reasoning at [79]-[88]: 79 In weighing the evidence, we attached weight to the fact that [the Mother] had made the appointment of enduring guardian and that a guardianship order would override this. We took account of [the Apellant]'s opposition to the application. 80 Whether or not we made a guardianship order, [the Mother]'s relationships with her two sons were important. 81 What was clear though was that the existing appointment of enduring guardian is not working to allow for decisions to be made for [the Mother] in accordance with her interests. That appointment allows [the Appellant] or [the Brother] to make decisions but in practice [the Appellant] has clearly been the predominant decision maker. 82 It was disturbing that [the Mother] has had nine moves in six years so that each new facility has had to learn about how to best meet her needs. 83 We also saw [the Appellant] as lacking adequate ability to form and sustain working relationships with aged care and health professionals. We based this view particularly on the evidence of [the hospital social worker] and [the Director] which we found impressive and accepted. [The hospital social worker]'s evidence particularly showed that [the Appellant] is unable to adequately listen to and consider professional advice. There have been ongoing issues about [the Mother]'s diet including [the Appellant] refusing to obtain or follow professional advice; we accepted the evidence of [the hospital social worker, the Director and the treating geriatrician] in this regard. The assault on [the manager of the care facility] was also disturbing as was his evidence that his staff were threatening to resign en masse because of [the Appellant]'s behaviour. 84 In these circumstances, we did not see [the Appellant] as able to satisfactorily make decisions in his mother's interests as her enduring guardian. 85 Decisions are now needed in relation to where [the Mother] goes after hospital and what is an appropriate diet and feeding regime for her (taking account of the recent advice from professionals at … Hospital). There will also be ongoing decisions about health care. 86 Also, in view of [the Appellant]'s relationship problems with aged care and health professionals, there was an issue about whether his access to his mother should be regulated to some degree. From the evidence of [the manager of the care facility], [the hospital social worker], [the Brother] and [the Director], we did not see this issue as able to be informally resolved in [the Mother]'s interests. A guardianship order would allow the issue of access to be resolved in a way that took account of the desirability of preserving family relationships as well as other relevant factors. 87 We were not satisfied that it is practicable for decisions about all these issues to be made for [the Mother] and services be adequately provided to her without a guardianship order that would override the current appointment of enduring guardian. 88 We were clear that we should make a guardianship order covering decisions about access, accommodation, health care, medical and dental consent and diet and feeding practices.
The contention that the Tribunal was unable to discern the respective views of the Mother and the Appellant because they did not attend the hearing on 24 May 2018 cannot be accepted. The Appellant informed the Tribunal at the April hearing that he opposed the making of a guardianship order, asserting that the current decision-making arrangements with respect to his mother were satisfactory. The documents he filed in the proceedings reflect that view. With respect to the Mother, the Tribunal had inferred that had she been able to express a view it probably would have been one of opposition to disturbing the 2011 EGA. In the appeal, the Appellant did not suggest that the Tribunal was mistaken in concluding that neither he nor his Mother supported the making of a guardianship order.
The Appellant was unable to point to any part of the reasons or any other material, to support the contention that the Tribunal failed to have regard to the importance of preserving family relationships. The substance of the Appellant's submissions is not the Tribunal's purported failure to consider s 14(2)(b), but rather the conclusion it reached at [86], that the exercise of the power to make a guardianship order was likely to have the effect of preserving family relationships, a conclusion with which he disagrees.
As the extracts from the reasons for decision set out at [43] above reveal, the Tribunal did not simply advert to the impugned considerations but, as required, gave each proper, genuine and realistic consideration. The Tribunal acknowledged that the views of the Appellant and the Mother weighed against making a guardianship order but nonetheless concluded that the balance of consideration favoured the making of a guardianship order.
The contention that in exercising the discretion to make a guardianship order the Tribunal failed to have regard to the views of the Appellant and the Mother and the importance of preserving the Mother's existing family relationships is not made out.
This ground of appeal must be rejected.

[11]

Ground 2: Was the history of the Mother's placements in aged care facilities an "irrelevant consideration" the Tribunal was bound to ignore?

The Appellant asserts that the history of the Mother's accommodation in aged care facilities over the past six years is an "irrelevant consideration", one the Tribunal was bound to ignore in the exercise of the discretion to make a guardianship order.
As Basten JA explained in Lo at [113], an "irrelevant consideration" is one which the decision maker is prohibited from taking into account in the exercise of the discretion. (See [36] above).
As is plain from its terms, s 14(2) does not expressly prohibit the Tribunal from considering matters that are not enumerated in that subsection, in exercising the discretion to make or not to make a guardianship order. Nor does any other provision of the Act. It is therefore necessary to consider whether the Guardianship Act impliedly prohibits the Tribunal from having regard to matters not listed in s 14(2). This requires an examination of the "subject matter, scope and purpose" of that Act: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Mason J at 40.
Guidance as to the scope and purpose of the Guardianship Act can be found in s 4 of that Act: 4 GENERAL PRINCIPLES It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
The obligation to have regard to these principles is reinforced by cl 5(1) of Sch 6 to the NCAT Act, which provides that when exercising its "Division functions for the purposes of the Guardianship Act", the Tribunal is under a duty to observe the principles set out in s 4 of that Act: see P v NSW Trustee and Guardian [2015] NSWSC 579 at [53]-[58], ZBC v ZBD [2016] NSWCATAP 264 at [101], [105].
Section 4 requires the Tribunal when exercising its functions under the Guardianship Act, to give paramount consideration to the welfare and interests of the subject person. Depending on the circumstances of the particular case, a vast range of factual matters and considerations might rationally be thought to be relevant to the welfare and interests of that person.
In IF v IG the Appeal Panel explained at [27] that in exercising the discretion conferred by s 14(2): [The Tribunal] is not limited to considering [the matters listed in s 14(2)] before determining whether to make a guardianship order. The [Tribunal] is clearly entitled to identify and be influenced by relevant matters other than those set out in s 14(2) when making its decision.
The contention that it was impermissible for the Tribunal to have regard to the history of the Mother's accommodation in aged care facilities is not supported by either the terms of s 14 or the subject matter, scope and purpose of the Guardianship Act. Indeed, given the requirement that the Tribunal give paramount consideration to the welfare and interests of the Mother, it would be somewhat bizarre if, in the absence of an express statutory direction, it was impermissible for the Tribunal to have regard to matters it concluded were relevant to the subject person's welfare and interests.
This ground of appeal is rejected.

[12]

Ground 3: Did the Tribunal misapply s 14(2)(d)?

The Appellant contends that in concluding at [87] that it was not satisfied that services could adequately be provided to the Mother without a guardianship order, the Tribunal misapplied s 14(2). He contends that the purported misapplication arose as a result of the mistaken assumption made by the Tribunal that decisions about "services" might need to be made by, or on behalf of, a person living in residential aged care. He asserts that providers of residential age care are required by statute and contract to provide all necessary services to residents. In submissions in support of the appeal he expressed the ground in this way: 2. The Guardianship Tribunal erred by not properly considering that [the Mother] already being within an Aged Care Facility and the Aged Care System was not in need of a Guardian when all arrangements, services, accommodation, medical and dental treatment were being provided for on an informal basis and contractual basis far in excess of that described in s ,6E of the Guardianship Act.
While it was not put in these terms, we understand the Appellant to contend that the word "services" in s 14(2)(d) should be given a narrow meaning and read as being a reference to services of the type that might be required by persons who remain living at home, for example, services relating to the care and maintenance of the person's home and the provision of meals to the person. Adopting that approach, the Appellant argues that s 14(2)(d) has no work to do in circumstances where the subject of the proposed guardianship order resides in aged care. It follows he contends that the Tribunal misapplied s 14(2)(d) in concluding that it could not be satisfied that services could be adequately provided to the Mother without a guardianship order.
The word "services" is not defined by the Guardianship Act. Its ordinary meaning includes "an act of helpful activity" (Macquarie Dictionary on line: https://www.macquariedictionary.com.au/features/word/search/?word=services&search_word_type=Dictionary), "the action of helping or doing work for someone"; "an act of assistance" (Oxford Dictionary on line: https://en.oxforddictionaries.com/definition/service).
In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 23, Dawson and Gaudron JJ stated that "services" is a word of complete generality and should not be given a narrow construction unless clearly required by definition or by context. Kirby J agreed, emphasising at 70 that the concept of services is an "extremely wide one" whose meaning is to be derived from the context. While IW v City of Perth concerned the meaning of "services" in the context of anti-discrimination legislation, the approach taken by the High Court should be adopted in relation to the meaning of the word "services" in s 14(2)(d). In our view, none of the text, context or purpose of s 14(2)(d) supports the narrow interpretation of the word "services" the Appellant urges us to adopt. It is apparent that depending on their particular circumstances, a person residing in aged care might reasonably require a wide range of services, including services of the type that a person residing in their own home might require or want, such as podiatry, occupational therapy, hairdressing services and companionship services. That some or all of these services are being provided, or are capable of being provided or arranged, by the subject residential care provider, does not mean that the question posed by s 14(2)(d), namely whether it is practicable for services to be provided to the subject person without the need for making a guardianship order, is irrelevant where the person the subject of the proposed order resides in residential aged care.
The Appellant has not taken us to the statutory provisions and "standard" contractual terms he asserts support the contention that providers of residential aged care must provide any or all services residents might reasonably require.
This ground of appeal is rejected.

[13]

Ground 4: Did the Tribunal fail to afford the Appellant procedural fairness?

The Appellant contends that by refusing to adjourn the hearing on 24 May 2018 and by proceeding to make a guardianship order in his absence, the Tribunal failed to afford him procedural fairness. To put this contention in context it is necessary to set out some background facts.
On 10 May 2018, the Appellant wrote to the Tribunal requesting that the Tribunal give the Mother leave to be legally represented and "pre-approve a Costs Order in favour of [the Mother] against [the Director]". On 14 May 2018, the Appellant again wrote to the Tribunal requesting that the substantive application be summarily dismissed on the ground that it "lacks sufficient merit". The Appellant wrote: In the event the proceedings are not summarily dismissed by the Tribunal, it is requested the Tribunal grants leave for [the Appellant] (First Respondent) to seek and have Legal Representation for himself at a rescheduled hearing date 28 days after the Tribunal decides if at all to grant the first respondent's request.
In an email sent on 18 May 2018, a member of NCAT's registry informed the Appellant that the documents he submitted on 14 May 2018, which included the letter requesting an adjournment, would be determined by the Tribunal at the hearing on 24 May 2018. The officer requested the Appellant to confirm that he would be attending the hearing. On 20 May 2018, the Appellant emailed the Tribunal referring to his request for an adjournment and asking for clarification about whether "the hearing scheduled for 24 May 2018 is to be the final hearing".
The hearing on 24 May 2018 was held in John Maddison Tower in Sydney's CBD. The Appellant was not in attendance. Shortly after the commencement of the hearing and after being advised by other participants that the Appellant was with his mother at the hospital, the Tribunal contacted the Appellant by phone. According to a transcript prepared by the Appellant and provided to the Appeal Panel, the following exchange took place: 28. [Appellant]: I've put several motions to be decided today one is to dismiss the proceedings. 29. [Presiding Member]: That's right I think [the Appellant] you had better hot foot it in here please so we can deal with everything face to face and [the hospital social worker] who is also part of this discussion well ring you when we need to talk to you during the hearing. 30. [Hospital social worker]: So ok can I just confirm I've heard you correctly, you have just asked [the Appellant] to go into the city? 31. [Presiding Member]: That's right 32. [Hospital social worker]: And you will wait for him to arrive before you will need to speak to me? 33. [Presiding Member]: Correct, probably there we have a number of procedural issues that [the Appellant] has raised (5 minutes tape time) and if we go ahead with the hearing it will be certainly quite late in the morning or perhaps in the afternoon before we ring you. 34. [Hospital social worker]: Ok no worries that's fine the video conference room was only booked for an hour and a half so I'll be available on my mobile. 35. [Presiding Member]: That's fine. 36. [Hospital social worker]: Won't be available by video. 37. [Presiding Member]: That's fine [the hospital social worker] thank you. 38. [Brother]: Is that all right with you [the Appellant]? 39. [Appellant]: I'm not sure this is a very expensive phone plan that I'm on so. 40. [Brother]: Sorry how about we ring you? 41. [Appellant]: How about you have the proceedings without me ok. 42. [Presiding Member]: No No No No [the Appellant] [the Appellant] there is no way we can have the proceedings without you if we are going to be fair to you so what we need you to do is to come in here is that ok? 43. [Appellant]: Not necessarily, no it is going to go past the lunchtime break and I'm the only one whose preparing the meals for my mother unfortunately. 44. [Presiding Member]: All right in that case (6 minutes tape time) we had better go back to what [the hospital social worker] was offering which is a. 45. [Hospital social worker]: He is welcome to attend with me he can go down to the video conference room with me which is onsite here at the hospital and he can attend the hearing via video conference that's more than ok with me. 46. [Presiding Member]: Right Lets start it off that way and we will work it out from there but. 47. [Brother]: [the Appellant] perhaps we could ring you on your mobile if the video time has lapsed for the hospital so how does that sound so you can still attend by audio. 48. [Presiding Member]: We will work it out from there let's get down to the video room first and then we can deal with you preliminary issues so that you raised [the Brother] and we can work it out from there we have set aside the whole day if you and [the hospital social worker] head down to that video room (7 minutes tape time) and [the hospital social worker] if you can how long will that be? 49. [Hospital social worker]: If you can call me in about ten minutes. 50. [Presiding Member]: Yep we will call you. 51. [Hospital social worker]: We will be set up by then. (Obvious errors in the above and following extracts of the transcript have not been corrected.)
Discussion ensued between the Tribunal and the participants about the arrangements for the video link. The social worker then gave the following account of her conversation with the Appellant: 77. [Hospital social worker]: So I got off the phone to you and went into [the Mother]'s room to ask [the Appellant] to come down to the video conference room with me and he said he wasn't going to do that he said I haven't been told to do that and I told him that I was on the phone to NCAT and given the conversation you had with him, and that you had requested him to come down to the video conference room (4 minutes tape time) and he said he had been told by his brother that the video conference room was unbooked and wasn't working so I don't need to go with you…..
The Brother then informed the Tribunal that he had attempted to contact the Appellant by phone, but the call went to voicemail. At the suggestion of the social worker the presiding member then contacted the Appellant on the Hospital's ward phone: 108. [Presiding Member]: [the Appellant] it's the Tribunal Jim Simpson look … I [the Appellant] I need to say to you very clearly that if you do not participate (9 minutes tape time) in the hearing, whether it's by phone or by video or in person then we will proceed to whether we will make some decisions about the procedurals in the applications you've made about adjournment and legal representations……. 109. [Presiding Member]: ….and we may depending on the outcome of deciding that, me may proceed with the whole hearing and end up considering whether we make for example a guardianship order appointing a different guardian than yourself…… 110. [Presiding Member]:….. I just need to be really frank with you that that's what we may consider doing if you choose not to be part of this discussion today. 111. [Appellant]: I understand ok, just to let you know [the hospital social worker] has just advised me that one my mother is in hospital, they refuse to discharge her (10 minutes tape time) till apparently this hearing occurs but anyway if the hearing doesn't go ahead and it's adjourned for 28 days they plan on keeping her here in hospital for another month…… 112. [Appellant]: ….. at this point in time she is unable to walk or stand because they just keep her in a bed all the time. So I've made a request to have her discharged to a rehabilitation hospital and I believe an order like that is outside of your jurisdiction. 113. [Presiding Member]: Yes. 114. [Appellant]: Is that the correct terminology?....... 115. [Presiding Member]: That's correct a guardianship order… 116. [Appellant]: Because irrespective to whatever happens to the particular hearing today my mother needs to go into a rehabilitation hospital so that means that's a proceedings in a different jurisdiction then. 117. [Presiding Member]: That could be. 118. [Appellant]: Ok that's what the particular situation is please go ahead with the hearing if that happens to be the case. I've given you all the (11 minutes tape time) particular information the only thing I would add and we might as well do it now ok.
The Appellant then went on to make submissions about various matters, the precise relevance of which is unclear. About 25 minutes after the commencement of the hearing, the Appellant hung up. The hearing continued in his absence.

[15]

Consideration

The Tribunal was obliged to afford each party procedural fairness: s 38(2) of the NCAT Act. Among other things, the Tribunal was required to take such measures as are "reasonably practicable" to ensure that 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. In addition, the Tribunal was required to have regard to the "guiding principle" - to facilitate the just, quick, and cheap resolution of the real issues in the proceedings - together with the objects of the NCAT Act, which include the resolution of the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: ss 36(1) and 3(d).
The Appellant had been on notice for six weeks of the hearing on 24 May 2018. He was given three options to participate: in person, by video link or by phone. The claim that it was not possible to attend in person because to do so would have meant there was no one available to care for and feed his mother, is unsupported and implausible given at the time the Mother was an inpatient in a major Sydney public hospital. The Appellant provided no evidence to support his claim that to participate in the hearing by video link was likely to have exacerbated his tinnitus. The explanation he gave for being unable to participate by phone was unpersuasive. It is difficult to conclude otherwise than that for reasons which remain unclear, the Appellant was unwilling to participate in the hearing.
With respect to the assertion that the "Tribunal's rules" required it to determine the application for adjournment prior to the hearing, we understand the Appellant to rely on NCAT's Guardianship Division Guideline, "Adjournments", dated August 2017. That Guideline states that if the Tribunal receives a written adjournment request more than five working days before the hearing, usually that application will be determined in advance of the hearing: at [11]. The Guideline states in bold, "You cannot assume the Tribunal will allow an adjournment even if all the parties agree".
The nature of the obligation imposed on the Tribunal by the NCAT Act was to provide the Appellant with a reasonable opportunity, not every opportunity, to participate in the hearing. The Tribunal not only complied with but exceeded that obligation. As noted, when the Appellant failed to attend the hearing without explanation, the Tribunal contacted him by phone. Later, when a call made by the Tribunal to his mobile phone went to voice mail, the Tribunal contacted the Appellant on the ward phone. In addition, the Tribunal offered to delay the commencement of the hearing to enable the Appellant to travel to the city. He cannot now claim that because he declined those opportunities he was denied procedural fairness.
Why the application for an adjournment, which was made eight working days before the hearing, was not determined prior to the hearing on 24 May is not clear from the Tribunal's file. However, in our view the Appellant's reliance on the Guideline is misplaced. The Guideline states that usually an application for an adjournment received more than five working days before the hearing will be determined in advance. Neither the Guideline nor the exchange of correspondence between the Appellant and NCAT before the hearing could be said to have given rise to a legitimate expectation that the hearing would be adjourned. Nor is that asserted. The failure to determine that application in advance of the hearing does not amount to a failure to comply with the obligation imposed by s 38(5)(c) of the NCAT Act.
This ground of appeal is rejected.

[16]

Ground 5: Was there material before the Tribunal capable of supporting the finding made by the Tribunal that the Appellant was unable to exercise the role of guardian?

The Appellant asserts that there was no material before the Tribunal capable of supporting its finding that he was unable to exercise the role of guardian. To the contrary, he asserts that the only finding available to the Tribunal was that he was able to properly discharge the functions of that role.
Before appointing a person as guardian, the Tribunal must be satisfied that the proposed person meets the criteria for appointment in s 17(1) of the Guardianship Act. That provision states: 17 GUARDIANS (1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal is satisfied that: (a) the personality of the proposed guardian is generally compatible with that of the person under guardianship, (b) there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and (c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order.
The Tribunal stated that it could not be satisfied that the Appellant was able to exercise the functions it had conferred in the guardianship order, for the reasons it gave for its decision to exercise the discretion to make a guardianship order: at [92].
The first of those reasons was the history of the Mother's nine moves over six years, to different aged care facilities. The Tribunal described this history as "disturbing" noting that "each new facility has had to learn about how to best meet her needs": at [82]. It is implicit from the Tribunal's detailed consideration of the circumstances surrounding these moves (at [61]) and the evidence about the Appellant's interaction with staff at the various facilities (at [64]-[75]), that the Tribunal considered the Appellant to be largely responsible for the frequent moves. While noting that the Appellant and the Brother held a joint appointment as enduring guardians, the Tribunal concluded that "in practice" the Appellant had been the predominant decision maker: at [81].
The second reason given was the finding that the Appellant lacked the "ability to form and sustain working relationships with aged care and health professionals": [82]. The Tribunal stated that it based this conclusion "particularly on the evidence of [the hospital social worker] and [the Director of Nursing]": at [83]. The Tribunal detailed in its reasons the litany of concerns each of these people expressed about the Appellant's care of his mother and his interactions with nursing staff and health practitioners involved in her care. The hospital social worker reported that the Appellant had been observed "feeding his mother with a bottle when she was lying flat and her eyes closed, disputes about a dietician's advice, transferring [the Mother] by himself against advice and wanting her strapped into a chair": at [68]. With respect to [the Director of Nursing], the reasons detail her account of the ongoing disagreement between the Appellant and health practitioners about a range of issues, including the Mother's diet and a "world of other issues": at [64]-[68]. In concluding that the Appellant lacked the ability to form and sustain working relationships with health professionals, the Tribunal also referred to its findings that the Appellant had refused to obtain or follow professional advice about his mother's care and treatment, the alleged assault of the Director by the Appellant, and the threat made by the staff of the Facility "to resign en masse because of [the Appellant's] behaviour": at [85].
The contention that there was no material before the Tribunal capable of supporting the finding that the Appellant was unable to discharge the functions conferred under the guardianship order, is not supported by the reasons given by the Tribunal for making that finding. As the reasons reveal, there was ample material before the Tribunal to support its finding that the Appellant was unable to exercise the role of guardian.
This ground of appeal is rejected.

[17]

Ground 6: Did the Tribunal make a decision that was "legally unreasonable"?

The Appellant contends that the decisions under appeal, specifically the decision to make a guardianship order, the decision to give the guardian the power to make decisions about the Mother's diet and access to the Mother, and the decision not to appoint the Appellant as guardian, were "legally unreasonable" in the sense used by the High Court in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 ("Li").
In Li, the High Court extended the basis upon which the exercise of a discretionary power can be set aside on the ground of unreasonableness. The plurality (Hayne, Kiefel and Bell JJ) held at [68] that Wednesbury unreasonableness, that is, an irrational, if not bizarre decision, one that no reasonable person could have arrived at (per Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223), is neither the starting nor the end point for the standard of unreasonableness. The plurality held that the concept of legal unreasonableness extends to a decision which lacks "an evident and intelligible justification": [75], [76].
In Judicial Review of Administrative Action and Government Liability by M Aronson, M Groves and G Weeks (Thomson Reuters, 6th ed, 2017) the authors commented (at [6.450]), that Li "invites a qualitative assessment of the impugned discretionary decision, but it does not allow an appeal to the judicial review judge's subjective sense of reasonableness". See also GAR v Attorney General of New South Wales (No 2) [2017] NSWCA 314 at [154].
In submissions in support of this ground, the Appellant asserted that prior to the making of the guardianship order, the decision making arrangements with respect to his Mother had been working well and, as a consequence, there was no need for a guardianship order, less still one which gave the guardian an access and diet function. In addition, he argued that contrary to the conclusion reached by the Tribunal, he was able to discharge the role of guardian. In support of these contentions he relied on material, some of which was not before the Tribunal. Apart from asserting that each of the impugned decisions was "wrong" and "unreasonable" the Appellant did not elaborate on the basis for his assertion that they lacked an "evident and intelligible justification".
Again, this ground appears to be an expression of the Appellant's disagreement with the findings made and conclusions reached by the Tribunal. That he holds the honest belief that the impugned decisions lack an evident and intelligible justification is insufficient to establish that contention.
The ground of appeal is rejected.

[18]

Ground 7: Did the Tribunal fail to give adequate reasons for its decision?

The Tribunal was required to give adequate reasons for its decision to make a guardianship order and the consequential decisions to give the guardian the power to make decisions about access to the Mother and her diet and to appoint the Brother and not the Appellant as guardian: (see generally, Wainohu v New South Wales [2011] HCA 24, (2011) 243 CLR 181; Beale v GIO (1997) 48 NSWLR 430; Collins v Urban [2014] NSWCATAP 17 ("Collins")).
Section 63(3) of the NCAT Act stipulates that any statement of reasons must contain: (a) the findings on material questions of fact, referring to the evidence or other material on which those findings were based, (b) the Tribunal's understanding of the applicable law, (c) the reasoning processes that lead the Tribunal to the conclusions it made.
While not required to give "lengthy or elaborate reasons", the Tribunal was nonetheless required to articulate the "essential ground or grounds upon which the decision rests": Collins at [54] citing Sydney Supermarkets Pty Limited v Xu [2009] NSWADTAP 28 at [60] and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (McHugh JA) at [280].
The Appellant did not refer to any specific part of the reasons to support his contention that the reasons were inadequate.
There is significant overlap between this ground of appeal and ground 6. The reasons contain the findings on material questions of fact made by the Tribunal and refer to the material on which those findings were based. See, for example, in relation to the finding that the Appellant was unable to exercise the functions of the guardian: [60]-[78], [81]-[84], [92]. In addition, the reasons contain the Tribunal's understanding of the applicable law. See, for example, in relation to the exercise of the power to make a guardianship order: [53]; in relation to the exercise of the power to appoint a guardian: [89], [90]. As discussed above in relation to ground 6, the chain of reasoning that led the Tribunal to the conclusions it reached is readily discernible from the reasons.
The contention that the Tribunal failed to give adequate reasons for the decision under appeal is not established. This ground of appeal is rejected.

[19]

Should leave to appeal the decision made on 24 May 2018 be granted?

Having concluded that no error of law is established, it is necessary to decide whether, as the Appellant seeks, leave to appeal should be granted: s 80(2)(b) of the NCAT Act. The Brother opposes leave being granted.
In Collins v Urban [2014] NSWCATAP 17 the Appeal Panel noted at [84] that there must be a "sound basis" for granting leave to appeal and an applicant for leave 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)
The material filed in support of the appeal, which includes the document listing 78 grounds of appeal, does not distinguish between purported errors of law and grounds which might justify the grant of leave. At the hearing of the appeal, we asked the Appellant to clarify the basis for his application for leave to appeal. He advised that he relied upon three contentions: 1. that the Brother and the Director "colluded to give false evidence"; 2. that the Brother made "false statements" at the hearing; and 3. that the Tribunal went about the fact finding process in such an unorthodox manner or in such a way that it was likely to produce an unfair result.

[29]

Should leave be given to the Appellant to appeal the decision to refuse to give leave to the Appellant to be legally represented, to pre-approve a costs order in favour of the Appellant, to adjourn the hearing on 24 May 2018 and to refuse to dismiss the substantive application?

On 26 May 2018, following written applications made by the Appellant filed on 10 May and 14 May 2018, the Tribunal made a series of interlocutory decisions, refusing the applications made by the Appellant for orders: 1. adjourning the hearing on 24 May 2018; 2. pre-approving the Director to pay the Appellant's costs; 3. giving the Appellant leave to be legally represented; and 4. dismissing the substantive application on the ground that it "lacks sufficient merit".
Each of the above decisions is an interlocutory decision as defined by s 4(1) of the NCAT Act. The Appellant therefore requires leave to appeal those decisions: s 80(2) of the NCAT Act. We have set out above the general principles stated in Collins which guide the power to grant leave to appeal.
Before deciding whether leave should be granted it is necessary to refer to each decision. The decision to refuse to adjourn the hearing on 24 May 2018 is discussed above.
In its reasons the Tribunal noted at [19] the submissions made by the Appellant in support of the interlocutory applications: (1) Alleging apprehended bias on the part of Tribunal members - we could see no basis for this apprehension. (2) Alleging the Tribunal had altered the wording or context of its orders of 4 April 2018 - we could see no basis for this allegation. (3) Complaining that the Tribunal did not on 4 April make a decision on a request of [the Appellant] to dismiss the proceedings on that date - we were not obliged to do so. (4) Complaining about the substantiation and hearsay nature of evidence provided by [the Director] and the Tribunal not requiring evidence to be in affidavit form - we are not bound by the rules of evidence or required to only take evidence on oath. The key issue for the Tribunal is whether evidence is logically probative (Pochi v Minister for Immigration and Ethnic Affairs (1979) 36 FLR 482 at 492-3). (5) Alleging that [the Director's] case was frivolous, vexatious or misconceived - we deal with that issue later.
The Tribunal noted that a party to proceedings may be represented by another person only if the Tribunal grants leave: s 45 of the NCAT Act. In dismissing the application for the Appellant to be legally represented, the Tribunal noted at [20] that that no other party was represented in the proceedings, the Appellant sought leave 10 days before the hearing and if leave were granted the determination of the substantive application is likely to have been delayed.
With respect to the application for costs, the Tribunal noted that s 60 of the NCAT Act provides that the power to order costs can only be exercised in "special circumstances". The Tribunal saw no basis to "pre-approve a cost order": at [21].
With respect to the application to dismiss the proceedings on the ground advanced by the Appellant, namely that the proceedings were "frivolous or vexatious or otherwise misconceived or lacking in substance" (s 55(1)(b) of the NCAT Act), the Tribunal rejected that contention, referring to the material provided, and the concerns raised, by the Director that "the Mother's interests may call for our intervention": at [34].

At a glance

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Catchwords

Judgment (34 paragraphs)

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Legislation Cited (5)

Cases Cited (26)

Cited By (2)