ZQU v NSW Public Guardian

Legislative background

1. The Appellant's challenge to the decision of the Public Guardian was made pursuant to s. 80A of the Guardianship Act 1987 which provides as follows: (1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) An application under this section may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision.
2. The Reg. 17 of the Guardianship Regulation 2016 provides that For the purposes of section 80A(1)(b) of the Act, all decisions made by the Public Guardian in connections with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed.
3. It is common ground the decisions made by the Public Guardian in this matter were in connection with its functions as a guardian and that the Appellant's interests were adversely affected. He was entitled to challenge the decisions.
4. The Appellant's challenge to the Public Guardian's decisions was made to the Tribunal because Section 9(1) of the ADR Act provides: (1) The Tribunal has administrative review jurisdiction over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator: (a) in the exercise of functions conferred or imposed by or under the legislation, or (b) in the exercise of any other functions of the administrator identified by the legislation.
5. The "Tribunal" is defined in s.4 as the Civil and Administrative Tribunal. Clearly enough, the Guardianship Act 1987 is the enabling legislation and s.80A provides that applications may be made to the Tribunal for an administrative review.
6. When considering such a review, the Tribunal is required by s.63(1) of the ADR Act to determine the review as follows: (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
7. A recent case in the Occupational Division Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [21] explained the legal framework when the Tribunal hears an administrative review under s. 63 of the ADR Act, as follows: This is a review on the merits: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 ("Donaghy"). We are not concerned to examine whether there was challengeable error in the process or reasoning by the Commissioner, although parts of the grounds of the application as lodged in the Tribunal appear to proceed on this basis. As the NSW Court of Appeal said in Donaghy, the Tribunal is to "decide what the correct and preferable decision is having regard to the material before it" under s 63(1) of the ADR Act. That material includes "any relevant factual material". The nature of that review does not require that the Tribunal address whether the relevant administrator's decision involved error or was manifestly unsupportable. It is a review on the merits to be determined on the material before the Tribunal: Donaghy at [8].

The Tribunal reasons

1. The Tribunal heard and determined the matter on 12 June 2020. The appearances were the same as the Appeal Panel except that in the Tribunal hearing ZSC's interests were represented by a guardian ad litem, Dr Weule. The Tribunal gave ex tempore reasons at the conclusion of the hearing on 12 June which were later transcribed and a copy provided to the Appeal Panel.
2. The Tribunal noted that ZSC had been living, until relatively recently in her own home in Matraville with her son the Appellant. The Tribunal noted the three decisions of the public guardian which could be conveniently considered together as the "accommodation decision".
3. The Tribunal noted the Public Guardian had determined that the Appellant be asked to leave the property by 16 June 2020. The Tribunal noted that the Appellant had applied for a stay of the Public Guardian's decision and decided to determine the stay application at the same time as the substantive review.
4. The Tribunal ultimately affirmed the Public Guardian's decisions with one exception - the date for the Appellant to vacate the property was extended from 16 June to 22 June 2020.
5. We do note one error in the reasons as transcribed and provided to us. The heading to the reasons indicates that the Tribunal was sitting in the Guardianship Division. However, administrative reviews are allocated to the Administrative and Equal Opportunity Division - see CAT Act Sched 6 Cl. 3(3). Nothing turns on this and we consider this to be a typographical error or oversight not affecting the substance of reasons. In any event, the Tribunal was properly constituted by an appropriately qualified member - refer s. 27 CAT Act
6. The Tribunal determined that the Appellant had a right to seek a review pursuant to s. 80A of the Guardianship Act because he was a person adversely affected by the decision and with the consent of the parties, the Tribunal decided to dispense with the requirement that the decision under review first be subject to an internal review. This was done pursuant to section 55(4) of the ADR Act.
7. The Tribunal noted that in broad terms the essence of the decision made by the Public Guardian was based upon its conclusion that it would be preferable for ZSC to live at home without her son. The reason for that conclusion being that she has expressed a consistent and strong view that it is her preference to live alone.
8. The basis for the respite decision was to enable the property to be thoroughly cleaned and refurbished as well as to allow time for the house to become vacant from other persons.
9. The Tribunal noted that a guardian ad litem had been appointed for ZSC. The guardian ad litem appeared at the Tribunal hearing, gave evidence of her conversations with ZSC and other family members and made submissions.
10. The Tribunal noted there were a number of factual issues in dispute. 1. The first was whether or not visitors are welcome into the home. The Tribunal accepted the evidence of ZSC and found that over time she had become socially isolated on account of living with her son. 2. The second disputed issue was whether or not the house is in a state of disrepair and/or is dirty. The Tribunal noted the Appellant's allegation that the problem is clutter left by one of his sisters when she moved out of the home a few years ago. The Tribunal determined that the property is in a state of disrepair and contains clutter, and that the Appellant while not solely responsible for that state of affairs, at least from time to time, is not co-operating with repairs being undertaken to the property. 3. The third issue was whether or not the Appellant has interfered with arrangements made for his mother to receive care. The Tribunal's finding on this contested factual issue was it accepted that there was credible evidence of the Appellant interfering with service providers (refer foot of page 9).
11. At page 8.6 of the decision the Tribunal correctly identifies the question to be decided as, "what is the correct and preferable decision having regard to all the material that I have before me''.
12. The Tribunal noted the Appellant's interests and that he reported having no financial means so he will become homeless after living with his mother for nearly two decades. The Tribunal accepted he will be adversely affected if the decision under review is affirmed.
13. The Tribunal examined the general principles in s. 4 of the Guardianship Act 1987 and applied them in reaching its decision. It found that a consideration of family relationships favoured affirming the decision. Regarding the welfare and interests of ZSC the weight of evidence was that she wished to live at home without her son. She had consistently expressed that view. The Tribunal found it was in her best interests to return to live at home without the Appellant.
14. The Tribunal noted that the Appellant had alleged the preferable decision was that ZSC's house be demolished and new and more suitable premises erected in its place. The Public Guardian said this was not a financially viable option and the Tribunal decided that in the absence of detailed costings, the Appellant's suggestion was not a realistic option.
15. For those reasons, the Tribunal decided, in essence, to affirm the decision under review.

The Appeal

1. The notice of appeal was filed on 19 June 2020 which is within 28 day time period specified in cl 25(4) of the Civil and Administrative Tribunal Rules 2014.
2. On 1 July 2020 the Appeal Panel refused the appellant's application for a stay but extended the time for him to vacate the property to 3 July 2020. The Appellant told the Appeal Panel he moved from the home on that date. He has since found alternate accommodation with a relative.
3. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) CAT Act.
4. 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.
5. 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."

Notice of Appeal

1. The Notice of Appeal lacked clarity, so given that it was prepared by a self-represented litigant, and consistent with the above authorities, during the hearing the Appeal Panel asked questions of the Appellant to assist him to articulate its grounds with more precision.
2. Following that discussion, the Appellant's grounds of appeal can be stated as: 1. In sufficient weight was given to the effect of the decision upon the Appellant, which is to make him homeless. 2. The decision was procedurally unfair. 3. The decision was unsound because evidence relied upon was obtained in breach of the Appellant's privacy.
3. Ground 1 does not raise an error of law and requires leave under s.80(2)(b).
4. Ground 2, if proven, potentially raises an error of law.
5. Ground 3 could possibly raise an error of law and will be examined in further detail below.

Identifying submissions and evidence

1. In considering the appeal, we have had regard to the following: 1. the Notice of Appeal and statements of the Appellant dated 10 August and 16 August 2020 both of which attached numerous documents. 2. the Appellant's Application for Stay with attached statement of the Appellant dated 29 June 2020 and submissions from the Respondent.; 3. the Reply to Appeal; 4. the transcript of the reasons at first instance; 5. the orders made by the Tribunal including directions made on 23 June, 26 June, 3 July, 17 July and 22 July 2020; 6. the original administrative review application and stay application with statement of the appellant dated 20 May 2020 with attachments
2. We have also had regard to the oral submissions made to the Appeal Panel by the Appellant and Ms Csanyi.
3. We did not have regard to a statement of the Appellant dated 26 August 2020 which was filed after the hearing had concluded and the decision reserved. Leave had not been given to file further material and the Respondent had not consented to the Appeal Panel considering it. In any event, the content did not appear to be relevant to the issues to be decided.
4. The material provided by the Appellant was voluminous and mostly irrelevant to the Appeal. It included much material that was not before the Tribunal. We do not intend to undertake the laborious task of identifying each item of new evidence among the Appellant's material because none of that additional material is sufficiently significant to warrant it being received as new evidence on appeal. Further, the Appellant did not provide us with any explanation at all as to why this additional material was not provided to the Tribunal. We do not grant leave to the Appellant to introduce any new or fresh evidence.
5. As the welfare and interests of ZSC are paramount (s. 4 Guardianship Act 1987), the Appeal Panel allowed the Respondent to provide it with the following further evidence regarding her current welfare and circumstances: 1. She is still in respite care with one of her daughters due to a delay in completing the refurbishment of her home; 2. The refurbishment work has completed and the Public Guardian is awaiting a final report as to the suitability of the home for re-occupation; 3. It is anticipated ZSC can move back in shortly; and 4. She continues to voice the wish to live in the home on her own.
6. The Appeal Panel accepts this further evidence as it was not disputed.

Ground 1 - the Appellant is made homeless

1. The Appellant says he does not accept the reasons of the Tribunal and he has not done anything to warrant eviction. The Appellant says the Tribunal did not give sufficient weight to the adverse effect the decision would have upon him. He said if the decision was overturned, he would have the choice whether to return to the home, depending upon his mother's wishes.
2. This ground is essentially a challenge to the factual findings made by the Tribunal and requires leave of the Appeal Panel. There are restrictions on the granting of leave, explained in Collins v Urban [2014] NSWCATAP 17 at [84] as follows: The general principles derived from these cases can be summarised as follows: 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: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [19] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 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, BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [20] and the authorities cited there, SAB v SEM [2013] NSWSC 253 at [8] and [9] and the authorities cited there, Nakad v Commissioner of Police, NSW Police Force [2014] NSWCATAP 10 at [45]; 3. In relation to an application for leave to appeal relating to a question of practice and procedure, the application is to be approached with the restraint applied by an appellate court when reviewing such decisions, especially if the application is made during the course of a hearing: BHP Billiton Ltd v Dunning [2013] NSWCA 421 at [21] and the authorities cited there.
3. We understood this ground of appeal to be a challenge to the factual findings first that ZSC wished to live in the home without the Appellant and second, and even if that were so, that it did not justify the appellant being asked to vacate the property.
4. As to the first, the Appellant's argument is weakened somewhat by his statement to the Appeal Panel that he now supports his mother's wish to live alone.
5. Even if that were not the case, the Tribunal relied on credible evidence from ZSC, her daughters and carers to justify the factual finding so any challenge on this aspect must fail.
6. As to the second, the Tribunal did take account of the effect the decision would have upon the Appellant. The Tribunal had to balance the wishes and welfare of ZSC with the wishes and welfare of the Appellant. The Appellant is unhappy with the result but the Tribunal clearly had the evidence upon which to make the decision that it did. The Tribunal made a discretionary decision. The Tribunal was not provided with any evidence of the Appellant's financial circumstances in order to conduct a more informed balancing of interests.
7. Indeed, in the light of s. 4 of the Guardianship Act 1987 which provides that in making the decision, the welfare and interests of ZSC are of "paramount importance" we think the challenge to the decision on this aspect should not be upheld, but also the decision was clearly the correct one on the evidence available.
8. The Appellant has not demonstrated that this ground provides any cogent basis upon which the decision could be challenged. The first ground of appeal fails.

Ground 2 - procedural unfairness

1. The Appellant explained to the Appeal Panel that the evidence given against him in the Tribunal was not "substantiated" - he said it was verbal evidence and not evidence based on fact. He said that there was no opportunity to disprove the allegations against him.
2. The fact that the evidence was verbal is of no consequence. Verbal evidence is still evidence. There was no complaint of the Appellant being taken by surprise by late evidence without an opportunity to address it, or that an adjournment should have been suggested. The complaint seems to be that the Appellant could have marshalled some evidence in response if he had realised the importance of it. Such a complaint does not persuade us that the Tribunal made any error in its procedure, or that there was any unfairness since the Appellant is responsible for presenting his own evidence.
3. There is no complaint that the procedure adopted by the Tribunal during the hearing was deficient in some way. Nor could there be in the circumstances. Directions hearings were held before the Appeal Panel hearing. On 25 June orders were made for the parties to lodge the sound recording of the hearing and/or a transcript if what happened at the hearing was to be relied upon. The Appeal Panel was not provided with a sound recording or transcript apart from the reasons.
4. The Appellant has failed to demonstrate any error by the Tribunal in its procedure and this ground fails.

Ground 3 - privacy concerns

1. The Appellant said that this ground was based upon some of the evidence being obtained "in breach of privacy". When asked for details, the Appellant referred to the medical report of Dr Mills (ZSC's treating geriatrician) saying that the history in relation to the Appellant taken by the Doctor and recorded in the report, was incorrect and obtained not from the Appellant but from others. It was not explained by the Appellant how this is a breach of some law in NSW or how the Tribunal made a legal or factual error.
2. We pause to observe that the recording of a history by a medical practitioner is standard clinical practice. In doing so, the medical practitioner commonly relies upon a wide variety of sources including hearsay information. So much is not surprising or controversial. A common difficulty in litigation arises when a party disputes information recorded in a medical history. There are a number of methods to meet this evidentiary challenge including evidence in rebuttal, but the hearing in the Tribunal was the appropriate time for this to be done, not in the Appeal Panel hearing.
3. Nor was the Appellant able to demonstrate to us that the information which he alleges breaches his privacy was relied upon by the Tribunal in reaching its decision. The Appellant has not demonstrated how such a breach might give rise to an error of law or some other basis for the granting of leave to appeal.
4. We consider the "breach of privacy" argument is misconceived as a ground of appeal. The Appellant has failed to prove that this constitutes a valid ground of appeal.

Conclusion

1. The Appellant has failed to demonstrate that the Tribunal fell into error Accordingly, we make the following order. 1. 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: 15 September 2020