GR v Secretary, Department of Communities and Justice

1. [1]

   ADAMSON JA: By summons dated 5 June 2023 and filed on 7 June 2023, the applicant, GR, seeks leave to appeal in respect of the following:

   1. (1)

      the refusal by the Appeal Panel of the New South Wales Civil and Administrative Tribunal (the Tribunal) of her application for leave to appeal against the refusal by Member Booby of her application to be joined to guardianship proceedings in the Tribunal concerning her son, AB (the joinder application); and

   2. (2)

      the orders by Hammerschlag CJ in Eq (the primary judge) summarily dismissing:

2. [2]

   By notice of appeal filed on 23 June 2023, the applicant appeals against the summary dismissal of her application for a writ of habeas corpus.

3. [3]

   For the reasons which follow, I propose that leave to appeal be granted, the appeal be allowed and that the orders made by the primary judge be set aside (with the exception of the summary dismissal of GR’s application for a writ of habeas corpus) and the Equity Proceedings and Common Law Proceedings be listed for further directions before a single judge. In respect of the notice of appeal filed on 23 June 2023, I propose that the appeal be dismissed.

4. [4]

   The procedural history of matters involving GR and AB is lengthy and complex. However, for present purposes, the relevant history can be summarised as follows.

5. [5]

   AB was born in late October 2004. He has been assessed as a person of high intelligence and has a severe degree of autism.

6. [6]

   On 27 February 2019, the Children’s Court made interim orders pursuant to s 69 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), allocating all aspects of parental responsibility for AB’s care to the Minister. Final orders to that effect were made pursuant to s 79 of the Care Act on 3 April 2020. GR’s appeal against those orders (which also sought orders that she be appointed guardian of AB) pursuant to s 91 of the Care Act was dismissed on 27 August 2021: GR v Department of Communities and Justice [2021] NSWSC 1081 (Sackar J). Her summons for leave to appeal to this Court was heard on 14 and 15 June 2022 and dismissed on 18 August 2022: GR v Secretary, Department of Communities and Justice [2022] NSWCA 153.

7. [7]

   On 13 April 2022 (before GR’s summons for leave to appeal referred to above was heard), Amy Eldridge, an officer of the Department of Communities and Justice (the Department) filed an application in the Tribunal’s Guardianship Division for the appointment of a guardian and financial manager for AB, to take effect upon AB attaining his majority in late October 2022 (the Eldridge proceedings). A directions hearing was fixed for 9 June 2022.

8. [8]

   On 31 May 2022, GR emailed the Tribunal saying that she opposed Ms Eldridge’s application and sought an adjournment of the application pending determination of her appeal to this Court from the judgment of Sackar J (referred to above).

9. [9]

   Later on 31 May 2022, the Registrar notified GR of the directions hearing listed on 9 June 2022 and advised GR that she could apply to be joined as a party to the proceeding. An application form was sent to her for that purpose. The Registrar also said that any application by GR to be joined as a party could be heard at the directions hearing listed on 9 June 2022. A notice of listing was attached to the Registrar’s email, which confirmed that the directions hearing would be held on 9 June 2022 at 4pm. The notice included the following statement that:

10. [10]

    On 7 June 2022, Ms Eldridge filed “replacement” applications for guardianship and financial management of AB.

11. [11]

    On 8 June 2022, GR and AB’s father each applied to be joined as a party to the Eldridge proceedings. In addition, GR sought an adjournment of the directions hearing on two grounds: first, on the basis set out above that this Court ought hear and determine her appeal first (since the outcome of the appeal had the potential to influence the decision whether to appoint a guardian and, if so, whom to appoint); and, secondly, that she was in a hearing in the Children’s Court on 9 June 2022 and, therefore, could not appear in the Tribunal. GR sent emails to this effect to the Tribunal at 11.08am and 12.29pm on 8 June 2022.

12. [12]

    At 3.15pm on 8 June 2022, the Tribunal responded to GR as follows:

13. [13]

    At 3.35pm on 8 June 2022, GR sent an email to the Tribunal in which she said:

14. [14]

    At 5.22pm on 8 June 2022, GR sent a further email to the Tribunal in which she said:

15. [15]

    At 3.19pm on 9 June 2022, GR sent an email to the Tribunal in which she said in part:

16. [16]

    Notwithstanding GR’s submissions and her application for an adjournment, the Tribunal (Member Booby) proceeded with the directions hearing at 4pm on 9 June 2022. The Tribunal ordered that the replacement applications which Ms Eldridge had filed on 7 June 2022 would replace the original applications filed on 13 April 2022.

17. [17]

    The Tribunal noted (as recorded on the transcript) that both AB’s father and GR wanted to take part. The Tribunal phoned AB’s father who came on the line and remained on the line for the whole of the directions hearing. The Tribunal obtained GR’s telephone number from Ms Eldridge. When the Tribunal phoned GR’s number, it went to voice message. Member Booby said:

18. [18]

    Member Booby then checked that the number she had phoned corresponded with the phone number on GR’s joinder application and confirmed that it did. AB’s father made submissions about AB’s financial situation and other matters concerning his welfare.

19. [19]

    At the conclusion of the hearing, the Tribunal refused the applications of GR and AB’s father to be joined as parties to the Eldridge proceedings. Although formal reasons were not given, the following extract from the transcript indicates the basis on which joinder was refused:

20. [20]

    At the conclusion of the hearing, Member Booby refused to provide AB’s father with a copy of the orders as he was not a party.

21. [21]

    As referred to above, the appeal from Sackar J was heard by this Court on 14 and 15 June 2022, following which the Court reserved its decision.

22. [22]

    It appears that on 18 July 2022, GR applied unsuccessfully to the Tribunal (differently constituted) to have her application for guardianship of AB determined concurrently with Ms Eldridge’s application. This was referred to in the Tribunal’s reasons published on 11 August 2022 (referred to below). The Tribunal ordered that GR’s applications for legal and financial guardianship be heard after and not concurrently with Ms Eldridge’s applications.

23. [23]

    On 20 July 2022, GR sent an application by email to the Tribunal seeking summary dismissal of Ms Eldridge’s application, which was listed for hearing that day, and an order that she be appointed AB’s enduring legal and financial guardian. The Tribunal (which comprised SM Barnes, SM Staples and Member McGirr) confirmed that it would not determine that matter in advance of the hearing of Ms Eldridge’s application but confirmed that it had power to dismiss the proceedings if it were not persuaded that it was in AB’s interests to make the orders.

24. [24]

    GR, who participated in the hearing by telephone, submitted to the Tribunal that the hearing ought be adjourned because she had been served neither with the Eldridge application, nor the evidence in support of the application and that this failure amounted to a denial of procedural fairness. GR also submitted that the hearing ought also be adjourned because she had filed an application for enduring legal and financial guardianship of AB.

25. [25]

    After a brief adjournment, the Tribunal returned and refused the adjournment but indicated that it would hear GR on her application to be appointed AB’s guardian.

26. [26]

    The Tribunal proceeded to hear the substantive applications. GR made submissions about why the Eldridge application ought be refused. The following exchange appears from the transcript:

27. [27]

    During the hearing, the Tribunal heard from GR (and the parties and AB’s father, who was also not a party) as to why no guardian ought be appointed (as she contended) and why, if a guardian were to be appointed, she ought be appointed his guardian. GR submitted, first, that the Tribunal ought not consider the question of AB’s guardianship and financial management when this Court was still reserved on the appeal from Sackar J. Secondly, she submitted that AB’s ability to make decisions could not properly be assessed because of the medications he was taking and indicated that she would be able to present evidence of this matter. The Tribunal informed her that she would have to present evidence that day, since the matter was listed for hearing on that day. GR did not have the evidence to which she referred that day as she had not been served with the evidence on which the Public Guardian sought to rely (as she was not a party).

28. [28]

    GR also referred to her own application, that she be granted enduring legal and financial guardianship of AB. She asked that the hearing be adjourned so that her application could be heard concurrently with the Public Guardian’s application. The transcript recorded the following exchange:

29. [29]

    At the conclusion of the hearing, the Tribunal reserved its decision.

30. [30]

    Later that day, the Tribunal made a guardianship order in respect of AB; appointed the Public Guardian as the guardian; and ordered that the order was a continuing guardianship order for a period of one year from AB’s 18th birthday in late October 2022. The significance of the guardianship order being a continuing one is addressed later in these reasons.

31. [31]

    The Tribunal also made the following orders in respect of AB’s financial management:

32. [32]

    On 11 August 2022, the Tribunal published reasons for the orders it had made on 20 July 2022. It said, in part:

33. [33]

    The Tribunal noted, at [11], that AB’s parents had “participated in the hearing as witnesses”. It also said, at [27]:

34. [34]

    In rejecting GR’s adjournment application, the Tribunal, at [36], referred to the guiding principle in s 36(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act): to facilitate the just, quick and cheap resolution of the issues in the proceedings.

35. [35]

    The Tribunal addressed the interlocutory orders which had been made against GR as follows:

36. [36]

    The Tribunal addressed GR’s submissions on the substantive orders as follows:

37. [37]

    The Tribunal also addressed GR’s application that she should be appointed AB’s guardian, either alone, or with her uncle (AB’s great-uncle). It said:

38. [38]

    The Tribunal rejected the application on the basis of its view that it would not be in AB’s best interests. The Tribunal expressed its conclusions for granting the guardianship order as follows:

39. [39]

    The Tribunal also decided to make a financial management order, reviewable within two years as there was some prospect that, during that period, AB could acquire sufficient skills to manage his disability support pension: [170]. It also rejected GR’s application that she be appointed AB’s financial manager, either alone or with her uncle: [166]-[167].

40. [40]

    As referred to above, on 18 August 2022, this Court dismissed GR’s appeal against Sackar J’s dismissal of the appeal against the order for parental responsibility made by the Children’s Court. The order expired in late October 2022, when AB turned 18.

41. [41]

    On 19 August 2022, GR lodged a notice of appeal to the Appeal Panel against the Tribunal’s decision. She challenged orders which included the guardianship order, the financial management order and the order refusing to allow her and AB’s father to be joined as parties. Her grounds included that no reasons for the decision of 9 June 2022 had been given and that she had been denied procedural fairness as she had not been served with the material on which Ms Eldridge relied in support of her application. She also sought a stay of the guardianship and financial management orders made on 20 July 2022.

42. [42]

    In late October 2022, AB turned 18. Accordingly, the orders made by the Children’s Court as to parental responsibility ceased to have effect and the orders made by the Tribunal for his guardianship and financial management took effect.

43. [43]

    On 28 October 2022, Principal Member (PM) Suthers dismissed GR’s application for a stay. On that day, GR filed a further application for a stay of the Tribunal’s orders, which was heard by PM Suthers on 9 November 2022 and dismissed.

44. [44]

    On 4 November 2022, GR commenced the Equity Proceedings by filing a summons seeking to quash the Tribunal’s orders made on 20 July 2022 and seeking an order appointing her as AB’s guardian. On the same day, she filed an application seeking summary judgment of her application; an order that the appeal from the Tribunal to the Appeal Panel be transferred to the Supreme Court; an order that AB be restored to her custody and that she and AB be jointly represented. Directions were made on 28 November 2022 by Lindsay J for the conduct of the proceedings and the notice of motion.

45. [45]

    On 29 November 2022, PM Suthers published reasons for dismissing GR’s application for a stay: namely, that the appeal against the Tribunal’s orders was listed for hearing by the Appeal Panel on 20 December 2022 and that it was important not to leave AB without a guardian, the parental responsibility orders having lapsed in late October 2022.

46. [46]

    On 20 December 2022, the Appeal Panel (constituted by Deputy President (DP) Britton, PM I Coleman SC ADCJ and Ms Given) heard GR’s appeal. GR, who appeared on her own behalf, submitted orally, when asked about the grounds:

47. [47]

    When asked to identify the error in the joinder decision, she said that she was not given an opportunity to be heard because no one had called her and she had not been given reasons for the refusal. Mr Dalla-Pozza, who appeared for the Public Guardian, submitted that, if there had been a denial of procedural fairness in the Tribunal, the Appeal Panel could correct that error by considering whether, on a rehearing before it, the orders made by the Tribunal ought be made.

48. [48]

    During the course of the hearing, the Appeal Panel asked GR to provide it with the emails which she had sent to the Tribunal seeking reasons for its decision of 9 June 2022. The Appeal Panel also heard submissions on the application for a stay before reserving its decision on the joinder question.

49. [49]

    On 3 February 2023, the Appeal Panel refused GR’s application for a stay, refused leave to appeal against the joinder decision made on 9 June 2022, dismissed the appeal against the non-joinder and dismissed the appeal: ZZT v Public Guardian [2023] NSWCATAP 31. The Appeal Panel rejected GR’s submission that the Tribunal’s decision to proceed to determine the application for joinder in her absence amounted to a denial of procedural fairness and its failure to give reasons warranted a grant of leave. Its orders were as follows:

50. [50]

    The Appeal Panel found that GR had failed to prove that she had asked for reasons (there being no obligation on the Tribunal to provide reasons, absent a request, for an interlocutory decision) and, accordingly, she could not challenge the Tribunal’s decision on that basis: [34]. The Appeal Panel’s reasons for finding that the Tribunal had not denied procedural fairness to GR were as follows:

51. [51]

    The Appeal Panel summarily dismissed GR’s appeal against the guardianship and financial management orders (order 4 above) pursuant to s 55 of the NCAT Act on the basis that, as GR was not a party to proceedings which were heard on 20 July 2022, she had no standing to bring the appeal. It described her appeal against the Tribunal’s substantive orders as “misconceived”: [74].

52. [52]

    On 13 February 2023, the Crown Solicitor’s Office (CSO), on behalf of the Public Guardian, wrote to GR, asserting that, as GR had a statutory right of appeal to this Court against the Appeal Panel’s decision, her application for judicial review (brought in the Equity Proceedings) was an abuse of process. On this basis the CSO foreshadowed an application for summary dismissal.

53. [53]

    On 17 February 2023, GR commenced the Common Law Proceedings by filing a statement of claim, seeking the following relief:

54. [54]

    On 20 February 2023, the Public Guardian filed a notice of motion in the Equity Proceedings for summary dismissal of GR’s summons filed on 4 November 2022 pursuant to Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 13.4 or, in the alternative, that the summons be struck out pursuant to UCPR, r 14.28.

55. [55]

    On 9 March 2023, Richmond J granted leave to GR in the Equity Proceedings to file and serve an amended summons “to replead the summons dated 4 November 2022 as a summons seeking leave to appeal against the decision of the Appeal Panel made on 3 February 2023 by 15 March 2023.”

56. [56]

    When the Equity Proceedings came before Lindsay J on 16 March 2023, his Honour noted the orders made by Richmond J and also noted that GR had served a document entitled “Amended Summons (Supervisory Jurisdiction)” in which she was named as the appellant. His Honour also noted that, “as the decision of the Appeal Panel was determined by a panel of which a judge was a member any leave to appeal to the Supreme Court of NSW is assigned to the Court of Appeal subject to any order that the Court of Appeal might make for reassignment of the proceedings.” Notwithstanding his Honour’s notation, the matter was not, in fact, transferred to this Court. I understood it to have been, ultimately, common ground, that GR’s application for judicial review could only be determined by this Court because one of the members of the Appeal Panel was an acting District Court judge, which made it a specified tribunal: s 48(1)(a)(iv) of the Supreme Court Act 1970 (NSW) and Hampshire v Health Care Complaints Commission [2021] NSWCA 283 at [35] (Gleeson JA, Meagher JA and R A Hulme J agreeing).

57. [57]

    On 20 March 2023, the Registrar, by consent, extended the time for GR to file and serve an amended summons to 22 March 2023 and noted the orders made by Richmond J on 9 March 2023.

58. [58]

    On 22 March 2023, GR filed an amended summons in the Equity Proceedings seeking that the Appeal Panel’s orders made on 3 February 2023 and the Tribunal’s orders made on 9 June 2022, 20 July 2022 and 15 September 2022 be quashed and that GR be appointed AB’s legal and financial guardian. She also sought a writ of habeas corpus. In seeking to impugn the Appeal Panel’s and Tribunal’s orders, GR invoked this Court’s jurisdiction pursuant to s 69 of the Supreme Court Act rather than s 83 of the NCAT Act (which provides that an appeal lies to, relevantly, this Court by leave on a question of law from a decision of the Appeal Panel).

59. [59]

    On 27 March 2023, the Registrar made directions in the Equity Proceedings regarding the Public Guardian’s motion for summary dismissal, including that it be listed for hearing on 19 May 2023 at 10am for hearing before the applications list judge with an estimate of half a day.

60. [60]

    On 30 March 2023, Kunc J listed GR’s notice of motion filed on 4 November 2022 in the Equity Proceedings for hearing on 19 May 2023 in the applications list (together with the Public Guardian’s motion for summary dismissal in the Equity Proceedings).

61. [61]

    On 3 April 2023, GR filed a notice of motion seeking that the defences to her statement of claim in the Common Law Proceedings be struck out and summary judgment ordered. She also sought a stay of the Tribunal’s orders of 20 July 2022 and an order that AB be returned to her.

62. [62]

    On 4 April 2023, the Public Guardian filed a notice of motion in the Common Law Proceedings in similar terms to its motion for summary dismissal in the Equity Proceedings, together with an affidavit of Angus Nicholas dated 4 April 2023 in support.

63. [63]

    On 19 April 2023, Kunc J appointed Katherine Johnson as the guardian ad litem for AB in the Equity Proceedings.

64. [64]

    On 18 May 2023, the day before the date fixed for the hearing of the various notices of motion in the applications list, GR sent the following material by email to the primary judge’s associate for the purposes of the hearing on 19 May 2023:

    1. (1)

       a medical report of Dr Michael Robertson, toxicologist, dated 18 May 2023 (opining that methotrexate is known to cause infertility in males), together with his curriculum vitae; and

    2. (2)

       an email confirming that GR relied on the reports of Professor Jureidini, undated but later confirmed to have been sent on 3 July 2020, and dated 12 July 2020, and the report of Professor Einfeld dated 6 November 2020 (regarding AB’s capacity to make decisions), which were attached.

65. [65]

    At about 4pm on 18 May 2023, the primary judge’s associate informed the parties that the motion would be heard at 12.30pm on 19 May 2023 and requested that GR bring hard copies of the material on which she sought to rely to Court for the hearing. GR sent further material at 5.30pm, which included a photograph of AB taken in 2019. She foreshadowed a further application for a stay of the guardianship and financial management orders (made on 20 July 2022). GR also provided, by email sent at 6.59pm, amended submissions dated 12 September 2022 (on rescission of the Children’s Court order), and an affidavit affirmed by GR on 21 March 2023 (filed in the Equity Proceedings).

66. [66]

    The primary judge confirmed that the matters before him were:

    1. (1)

       The notices of motion for summary dismissal filed by the Public Guardian in the Equity Proceedings on 20 February 2023 and in the Common Law Proceedings on 4 April 2023; and

    2. (2)

       GR’s notice of motion filed on 3 April 2023 to have the defences in both proceedings struck out and summary judgment entered, as well as a stay of the financial management and guardianship order.

67. [67]

    In her submissions in support of her notice of motion, GR referred to the report of Dr Robertson but did not formally tender it. In opposition to the Public Guardian’s notice of motion, GR submitted that her applications (in the Common Law Proceedings and the Equity Proceedings) to set aside the financial management and guardianship orders were not an abuse of process because there had not been a statutory appeal from the Appeal Panel’s decision. She also submitted that it was necessary that this application be in the Supreme Court as she had been sent back from the Court of Appeal by the Registrar of the Court of Appeal.

68. [68]

    Mr Higgins, who appeared on behalf of the Public Guardian, read the affidavit of Mr Nicholas in support of the first notice of motion in the Equity Proceedings. When he confirmed that the affidavit read on the notice of motion in the Common Law Proceedings was identical, the primary judge ordered that the evidence in each proceeding (on each motion) would be evidence in the other.

69. [69]

    GR identified the material on which she relied, which included the report of Dr Robertson as well as her affidavit of 2 August 2022 (which was filed on 4 November 2022). However, she was unable to provide hard copies to the Court, as had been requested by the primary judge’s associate (see above). The primary judge indicated that he would find GR’s affidavit over the lunch break and read it and deliver judgment on “both the motions” at 2.30pm.

70. [70]

    In his reasons, delivered ex tempore at 2.30pm, the primary judge recounted the procedural history. His Honour referred to GR’s affidavit of 2 August 2022 but not to the material she had provided by email on 18 May 2023 (including Dr Robertson’s report). The primary judge said:

71. [71]

    This Court endeavoured to elicit agreement from the parties as to the material which was before the primary judge. It was common ground that the affidavits of Mr Nicholas and GR’s affidavit of 2 August 2022 were read on the application. However, Mr Dalla-Pozza did not accept that Dr Robertson’s report was tendered although GR referred to it in her submissions to the primary judge.

The application for leave to appeal and the appeal

1. [72]

   Prior to 5 June 2023, GR filed a summons in this Court for judicial review of the Appeal Panel’s decision and for leave to appeal against the primary judge’s orders for summary dismissal. The summons was returnable on 5 June 2023 before the Registrar.

2. [73]

   At the return date on 5 June 2023, GR sought a referral to a judge to obtain urgent relief in respect of AB. At that directions hearing, the third respondent (the NSW Trustee and Guardian) and the fourth respondent (the Public Guardian) appeared. The representative of the fourth respondent mentioned the appearance of the first respondent (the Department).

3. [74]

   In the course of the directions hearing (as is evident from the transcript, which was not included in the material before this Court but was subsequently obtained), the Registrar confirmed that GR had a statutory right under s 83 of the NCAT Act to seek leave to challenge the decision of the Appeal Panel but that the summons she had filed was, in terms, an application for judicial review (under s 69 of the Supreme Court Act). The Registrar also noted that there were eight respondents to the judicial review application.

4. [75]

   It would appear that the deficiencies in GR’s summons for judicial review had been the subject of an email sent by the Registrar to GR before the hearing on 5 June 2023. At the hearing, GR told the Registrar that if her filing fees of a fresh summons could be waived (on the basis that she had already paid the fee to file the original (defective) summons), she would file a replacement summons (for leave to appeal under s 83 of the NCAT Act) and a notice of discontinuance of her summons for judicial review. GR also confirmed that she had served a summary of argument that morning (5 June 2023) which addressed not only her challenge to the Appeal Panel’s decision of 3 February 2023 but also her challenge to the orders made by the primary judge on 19 May 2023 summarily dismissing the Equity Proceedings and the Common Law Proceedings.

5. [76]

   Later in the hearing before the Registrar, GR purported to withdraw the summons for judicial review. The respondents who had appeared (the Public Guardian and the NSW Trustee and Guardian) sought costs of the discontinued summons. At the conclusion of the hearing, the Registrar made the following orders:

   1. (1)

      Summons (for judicial review) discontinued.

   2. (2)

      Applicant (GR) to pay the third respondent’s (NSW Public Trustee’s) costs of $1,000.

   3. (3)

      Applicant (GR) to pay the fourth respondent’s (the Public Guardian’s) costs of $1,000.

6. [77]

   On 7 June 2023, GR filed a White folder in proceedings 2023/182161, which included the following documents:

   1. (1)

      a summons (dated 5 June) seeking leave to appeal from various orders, including the orders of the Appeal Panel made on 3 February 2023 and from the primary judge’s orders summarily dismissing the Equity Proceedings and the Common Law Proceedings;

   2. (2)

      the summary of argument (dated 5 June 2023), to which reference had been made at the directions hearing;

   3. (3)

      a draft notice of appeal dated 4 June 2023;

   4. (4)

      the Tribunal’s orders of 9 June 2022 (refusing GR’s joinder application);

   5. (5)

      the Tribunal’s order made on 21 December 2022 refusing GR’s application for a stay of the Tribunal’s decision of 20 July 2022;

   6. (6)

      the Appeal Panel’s reasons and orders of 3 February 2023;

   7. (7)

      the primary judge’s reasons delivered on 19 May 2023;

   8. (8)

      correspondence between GR and the Tribunal in which she requested reasons for the refusal of her joinder application;

   9. (9)

      the amended summons filed in the Equity Proceedings on 22 March 2023; and

   10. (10)

       the statement of claim filed in the Common Law Proceedings on 17 February 2023.

7. [78]

   Although there is no reference to s 83 of the NCAT Act in the summons in the White Book, it is plain, in the context of what occurred in the hearing before the Registrar on 5 June 2023, that GR intended to seek leave to appeal from the decision of the Appeal Panel under that section and no longer relied on s 69 of the Supreme Court Act. Further, GR did not join the Appeal Panel as a party to the proceedings, as would have been required for judicial review proceedings.

8. [79]

   Section 83 of the NCAT Act relevantly provides:

9. [80]

   Section 84(3) of the NCAT Act relevantly provides:

10. [81]

    That the Appeal Panel was not joined to the summons filed on 7 June 2023 is a further indication (if one be required) that GR’s intention was to seek leave to appeal under s 83 of the NCAT Act.

11. [82]

    I note that what occurred at the directions hearing before the Registrar on 5 June 2023 was not apparent to this Court on 6 September 2023, as the transcript was not included in the White Book, the Court Book or the Supplementary White Books. It can also be inferred that Ms Gleeson was not aware of it, as she had come into the matters as amici curiae relatively shortly before the hearing of the appeal. However, it was known to GR and to the Department, the Public Guardian and the NSW Trustee and Guardian as they were present either in person or through legal representatives at the directions hearing on that day. In these circumstances, this Court is entitled to have regard to what occurred at that directions hearing when construing GR's application to this Court.

12. [83]

    Thus, to the extent that, in the course of the hearing, members of this Court might have understood GR to be invoking this Court’s jurisdiction pursuant to s 69 of the Supreme Court Act, that understanding was misplaced. For the reasons given above, it is clear from the transcript of the directions hearing on 5 June 2023 and the surrounding circumstances that GR seeks to invoke this Court’s jurisdiction under s 83 of the NCAT Act to challenge the decision of the Appeal Panel.

13. [84]

    On 23 June 2023, GR filed a document entitled notice of appeal in (new) proceedings 2023/201830. In this notice of appeal, GR alleged (as was the case) that leave was not required to appeal against the dismissal of an application for a writ of habeas corpus by reason of s 101(3) of the Supreme Court Act. Thus, she was entitled to appeal as of right against the dismissal of her application for a writ of habeas corpus.

14. [85]

    The matters before this Court are:

    1. (1)

       GR’s summons (in proceedings 2023/182161) filed on 7 June 2023 (in the White Book) seeking leave to appeal pursuant to s 83 of the NCAT Act in respect of the Appeal Panel’s decision and the primary judge’s decision to summarily dismiss the Equity Proceedings and the Common Law Proceedings; and

    2. (2)

       GR’s notice of appeal (in proceedings 2023/201830) filed on 23 June 2023 in respect of the primary judge’s decision to dismiss her application in the Equity Proceedings for a writ of habeas corpus.

15. [86]

    Ms Gleeson, who appeared with Mr Hoare as amici curiae, submitted that leave to appeal ought be allowed, both appeals ought be allowed and the Court should do either of the following:

    1. (1)

       set aside the orders made by the primary judge and remit the matter to the Equity Division (Protective List) for a fresh hearing with respect to AB’s status, at which GR will have the opportunity to be heard; or

    2. (2)

       set aside the decision of the Appeal Panel and remit the matter to the Appeal Panel to be heard and determined again (with further evidence) in accordance with the directions of this Court (made pursuant to s 83(3) of the NCAT Act).

16. [87]

    The amici contended that alternative (1) was the preferable course.

17. [88]

    GR indicated, at the outset of the hearing in this Court, that she was content for Ms Gleeson to make submissions on her behalf. At the conclusion of Ms Gleeson’s submissions, GR was invited to say anything further which she wished to say. In response, GR expressed a strong preference for her matters to be determined in the Supreme Court rather than in the Tribunal and for this Court to grant a stay of the guardianship and financial management orders.

18. [89]

    GR also made factual allegations, largely concerning AB’s care and his attitude to the supervision provided by the Public Guardian. These matters were extraneous to the exercise of this Court’s jurisdiction to determine her application for leave to appeal against the Appeal Panel’s orders, her application for leave to appeal against the primary judge’s orders or her appeal against the dismissal of her application for a writ of habeas corpus. Accordingly, it is neither necessary nor appropriate for this Court to refer to them, much less determine whether they have been, or could be, made out.

19. [90]

    Mr Dalla-Pozza, who appeared on behalf of the Department, the Public Guardian, the NSW Trustee and Guardian and Westmead Hospital (the State parties) argued, in written submissions which were not augmented orally, that the primary judge was correct to dismiss both the Equity Proceedings and the Common Law Proceedings summarily as there was an alternative review mechanism (provided by s 83 of the NCAT Act), which would make it inappropriate for the Court to exercise its powers under s 69 of the Supreme Court Act or to issue a writ of habeas corpus. In the alternative, Mr Dalla-Pozza submitted that even if the primary judge’s dismissal of the writ of habeas corpus was erroneous (it being generally accepted that an application for such a writ is not generally amenable to summary dismissal), the error was immaterial since the alleged detention of AB was authorised by the prima facie lawful order made by the Tribunal on 20 July 2022.

20. [91]

    Mr Dalla-Pozza submitted, in relation to the challenge to the decision of the Appeal Panel refusing to join GR as a party to the proceedings, that it was open to Member Booby to decide that GR ought not be joined and that no error had been shown in the Appeal Panel’s decision to refuse leave to appeal against that decision and dismiss the appeal. Further, he submitted that the Appeal Panel was correct to find that GR had been given a reasonable opportunity to attend the directions hearing on 9 June 2022 and relied on the following acts of the Tribunal (referred to by the Appeal Panel at [38]-[40]):

    1. (1)

       giving GR notice on 31 May 2022 of the directions hearing on 9 June 2022;

    2. (2)

       informing GR on 8 June 2022 that the directions hearing was still going ahead;

    3. (3)

       asking GR to provide a contact number in response to her request that she be able to appear by telephone or AVL; and

    4. (4)

       telephoning the number nominated by GR in her application form.

21. [92]

    Mr Mathers, who appeared for AB (instructed by his guardian ad litem), supported the submissions made by Ms Gleeson that the Appeal Panel was in error and that GR’s proceedings ought not to have been summarily dismissed. However, he submitted that it would be preferable for the question of AB’s continuing guardianship and financial management to be determined by the Tribunal, rather than by the Supreme Court in its parens patriae jurisdiction.

Consideration

1. [93]

   GR’s challenge to the Appeal Panel’s decision was that it fell into jurisdictional error in not finding that she had been denied procedural fairness by the Tribunal and that, accordingly, the Tribunal’s refusal to join her as a party to Ms Eldridge’s guardianship application ought be set aside.

2. [94]

   I am persuaded, for the reasons which follow, that leave to appeal under s 83(1) of the NCAT Act ought be granted and the appeal allowed. Because of this Court’s role in providing guidance to tribunals, I propose to address in some detail the Tribunal’s decision, which GR challenged in the hearing by the Appeal Panel.

3. [95]

   Ms Eldridge’s application for guardianship and management orders was listed for directions on 9 June 2022. Because GR applied to be joined to the proceedings, she had an interest in being heard and the Tribunal had a corresponding duty to accord her procedural fairness before determining her application against her. As set out above, GR informed the Tribunal that she would be unavailable that day because of another court commitment. She also, shortly before the commencement of the hearing, informed the Tribunal that she was on a train and was not contactable as she had not been provided with any dial-in details. I infer from the fact that AB’s father was phoned by the Tribunal, rather than being permitted to dial-in, that the Tribunal provided such details only to parties to the proceedings and not to applicants for joinder.

4. [96]

   Given that the matter was listed only for directions, there was no apparent reason why the Tribunal could not accommodate GR by fixing the directions hearing for a time when she would be available for the hearing of her application for joinder. Her application was a significant one which had considerable ramifications, as subsequent events demonstrated. She had provided a good reason for her unavailability (being on a train after a court commitment after not having been provided with dial-in details) and had much at stake if her application for joinder was refused (the loss of the additional rights accorded to parties).

5. [97]

   Further, the fact that GR is AB’s mother and the proceedings concerned whether AB needed a guardian and financial manager, meant that it could be inferred that her contribution had the potential to assist the Tribunal to determine where the interests of AB lay. There are powerful reasons to allow a parent to be heard in proceedings which concern the guardianship of their children, including, and especially, where the issues are “grievous”: see J v Lieschke (1987) 162 CLR 447 at 457-458; [1987] HCA 4. GR’s right to be heard was best protected by her being joined as a party. She was plainly in a position where her interest in AB’s welfare (however expressed) was germane to the Tribunal’s ultimate decision on the guardianship application. Although she was not a necessary party, she was plainly a proper party. The Tribunal denied GR procedural fairness by not adjourning the directions hearing to a time when GR was available to participate and advance her joinder application. Indeed, I regard its decision not to adjourn the directions hearing as not only procedurally unfair but also legally unreasonable in the Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 sense: see also Nobarani v Mariconte (2018) 265 CLR 236; [2018] HCA 36 at [40] (Kiefel CJ, Gageler, Nettle, Gordon and Edelman JJ).

6. [98]

   In so far as the reasons of the Tribunal can be discerned from the transcript extracted above (noting that a copy of the transcript was not before the Appeal Panel), they also reveal error. The Tribunal was wrong to treat the information sought in the form provided by the Tribunal for persons who wanted to apply to become parties as amounting to submissions as to why GR ought be made a party. It ought not to have considered that, as such information did not address certain matters (such as whether AB was capable of making his own decisions and whether AB could manage his finances), her participation would not assist the Tribunal. The Tribunal also took into account the circumstance that GR could be appointed a guardian even if she were not a party (although she would not, in that event, be entitled to be provided with the documents relied on by the Public Guardian in applying for the orders). However, this did not address GR’s concern, which was to be provided with documents in advance of the hearing and to be permitted to participate fully in the hearing and, if necessary, appeal the decision at its conclusion. In order to have the benefit of these entitlements, it was necessary that she be joined as a party to Ms Eldridge’s guardianship application.

7. [99]

   The Tribunal was also wrong to conclude that it would facilitate the “just, quick and cheap resolution of the real issues in the proceedings” (s 36 of the NCAT Act) to refuse GR’s application to be joined as a party. There are many instances where it would be quicker and cheaper not to hear from parties who may be adversely affected by decisions. However, this constitutes a reason to make such person parties, with all the rights to procedural fairness that this status entails, not a reason to decline their applications for joinder. The Tribunal’s conclusion paid inadequate regard to the word “just”, which incorporates the requirements of procedural fairness (see also s 38(2) of the NCAT Act).

8. [100]

   As the transcript recorded, GR participated in the hearing on 20 July 2022. The Tribunal heard from her at length. Nonetheless, Ms Gleeson submitted that, because GR did not have the status of a party, she was denied procedural fairness in the following respects:

   1. (1)

      she was not entitled to be served and had not been served with the documents which were before the Tribunal and, accordingly, did not have notice of the material, except in so far as it could be gleaned from what was said at the hearing on 20 July 2022;

   2. (2)

      she did not have an opportunity to adduce evidence (including by way of expert reports) or, with the leave of the Tribunal to require witnesses for cross-examination, to challenge the material put before the Tribunal; and

   3. (3)

      she did not have a right of appeal against the guardianship or financial management orders.

9. [101]

   These matters resulted in “practical injustice” (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ)), including in circumstances where GR challenged the medical evidence adduced on behalf of the Public Guardian (through Ms Eldridge) and contended that she had access to opinions to the contrary, which she could put before the Tribunal.

10. [102]

    The practical injustice occasioned by the denial of procedural fairness was amplified by the circumstance that, although the Tribunal had, earlier, refused GR’s application that her application to be appointed AB’s guardian be heard together with Ms Eldridge’s application, the Tribunal nonetheless purported to deal with it by rejecting it on 20 July 2022, although GR was not a party (and therefore did not have the rights referred to above to advance her application and resist the application of the Public Guardian). This constituted an egregious denial of procedural fairness.

11. [103]

    The Appeal Panel’s reasons for finding that GR had not been denied procedural fairness are extracted above. For the reasons given above, I consider its conclusion to be erroneous. Further, the Appeal Panel’s summary dismissal of GR’s appeal against the guardianship and financial management orders demonstrated the substantial “practical injustice” she suffered as a consequence of not having been joined to the proceedings and also having her own application rejected when she was not a party.

12. [104]

    For these reasons, I am satisfied that leave ought be granted pursuant to s 83(1) of the NCAT Act to appeal against the decision of the Appeal Panel and that orders 2 and 3 ought be set aside.

13. [105]

    The significance of the Tribunal making a continuing guardianship order on 20 July 2022 is as follows.

14. [106]

    Section 7 of the Guardianship Act 1987 (NSW) defines “continuing guardianship order” as meaning:

15. [107]

    Section 16(1)(b) of the Guardianship Act requires a guardianship order to specify whether the order is continuing or temporary.

16. [108]

    Section 18 of the Guardianship Act relevantly provides:

17. [109]

    Section 25 of the Guardianship Act provides that the Tribunal may review a guardianship order of its own motion. On such a review, the Tribunal may vary, revoke, renew or vary the order. It would appear that this review is conducted within the parameters of the proceedings in which the guardianship order was made, with the consequence that the parties to those proceedings remain parties to the review application, subject to an order to the contrary.

18. [110]

    In the present case, the proceedings before the Tribunal are continuing. The current guardianship order is due to expire in late October 2023. The Court was informed by email on 7 September 2023 by the CSO (who acted for the State parties) that:

19. [111]

    Thus, GR’s application for joinder has continuing utility. If she is not joined as a party to the proceedings, she will not have the rights of a party when the Tribunal conducts its review of the guardianship order in respect of AB.

20. [112]

    For the reasons given above, I propose that orders 2 and 3 made by the Appeal Panel on 3 February 2023 be set aside on the ground that they were the result of procedural unfairness to GR.

21. [113]

    But for the fact of the imminent review of the guardianship order, I would have remitted to the Appeal Panel the joinder of GR to the proceedings before the Tribunal in order to permit GR, if she were joined as a party, to participate in the review of the guardianship order before the Tribunal. However, as the review of the guardianship order is imminent, the delay caused by a remitter to the Appeal Panel would be likely to have the undesirable consequence of delaying GR’s opportunity to apply for joinder to that review which, if successful, would entitle her to participate in that review as a party. It is only for this reason that I do not propose an order for remitter to the Appeal Panel. It is sufficient, in these circumstances, to make a declaration as to the Appeal Panel’s error.

22. [114]

    As the Tribunal which made the guardianship and financial management orders was not a “specified tribunal” within the meaning of s 48(1) of the Supreme Court Act, a single judge of the Supreme Court had jurisdiction to review the orders under s 69 of the Supreme Court Act. GR’s application for relief under s 69 was, in this respect, properly within the originating process she filed in the Equity Proceedings and Common Law Proceedings (although such matters are, under Practice Note SC CL 3 Supreme Court Common Law Division – Administrative and Industrial Law List, to be commenced by summons filed in the Common Law Division). As these proceedings were summarily dismissed by the primary judge, I propose to turn to the application for leave to appeal against the orders for summary dismissal.

23. [115]

    Leave to appeal is required as the decision to summarily dismiss proceedings is regarded as interlocutory (by analogy with s 101(2)(l) of the Supreme Court Act, which provides that leave to appeal is required from an order on an application for summary judgment): see Michael Wilson & Partners Ltd v Emmott [2021] NSWCA 315; (2021) 396 ALR 497 at [115]-[118] (Brereton JA, Leeming JA and Emmett AJA agreeing).

24. [116]

    If leave is granted, GR must establish an error in the House v The King (1936) 55 CLR 499; [1936] HCA 40 sense before this Court will intervene to set aside orders for summary dismissal: Muriniti v Lawcover Insurance Pty Ltd [2022] NSWCA 159 at [76]-[79] (Gleeson JA and Griffiths AJA).

25. [117]

    As set out above, the primary judge summarily dismissed the two proceedings as an abuse of process on the following bases (each of which was relied upon by the State party applicants):

    1. (1)

       GR had statutory rights to challenge the decision of the Appeal Panel of which she did not avail herself;

    2. (2)

       GR sought similar relief in both sets of proceedings; and

    3. (3)

       both sets of proceedings were “based on the same unsubstantiated allegations which permeate all of her proceedings for both final and interlocutory relief [which] are not sustainable on any material properly before the Court.”

26. [118]

    It is convenient to address each of the matters in turn.

27. [119]

    Clause 14 of Sch 6 to the NCAT Act makes provision for appeals to the Supreme Court from decisions of the Guardianship Division of the Tribunal or the Appeal Panel, as the case may be. Parties may appeal against an interlocutory decision of the Tribunal or Appeal Panel with leave of the Court. For any other kind of decision, including a final decision, parties may appeal as of right on any question of law, or with leave of the Court if appealing on other grounds. No right of appeal, either with or without leave, is conferred on non-parties.

28. [120]

    Thus, GR had a statutory right under the NCAT Act to seek leave to appeal against the (interlocutory) joinder decision by the Appeal Panel because she was a party to the application. In addition, she had a separate right to seek judicial review of that decision under s 69 of the Supreme Court Act. While the availability of a statutory right of appeal may be a reason why the Court would, in its discretion, refuse relief under s 69 of the Supreme Court Act (see the discussion of authorities in NSW Breeding & Racing Stables Pty Ltd v Administrative Decisions Tribunal of New South Wales (2001) 53 NSWLR 559; [2001] NSWSC 494 at [16]-[20] (Barrett J)), it does not follow that it is an abuse of process for GR to invoke the Supreme Court’s jurisdiction under that section. This is particularly so in circumstances where a statutory appeal from a decision of the Appeal Panel under s 83 of the NCAT Act lies, with leave, to the very same court (this Court if the appeal is from a specified tribunal under s 48 of the Supreme Court Act or a single judge if the tribunal is not a specified tribunal).

29. [121]

    However, because GR had no statutory right of appeal against the guardianship and financial management orders, since she was not a party, her only avenue to challenge those orders was pursuant to s 69 of the Supreme Court Act. In these circumstances, there could be no abuse of process. The only basis on which the Court could have summarily dismissed her claim for relief in these circumstances was if it were satisfied that the proceedings were frivolous (in that they had no reasonable grounds of success) or vexatious (in that they amounted to an abuse of process). Because the premise of (1) (the first basis on which the primary judge summarily dismissed the proceedings, see above) was legally incorrect, there was no proper basis to dismiss the proceedings on the basis of (1).

30. [122]

    The second basis for summary dismissal (in (2) above) was that there was a substantial overlap between the allegations and relief claimed in both the Equity Proceedings and Common Law Proceedings. So much may be accepted, in that in both proceedings GR purported to challenge the guardianship and financial management orders. However, other relief was also claimed. She invoked the parens patriae jurisdiction in the Equity Proceedings and sought damages in the Common Law Proceedings. While a rationalisation of the proceedings was called for to reconcile the relief claimed in each, the overlap (which was not complete) did not constitute a proper basis to dismiss both proceedings.

31. [123]

    The third basis (in (3) above) for the order for summary dismissal was that there was no proper basis in the material before the Court to substantiate the allegations made by GR. The positing of this criterion was erroneous. A plaintiff is not obliged to substantiate the allegations made in support of the claim in order to resist summary dismissal of the proceedings. Issues of fact are pre-eminently matters for final hearing. Summary dismissal will be refused if there is a triable issue: Wickstead v Browne (1992) 30 NSWLR 1 at 11 (Handley and Cripps JJA); [1992] NSWCA 272.

32. [124]

    Further, in any event, GR deposed in her affidavit of 2 August 2022 that AB had been subjected to mistreatment (by being prevented from going to school), imprisonment (by being locked away) and maladministration of drugs (by being given methotrexate when it was contraindicated). While more may be required to prove these matters to the requisite standard, they cannot be said to be unsubstantiated, given her affidavit (irrespective of whether Dr Robertson’s report was properly before the primary judge). The only evidence adduced by the State parties on their application for summary dismissal were the two identical affidavits of Mr Nicholas referred to above. He confined his evidence to a recitation of the procedural history of the proceedings in the Tribunal, the Appeal Panel and the Court. In these circumstances, I am not satisfied that there was any proper basis for the primary judge’s remark which is extracted at (3) above.

33. [125]

    I am satisfied that each of these errors was a House v The King error. For these reasons, appellate intervention is warranted, leave to appeal ought be granted and, subject to one matter, the primary judge’s orders ought be set aside and the notices of motion dismissed in so far as summary dismissal was sought under UCPR, r 13.4.

34. [126]

    In respect of GR’s application for the writ of habeas corpus in the Equity Proceedings, I agree, for the reasons given by Basten AJA (whose reasons I have had the benefit of reading in draft), that GR’s appeal against the dismissal of this part of the proceedings ought be dismissed.

35. [127]

    It was suggested that this Court, in the exercise of its powers under s 75A of the Supreme Court Act, ought determine the State parties’ motions, which included, in the alternative, a claim that the originating process in both proceedings ought be struck out pursuant to UCPR, r 14.28. I am not persuaded that this Court ought take this course. No arguments were made to the primary judge or to this Court by reference to UCPR, r 14.28 and no submissions made as to how, if at all, the proceedings ought be consolidated to avoid duplication. My disinclination to address deficiencies in the pleadings ought not be taken as an indication that the originating process in each proceedings complies with the UCPR. However, this Court is not best placed to address the further conduct of the proceedings. I consider that the better course is to remit the Equity Proceedings and Common Law Proceedings to a single judge in order that they can be case-managed and that the balance of the notices of motion can be heard and determined.

Further matters

1. [128]

   As referred to above, GR also sought a stay of the guardianship and financial management orders made by the Tribunal on 20 July 2022. The guardianship order will expire in late October 2023 and will be, as indicated by the CSO (see above), reviewed shortly. To grant a stay of this order or the financial management order would have the potential to leave AB without adequate guidance and support. As these orders were not directly challenged in the matters before this Court, it is not appropriate that the application for a stay be acceded to.

Costs

1. [129]

   The parties have not been heard as to costs. There is much to be said for the order proposed by Basten AJA (with whom Griffiths AJA agrees) (whose reasons I have had the benefit of reading in draft) in each of the proceedings before this Court that there be no order as to costs. I agree, subject to hearing from the parties, that such an order is appropriate and have, accordingly, included it in the orders proposed below. The parties’ rights to seek a different order are protected under UCPR, r 36.16.

Proposed orders

1. [130]

   For the reasons given above, I propose the following orders:

   1. (1)

      Dismiss the summons in so far as it seeks leave to appeal from the orders dated 9 June 2022 and 20 July 2022 of the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT).

   2. (2)

      In so far as the summons seeks leave to appeal from the decision of the Appeal Panel of NCAT made on 3 February 2023:

   3. (3)

      In so far as the summons seeks leave to appeal from the orders made by Hammerschlag CJ in Eq on 19 May 2023:

   4. (4)

      Otherwise dismiss the summons.

   5. (5)

      Make no order as to costs.

2. [131]

   BASTEN AJA: On 13 April 2022 an officer of the Department of Communities and Justice, Amy Eldridge, filed an application in the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT) for the appointment of a guardian and a financial manager for AB, to take effect upon AB attaining 18 years of age in late October 2022. The applicant, GR, is the mother of AB.

Proceedings in NCAT and Supreme Court

1. [132]

   On 9 June 2022 Senior Member Booby, in the Guardianship Division, refused an application by GR to be joined as a party to Ms Eldridge’s application. On 20 July 2022 the Guardianship Division (constituted by Senior Members Barnes and Staples and Member McGirr) appointed the Public Guardian as AB’s guardian and committed the management of his estate to the NSW Trustee and Guardian. The orders with respect to guardianship were as follows:

2. [133]

   The Tribunal also made the following orders in respect of AB’s financial management:

3. [134]

   GR sought to challenge each of these decisions by an internal appeal before an Appeal Panel of NCAT. On 3 February 2023 an Appeal Panel (constituted by Deputy President A Britton, Principal Member I Coleman SC ADCJ, and Ms Given, General Member) rejected each of the challenges and made the following orders: [1]

4. [135]

   In the meantime, on 4 November 2022, GR had filed a summons in the Equity Division (Protective List) (matter 2022/332885) seeking (amongst other orders) judicial review under s 69 of the Supreme Court Act 1970 (NSW) of four decisions of the Guardianship Division, being (i) the decision of 9 June 2022, (ii) an order of 18 July 2022 directing that her application for guardianship of AB be heard after the application filed on behalf of the Public Guardian; (iii) a direction refusing an order that the parents (including GR) be served with the evidence and material supporting the applications brought by Ms Eldridge, and (iv) an order of 15 September 2022 dismissing her own application to be appointed AB’s guardian without a hearing.

5. [136]

   The judicial review application was out of time with respect to (i)–(iii); (iv) was consequential on the decision of 20 July 2022. In any event, the Tribunal decisions were effectively superseded by the orders of the Appeal Panel.

6. [137]

   On 17 February 2023 GR filed a statement of claim in the Common Law Division (matter 2023/055012) seeking the following orders:

7. [138]

   In effect, this pleading sought four kinds of order. First, it sought to “impugn” the orders made in NCAT on 20 July 2022. That was presumably an attempt to invoke the supervisory jurisdiction of the Supreme Court, but could have been intended to commence an appeal on a question of law. Secondly, it sought an injunction against the defendants to prevent them from restraining AB any further, and a “recovery order” for release of AB to the guardianship of his mother. Thirdly, it sought damages, apparently on behalf of AB although it was not clear whether the damages claim was contingent upon setting aside the NCAT orders.

8. [139]

   On 20 February 2023 the Public Guardian filed a notice of motion seeking to have the Equity Division proceeding dismissed. On 22 March 2023 GR filed an amended summons in the Equity Division, which varied the relief sought primarily in three respects: by (i) adding to the decisions of NCAT under review, the Appeal Panel decision of 3 February 2023 (referred to as a decision of 6 February), (ii) seeking orders in the parens patriae jurisdiction and (iii) seeking a writ of habeas corpus to remove AB from “illegal, involuntary detention”.

9. [140]

   By a process which is not revealed in the papers before this Court, the statement of claim in the Common Law Division was transferred to the Equity Division. On 4 April 2023 the Public Guardian filed a notice of motion seeking to have the Common Law Division proceeding dismissed. On 19 May 2023, the Chief Judge in Equity heard both motions for summary dismissal and made orders dismissing both sets of proceedings in the Supreme Court, with costs. [3]

Proceedings in Court of Appeal

1. [141]

   Two sets of proceedings have been commenced in this Court, namely a summons seeking leave to appeal (accompanied by a draft notice of appeal) and, subsequently and separately, a notice of appeal.

2. [142]

   On 7 June 2023, GR filed a summons seeking leave to appeal from three matters, namely (i) the judgment in the Equity Division dismissing both sets of proceedings in the Supreme Court, (ii) two decisions of the Guardianship Division, on 9 June (refusal of joinder of GR) and 20 July 2022 (conferring guardianship on the Public Guardian), and (iii) the decision of the Appeal Panel of NCAT on 3 February 2023.

3. [143]

   As to (i), there is no doubt that the applicant has a right to seek leave to appeal from the summary dismissal of the proceedings in the Divisions.

4. [144]

   As to (ii), two observations should be made in relation to the proposed appeal from decisions of the Guardianship Division. First, Sch 6, cl 12 of the Civil and Administrative Tribunal Act 2013 (NSW) (“Tribunal Act”) confers alternative rights of appeal from a decision of that Division, either to an Appeal Panel or to the Supreme Court: cl 12(1). However, an internal appeal to the Appeal Panel “precludes an appeal to the Supreme Court against the same decision”: cl 12(3). Similarly, an appeal to the Supreme Court precludes an internal appeal against the same decision: cl 12(4). The appeals are as of right on a question of law, and, in the Tribunal, an appeal with leave in the case of an interlocutory decision of the Tribunal or from other kinds of decisions on other grounds.

5. [145]

   While GR had no right of appeal from the decisions of the Guardianship Division of 20 July 2022 (because she was not a party to that proceeding), she was a party to her own joinder application and hence had an entitlement to appeal the decision of 9 June 2022. As an interlocutory decision, she required (and sought) leave to appeal to the Appeal Panel. That application precluded an appeal to the Supreme Court. [4]

6. [146]

   To the extent that she had a right of judicial review under s 69 of the Supreme Court Act, applications had been made in the proceedings in the Equity Division (and possibly the statement of claim in the Common Law Division) seeking review of those decisions. Such proceedings should properly have been brought in the Common Law Division, but were in any event the subject of the summary dismissal orders made by the Chief Judge in Equity, which are also the subject of the summons seeking leave to appeal. Accordingly, the application for leave to appeal from the orders of the Guardianship Division was misconceived and should be dismissed.

7. [147]

   Secondly, absent an interlocutory order to other effect by the Supreme Court, “an appeal to the Supreme Court operates to stay the decision under appeal”. [5] While GR was never a party to the proceeding in which the guardianship order was made, it may seem remarkable that, had she been, and had she appealed to the Supreme Court from that order, the order would have been automatically stayed. Not being a party, she made various applications to stay the order, none of which succeeded.

8. [148]

   Issue (iii) was the application for leave to appeal from the decision of the Appeal Panel of 3 February 2023. Although GR was not a party to the guardianship proceeding (other than by way of her application to be joined in that proceeding) she was a party to an internal appeal to the Appeal Panel. As a party to an “internal appeal” for the purposes of s 83 of the Tribunal Act she had a right of appeal to the Supreme Court on a question of law. [6]

9. [149]

   In dismissing the proceedings in the Divisions, the Chief Judge referred to the fact that GR had a right of appeal from the dismissal of her appeal against the guardianship orders: primary judgment at [2]-[4]. Three observations may be made about that statement.

10. [150]

    First, although by a footnote the Chief Judge noted that such an appeal lay to this Court where a member of the Appeal Panel was a District Court judge (as in this case), he did not note that the jurisdiction of this Court would be engaged by the appeal in fact lodged, nor that a similar issue arose with respect to the judicial review proceeding challenging the dismissal of the appeal against the guardianship orders. On the other hand, the Chief Judge stated (adopting a submission on behalf of the Public Guardian), “they amount to an impermissible circumvention of her rights of appeal from the Tribunal to the Court of Appeal”: at [14]. Why those proceedings were not transferred to this Court is unclear, but the observation would appear to leave open the possibility of an appeal to this Court.

11. [151]

    Secondly, the judge’s comments were restricted to the guardianship order and the financial management order, each of which was made in a proceeding to which GR was not a party. That appeal to the Appeal Panel was dismissed as an abuse of process pursuant to s 55(1)(c) of the Tribunal Act. It may be doubted that GR had a separate challenge to that order, except as a consequence of a successful challenge to the refusal to join her.

12. [152]

    Thirdly, there may have been some doubt as to whether in fact GR had not appealed from the Appeal Panel decision. As noted above, the first order sought by way of relief in the Common Law Division was to “impugn” the guardianship orders of 20 July 2022. While that language is not apt to refer to an appeal against the decision of the Appeal Panel, with a litigant in person, it may have been wise to explore a little further what the intention was. Similarly, proposed order 14 in the amended summons in the Equity Division sought to “set aside the orders of the Tribunal pursuant to UCPR r 36.2(2), [for] failure to provide reasons for the orders”. It was at least possible that the basis for an order of that kind would be found in an appeal.

13. [153]

    Nevertheless, it may be that the Chief Judge was correct in assuming that no appeal had been brought from the Appeal Panel decision because such an appeal would have been lodged in the Court of Appeal Registry, not in the Registry of either Division. On that basis, subject to an extension of time and a grant of leave to appeal, it remains open to GR to pursue an appeal in this Court from the Appeal Panel’s decisions. On the other hand, the amended summons in this Court stated that the application was brought pursuant to s 101(2)(r) of the Supreme Court Act, which deals only with appeals from a judgment of the Court in a Division. The requirement for leave to appeal from a decision of an Appeal Panel is to be found in s 83(1) of the Tribunal Act.

14. [154]

    Whether there should be a grant of leave with respect to the appeal from the orders in the Supreme Court, or the orders of the Appeal Panel, will be addressed below.

15. [155]

    On 23 June 2023, GR filed the notice of appeal, seeking to invoke a right of appeal, based on s 101(3) of the Supreme Court Act, which removed the requirement for leave with respect to an appeal from a judgment given or order made on an application for a writ of habeas corpus. It may be recalled that the amended summons in the Equity Division sought the grant of a writ of habeas corpus to release AB from detention (proposed order 4).

16. [156]

    The respondents did not challenge the proposition that GR had a right of appeal from the summary dismissal of her application for habeas corpus, challenging the constraints on liberty imposed on AB by aspects of the orders made by the Tribunal. However, they did challenge the merit of the appeal, contending that summary dismissal was correct because the writ was an inappropriate procedure by which to challenge the validity of the restraints on AB’s liberty.

17. [157]

    There are numerous cases, involving both prisoners and children, in which an application for habeas corpus has been relied on as a mechanism for challenging a determination of a court or tribunal pursuant to which the applicant is detained. In Eaves v James [7] this Court considered an application by an offender who had been granted bail pending an appeal against his conviction, but the grant had later been revoked. Given the statutory scheme for reviewing decisions under the Bail Act 1978 (NSW) the Court, while expressing no concluded opinion on the matter, identified a “fundamental obstacle” which might face the applicant: [8]

18. [158]

    Similarly, observations have been made in cases involving child protection and guardianship orders. The Public Guardian referred to two cases in the Victorian Supreme Court. The first, PR v Department of Human Services [9] involved an application by the father of a child who was in the custody of the Secretary pursuant to an order made, originally, in the Children’s Court in Victoria. Osborn J noted that a writ of habeas corpus might be used to facilitate a challenge to an invalid custody order “if the evidence demonstrated such a remedy was appropriate”. [10] However, Osborn J adopted the reasoning of Deane J in Re Officer in Charge of Cells, ACT Supreme Court; Ex parte Eastman, [11] a case in which Mr Eastman had challenged the lawfulness of his arrest by seeking the issue of a writ of habeas corpus. Noting that Mr Eastman’s custody at the time of the application depended not on the authority of the warrant for his arrest, but on a series of orders made by the ACT Magistrate’s Court, Deane J stated:

19. [159]

    Osborn J in PR reached a similar conclusion based on the material before him. However, he continued:

20. [160]

    It was true that, unless joined as a party, GR had no right of appeal from the decision of the Tribunal making a guardianship order in favour of the Public Guardian. On the other hand, the respondents accepted that she had a right of judicial review of that decision by which she could seek to establish that the decision was made in excess of jurisdiction or was otherwise invalid. Given an alternative remedy which has been invoked she, or rather AB, was not without a process for challenging the decision of the specialist tribunal on which Parliament has conferred jurisdiction to determine questions of guardianship.

21. [161]

    In those circumstances, there is no utility in upholding the appeal against the dismissal of the proceeding in the Division, in so far as it sought a writ of habeas corpus challenging the validity of the current limitations on AB’s freedom. Apart from reliance on s 101(3) of the Supreme Court Act, GR had no appeal as of right to this Court. Accordingly, the appeal in matter 2023/201830 should be dismissed.

Leave to appeal from Appeal Panel

1. [162]

   Unless she was able to overturn the refusal to join her to the first instance proceedings in the Tribunal, GR had no basis to challenge orders 1 and 4 of the Appeal Panel dismissing her appeal from the guardianship and financial management orders made with respect to AB on 20 July 2022. [12] Any grant of leave to appeal must therefore be limited to order 2, refusing leave to challenge the joinder decision. [13]

2. [163]

   The power of joinder in the Guardianship Division is found in Sch 6 to the Tribunal Act, [14] cll 6 and 7 of which state:

3. [164]

   It could not be in doubt, nor was it suggested, that GR was other than a person having concern for the welfare of her son, AB, for the purposes of cl 7. At the time of the joinder application, AB was still under 18 years of age and would not turn 18 before the hearing of the guardianship application.

4. [165]

   Although the appeal is from the Appeal Panel, it is convenient to state at the outset that the Tribunal erred in its decision to refuse to adjourn the hearing of GR’s joinder application. Having obtained from Ms Eldridge a telephone number for GR and attempted to ring her unsuccessfully, the Tribunal stated:

5. [166]

   The Tribunal proceeded to address the joinder issue by reference to the form filed by GR and dismissed her application. It is clear from the last sentence of the passage of the transcript set out above that the Senior Member gave no consideration to adjourning the directions hearing, even in so far as it concerned the application by GR to join the proceedings, but treated GR as not entitled to request an adjournment. It may have been correct that, as a non-party, GR was not entitled to be heard as to the directions generally, although one reason given for not joining her was that she would be allowed to address the final hearing in any event. To say she lacked “standing” to seek an adjournment of her own application was self-evidently a denial of an important power of the Tribunal, essential to providing procedural fairness.

6. [167]

   Although the transcript of the hearing on 9 June was before this Court, it was not before the Appeal Panel. Why that was so was not explained, and may have been an omission by GR in running her appeal. Had the transcript been before the Panel it may be assumed that the error would have been identified and leave to appeal granted. In that case, the Appeal Panel would no doubt have considered the adjournment application on its merits, as in fact it did.

7. [168]

   Before the Appeal Panel GR raised several bases for seeking leave to appeal the refusal to join her as a party to Ms Eldridge’s guardianship application. The only material one for present purposes was that the Tribunal denied her procedural fairness because her application for joinder was dealt with in her absence.

8. [169]

   After setting out the procedural background, the Panel stated:

9. [170]

   Of the five factors which were said to justify the refusal to adjourn the proceedings on 9 June 2022, the first three were that she had nine days' notice of the hearing, that she was told that her application might be determined in her absence, and that the Tribunal had the joinder application which contained reasons in support of her request. With respect, neither individually nor cumulatively did these factors provide any basis for the refusal of the adjournment application.

10. [171]

    The Appeal Panel gave two other reasons. One was that GR “failed to provide an adequate explanation for her failure to attend the directions hearings [sic]”. Having noted in the previous paragraph that she had advised that she would be attending the Children’s Court and traveling home by train at the time of the directions hearing, this statement appears to involve either an error of judgment or a factual error. The evidence as to what happened on 9 June demonstrated that she was in fact on a train at 4pm that afternoon. There was no suggestion that the Children’s Court hearing was other than a prearranged listing; that is having been arranged prior to 31 May 2022.

11. [172]

    The fifth reason given by the Appeal Panel was that there was “no evidence to suggest” that she was unable, due to some disability or other factor, to participate in the directions hearing, or unable to understand that her application would be decided at the hearing. Those statements were true, but did not address the reasons for refusing an adjournment on 9 June 2022.

12. [173]

    The conclusion of the Appeal Panel that GR had been accorded a reasonable opportunity to be heard, in accordance with s 38(2) and (5)(c) of the Tribunal Act, was not a decision which recommended itself as an exercise of discretionary power on the part of the Guardianship Division. However, the question for this Court is whether it was demonstrated that the Appeal Panel erred on a question of law.

13. [174]

    There was no evidence of any urgency in dealing with GR’s joinder application, although it may be inferred that, if she were to be joined as a party, directions would need to be given to serve on her evidence filed on behalf of the applicant, together with an opportunity for her to serve evidence in response. On the other hand, the chronology of GR’s relationships with those caring for AB is well-documented in the history of the proceedings both in this Court and the Children’s Court, and was no doubt well known to those in the Department who were involved in the guardianship and financial management order applications.

14. [175]

    The original applications were lodged on 13 April and 18 May 2022 respectively by Ms Eldridge. [15] The intention was undoubtedly to have an order in place before late October 2022 when AB turned 18 years of age. However, as at 31 May, that date was still almost five months away.

15. [176]

    It appears that steps were not taken to notify GR earlier, perhaps based on the statement in the applications that there “are no family members or significant others who have been identified as appropriate to make decisions in [AB’s] best interests”. [16]

16. [177]

    As the Appeal Panel noted, GR immediately, on receiving notice of the directions hearing, requested that her application be adjourned. She repeated her request on 8 June 2022 at 11:08am, giving two reasons. The first was that she wished the matter to be adjourned until this Court had determined her appeal from a judgment of Sackar J challenging the orders in the Children’s Court; secondly, she stated that “she was unable to attend the directions hearing because she would be in the ‘Children’s Court for my s90 rescission application of the care order of FACS’”. [17] Both of these reasons, at least by inference, demonstrated that GR was at that stage seeking to wrest parental responsibility from the Minister to whom the Children’s Court had allocated it.

17. [178]

    In circumstances where the mother of a young person is known to be opposed to the application by State officers seeking the appointment of a guardian and a financial manager for her son, and in circumstances where it is known that the State officers consider the mother to be an unsuitable person to be the guardian or financial manager, the Guardianship Division would need to resolve those differences of opinion. Yet, unless the mother can be a party to the proceedings, she will not have access to the material which the State parties seek to rely upon to oppose her appointment as guardian. In those circumstances, it would seem inappropriate to reject the mother’s joinder application, at least without according her a hearing. There being no apparent reason why the application could not have been adjourned to allow her to attend, whether in person or by AVL or telephone, refusal of the adjournment was a manifestly unreasonable decision in the circumstances.

18. [179]

    On that basis it would be open to this Court to extend time, grant leave to appeal and set aside orders 2 (and 3) made by the Panel on 3 February 2023. However, there are legal and practical issues to be addressed before taking that course.

19. [180]

    The legal consideration is that if there were an error in refusing to join GR to Ms Eldridge’s application, it does not follow that the disposal of Ms Eldridge’s application was invalid. Members of the family of an adult with respect to whom guardianship and financial management orders are sought are not necessary parties to the application. The case is thus different from Minister for Immigration and Citizenship v Li, [18] where the unreasonable refusal of an adjournment application resulted in the substantive decision refusing a visa being set aside. There the procedural error resulted in the unravelling of the decision-making process, where the Court was considering a closed process. In the present case, a decision of this Court that the refusal of the joinder application was invalid may have no effect on the steps taken thereafter. It will merely require that a further decision be made, which may still be to refuse GR’s joinder application. In that case, absent some further element of procedural unfairness, the guardianship order would stand.

20. [181]

    Furthermore, even if the Tribunal determined that GR should have been heard with respect to the initial order, further steps would have needed to be taken, including the supply of the materials relied upon by the applicant in support of the guardianship order that was in fact made. There would then need to be a further hearing and possibly further evidence provided by both sides. That procedure might in practical terms affect the decision as to the future of the order; it can have no practical significance to the order which has been made and remains in force.

21. [182]

    At that point, the practical consideration becomes material. The guardianship order made in 2022 is due to expire in under four weeks. In that time, it will be necessary for the Guardianship Division to review its order and determine whether it should be continued, renewed, or allowed to lapse. [19] In undertaking that function it may be important for the Tribunal to bear in mind that there may be competing applications for guardianship and financial control and steps will need to be taken to resolve any dispute, fairly to all persons involved.

22. [183]

    This Court should make a declaration that GR’s request to adjourn her application to be joined to the guardianship and financial management applications determined on 20 July 2022 was unreasonably refused.

Other causes of action

1. [184]

   It is by no means clear to what extent the other causes of action relied upon in the summons and statement of claim filed in the Divisions turned upon the quashing of the orders conferring guardianship on the Public Guardian and financial management on the Public Trustee and Guardian. For example, order 6 in the Equity Division proceedings sought leave to invoke the parens patriae jurisdiction of the Court with respect to AB.

2. [185]

   Whilst AB was a young person within the jurisdiction of the Children’s Court, GR made several applications to invoke the parens patriae jurisdiction despite the existence of orders in the Children’s Court providing for the care and protection of AB by the Secretary. On 28 April 2020, Kunc J dismissed an amended summons in the Equity Division – Protective List. [20] In explaining the basis of the dismissal of the summons, Kunc J stated:

3. [186]

   Absent a lacuna in the arrangements with respect to AB in which the protective jurisdiction might be invoked, there does not appear to be any utility in maintaining the attempt to invoke the protective jurisdiction of the Court, which would involve the parties in extensive preparations and filing of evidence and submissions. Accordingly, in the absence of any material suggesting there are exceptional circumstances of the kind referred to by Kunc J, maintaining that cause of action would have no utility.

4. [187]

   The statement of claim in the Common Law Division (orders 4-7) sought damages for injury to AB and his property. It is clear from the pleading that the claims are made on behalf of AB. To maintain such claims a tutor would need to be appointed for AB, consistently with the orders of the Tribunal presently in force. It is not clear that GR presently has authority to maintain such proceedings.

5. [188]

   Further, the claims are based on steps taken pursuant to the guardianship and financial management orders made on 20 July 2022. Some allege misconduct in obtaining the orders. Either the orders were valid or they were not; a claim for damages is not the appropriate way to challenge the validity of the orders. It is by no means clear that other claims could be supported if the orders are valid, nor precisely what causes of action were relied on with respect to particular conduct. Summary dismissal would not foreclose properly pleaded claims being instituted by someone with authority to pursue proceedings on behalf of AB.

6. [189]

   The principles governing applications for leave to appeal to this Court are well- established. As explained by Bathurst CJ in The Age Company Limited v Liu [21] “[g]enerally speaking, it is only appropriate to grant leave in matters that involve issues of principle, questions of public importance or in circumstances where it is reasonably clear that an injustice has occurred by reason of error in the judgment, going beyond what is merely arguable”. Where the amount in issue is below the statutory threshold identified in s 101(2)(r) of the Supreme Court Act 1970 (NSW), the fact that a claim is more than merely arguable may not be sufficient; it may be necessary to demonstrate that the likely costs of the appeal will not be disproportionate to the amount in issue.

7. [190]

   Similar principles have been applied in cases involving the care and protection of children and where discretionary judgments are involved. [22] In cases where leave is required because the judgment below is interlocutory, the court will have close regard to the principle stated by Jordan CJ in In re The Will of FB Gilbert (dec’d) [23] noting the importance of maintaining a “tight rein” on interfering with orders of judges at first instance in relation to matters of practice and procedure. Although an order summarily dismissing a proceeding has an air of finality, as noted above, it will not prevent a further attempt to bring such proceedings in circumstances where no issue will arise in relation to limitation periods for some time.

8. [191]

   Where litigants in person commence multiple proceedings claiming amorphous and confused forms of relief in different jurisdictions, there is much to be said for adopting a robust approach to case management. Enough has been said in reference to the various proceedings in the Tribunal, the Common Law Division and in the Equity Division to explain why the Public Guardian sought to have both sets of proceedings in the Supreme Court summarily dismissed. Further, it may be appropriate to take a robust view as to case management where separate proceedings are commenced in different Divisions of the Court seeking both overlapping, complementary and independent relief with little regard to the appropriate jurisdiction in which to commence.

9. [192]

   The acceptance of that approach by the primary judge is also readily understandable given the limited submissions made to him. However, a preferable approach would have been to take more careful note of the nature of the relief sought and the jurisdictional constraints on the bodies to whom application was made. In circumstances where it was appreciated that jurisdiction to hear an appeal from, or the exercise of supervisory jurisdiction over, the Appeal Panel was vested in this Court, seeking to have a single judge in a Division dismiss the proceedings was misguided.

10. [193]

    If there were overlapping proceedings brought in two jurisdictions, there might have been merit in requiring the claimant to replead, rather than summarily strike them both out, unless no maintainable cause of action was disclosed. Similarly, in circumstances where judicial review proceedings had been validly commenced, the fact (if it were such) that the applicant had alternative relief available by way of appeal might form the basis of a discretionary refusal of relief, but not a basis for dismissal of the proceedings in limine.

11. [194]

    As the applicant for leave, GR bore the burden of demonstrating, not merely that the reasoning of the primary judge was inadequate to support the orders made, but that the orders should not have been made. It was necessary for her to establish that there was some substantial basis not to summarily dismiss the proceedings, and that the dismissals would cause her a real injustice. To consider that element, it is necessary to address the nature of the relief sought in the two sets of proceedings commenced in the Divisions. Nevertheless, once the challenges to the orders of the Tribunal and the Appeal Panel have been addressed, it may be seen that there is insufficient prospect of a favourable outcome of the claims in equity or common law to warrant a grant of leave to appeal.

12. [195]

    While it is true that the Guardianship Division appeared to refuse to adjourn the directions hearing on the basis that GR lacked standing to seek an adjournment, a reason which could not apply with respect to the joinder application itself, the decision to refuse joinder was reviewed by the Appeal Panel. By analogy with the reasoning in Wishart v Fraser, [24] the Appeal Panel decision superseded that of the Guardianship Division with the consequence that judicial review of the first instance decision was no longer available.

13. [196]

    The same reasoning may not be applicable to the decision of 20 July 2022 with respect to the guardianship and financial managements orders, as the applicant had no right of appeal from that decision and her purported appeal was dismissed on the basis that it was incompetent. Nevertheless, the applicant had no basis on which to appeal the guardianship and financial management orders, except that her joinder application was wrongly refused. A timely acceptance of that contention would have led to a reconsideration of her joinder application, but not necessarily a favourable outcome. As a practical matter, any attempt to review the guardianship and financial management orders in May 2023 lacked utility. Similarly, to reconsider the summary dismissal order in relation to that aspect of the proceedings would lack utility.

14. [197]

    The amended summons sought orders appointing GR as the legal and financial guardian of AB, a “recovery order” for AB and his possessions in favour of GR, together with various procedural orders which are of no present consequence. Orders such as one seeking a grant of leave to challenge the deprivation of liberty of AB under the United Nations Convention on the Rights of Persons with Disabilities did not engage any relevant jurisdiction of the court.

15. [198]

    For reasons already explained, the application for habeas corpus was misconceived and was appropriately dismissed. The same is true of the proposed “recovery order”.

16. [199]

    It follows that there was no basis identified in this Court for interfering with the order summarily dismissing the amended summons in the Equity Division.

17. [200]

    As noted above, the statement of claim sought relief primarily by way of challenge to the guardianship and financial management orders of 20 July 2022 and relief consequential thereon, namely the grant of an injunction restraining the defendants from taking steps based on their entitlements under those orders with respect to AB, and a “recovery order” for AB to his mother. For reasons already articulated, that relief is either unavailable or lacks utility.

18. [201]

    The second category of relief related to damages sought on behalf of AB, which, as also explained above, appears to depend on the invalidity of the guardianship and financial management orders and, in any event, is not presently available to the applicant, who does not have authority to act for AB.

19. [202]

    It follows that the order summarily dismissing the statement of claim has not been shown to be erroneous on any basis which is more than merely arguable. If leave were to be granted, the appeal would be dismissed because the order for summary dismissal should not be set aside. Leave to appeal should be refused.

Orders

1. [203]

   Given the unsatisfactory aspects of the proceedings in the Tribunal addressed above, and the unrefined approach of the Public Guardian’s motions seeking summary dismissal of the proceedings in the Supreme Court, it is inappropriate to order that either party pay costs. The Court is indebted to counsel who appeared as amici curiae for their assistance.

2. [204]

   In my view the Court should make the following orders:

   1. (1)

      Dismiss the appeal.

   2. (2)

      Refuse the applicant leave to appeal from the decisions and orders made in the Guardianship Division of the Tribunal on 9 June 2022 and 20 July 2022.

   3. (3)

      With respect to the application for leave to appeal from the decision and orders of the Appeal Panel made on 3 February 2023:

   4. (4)

      Refuse the applicant leave to appeal from the judgment and orders made in the Equity Division on 19 May 2023.

   5. (5)

      Otherwise dismiss the summons filed 7 June 2023.

3. [205]

   GRIFFITHS AJA: I have had the considerable benefit of reading in draft the reasons for judgment of both Adamson JA and Basten AJA. I am grateful to them both for setting out the relevant factual, procedural and statutory background. I will adopt the abbreviated terms as used by Adamson JA.

4. [206]

   Self-evidently, the proceedings have an unfortunately long and complicated history. The resolution of the present matters has not been assisted by the multiplicity of rolling proceedings commenced by GR, many of which overlap in varying respects and seek relief which was refused in earlier proceedings.

5. [207]

   The need to determine GR’s multiple applications has taken up a substantial amount of time in the various jurisdictions which she has accessed. Although those applications (which in turn have spawned other related applications by the Public Guardian) have been dealt with expeditiously, a significant practical consideration relating to the present proceeding, as pointed out by Basten AJA, is the fact that the continuing guardianship order made by the Guardianship Division on 20 July 2022 will need to be reviewed by the Guardianship Division soon because it will expire in late October 2023. It will be necessary to return and discuss in a little more detail the statutory process of review under s 25 of the Guardianship Act. That process has an important bearing on the relief which should be granted to GR.

GR’s summons seeking leave to appeal filed on 7 June 2023

1. [208]

   It is convenient first to address GR’s evident intention to seek leave to appeal the Appeal Panel’s orders dated 3 February 2023, before turning to consider her application for leave to appeal inter alia the summary dismissal of her proceedings in the Equity and Common Law Divisions.

(a) The proceeding under s 83 of the NCAT Act concerning the Appeal Panel’s orders dated 3 February 2023

1. [209]

   For present purposes, it is desirable to focus upon the heart of the matter raised by one part of the summons seeking leave to appeal in 2023/182161 (filed on 7 June 2023). This concerns GR’s grievance with the Appeal Panel’s rejection of her challenge to the Tribunal’s decision dated 9 June 2022 refusing her application to be joined as a party in Ms Eldridge’s applications for the appointment of a guardian and financial manager for AB. I respectfully agree with the reasons of both Adamson JA and Basten AJA as to why the Appeal Panel erred in not finding that GR had been denied procedural fairness. I also agree with both their Honours that the decision not to adjourn the hearing of GR’s application for joinder to a day which was convenient for her to appear was legally unreasonable in the sense described in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18. This taints some of the Appeal Panel’s orders dated 3 February 2023, particularly Orders 2 and 3 which concern the joinder.

2. [210]

   As Basten AJA has pointed out, the Appeal Panel did not have the benefit of reviewing the transcript of the Tribunal’s directions hearing dated 9 June 2022, which sets out the reasons for both refusing to adjourn that part of the directions hearing relating to GR’s joinder application and then proceeding to refuse GR’s application for joinder in her absence. Both these decisions were in error.

3. [211]

   On the assumption that, in her summons filed on 7 June 2023 (in which the Appeal Panel is identified as a relevant decision maker) GR seeks both an extension of time and leave to appeal under s 83(1) of the NCAT Act in respect of the Appeal Panel’s Orders 2 and 3 dated 3 February 2023, time should be extended and leave should be granted.

4. [212]

   It is necessary to say something more about the consequential relief to which GR is entitled and, in particular, whether or not the orders dated 20 July 2022 by the Tribunal (as affirmed on appeal to the Appeal Panel) should be disturbed.

5. [213]

   The guardianship orders dated 20 July 2022 ordered that the Public Guardian be appointed AB’s guardian. This was a continuing guardianship order for a period of one year from AB’s 18th birthday in late October 2022. Under s 16(1)(b) of the Guardianship Act, a guardianship order must specify whether the order is continuing or temporary. Moreover, subject to exceptions which are not relevant here, a continuing guardianship order has effect (where it is an initial order as is the case here) for such period not exceeding one year from the date when it is made, as specified in the order.

6. [214]

   Given the imminent expiration of the existing guardianship order, it is relevant to now consider the statutory process under s 25 of the Guardianship Act for reviewing such an order. Section 25 relevantly provides:

7. [215]

   As Adamson JA has noted, the Court was advised that the normal practice is for the Tribunal to publish a notice of listing specifying the date, time and place for the review of a guardianship order. The review is taken to have commenced on the date of such notice of listing. Furthermore, the extant guardianship order is taken to be extended until the review is completed (see s 25(6)).

8. [216]

   The Court was informed that the Public Guardian had not yet received a notice of listing in relation to the current guardianship order affecting AB. It is probable, however, that the review will soon be conducted. Presumably, GR will seek to be joined as a party to that review. It will be a matter for the Tribunal to decide whether to grant any such application. No doubt the Tribunal will pay careful attention to the reasons for judgment of this Court regarding the Tribunal’s earlier decisions.

9. [217]

   For the reasons given by Basten AJA, there is no basis to set aside the existing guardianship and financial management orders. It is also difficult to see any utility in remitting GR’s application for joinder to the Appeal Panel given the imminent review of the existing guardianship order, which is a distinct (albeit related) statutory process to that which applied to the consideration and determination of Ms Eldridge’s application. I consider that it is appropriate and sufficient to set aside Orders 2 and 3 of the Appeal Panel’s orders dated 3 February 2023 and make a declaratory order to the effect that the Appeal Panel erred in not accepting GR’s contention that the Tribunal’s decisions dated 9 June 2022, refusing to adjourn that part of the directions hearing relating to GR’s joinder application and proceeding to refuse her joinder in her absence, were legally unreasonable and resulted in a denial of procedural fairness.

10. [218]

    In the event that GR is joined as a party to the future review, I consider that the Tribunal has available to it sufficient powers to ensure that GR’s involvement as a party is not allowed unduly to disrupt the efficient conduct of the review. The content of procedural fairness requirements varies according to a range of considerations, including the personal conduct of the person concerned.

11. [219]

    For completeness, I respectfully agree with Basten AJA’s reasons why GR should not have leave to appeal from the decisions and orders dated 9 June 2022 and 20 July 2022 of the Tribunal.

(b) GR’s challenge to summary dismissal orders

1. [220]

   Turning now to GR’s challenges to the summary dismissal of her proceedings in both the Equity and Common Law Divisions, I make the following observations. First, I respectfully agree with the reasons given by Basten AJA for dismissing GR’s appeal in proceeding 2023/201830 in so far as it relates to GR’s application for a writ of habeas corpus in her amended summons in the Equity Division.

2. [221]

   Secondly, I consider that the balance of the notice of appeal filed on 23 June 2023 should also be dismissed in so far as it seeks relief which is also sought in the substantive proceedings in the Equity and Common Law Divisions.

3. [222]

   Thirdly, continuing her practice of bringing multiple proceedings in respect of the same matters, it may be noted that GR sought leave to appeal against the summary dismissal decisions in her summons seeking leave to appeal (filed on 7 June 2023), but then subsequently filed a notice of appeal on 23 June 2023 in which she sought to challenge inter alia the summary dismissal orders. The notice of appeal wrongly asserted that the President had ordered on 19 June 2023 that there be a concurrent leave and appeal hearing.

4. [223]

   Because the summary dismissal orders are interlocutory in nature, GR needs leave to appeal, pursuant to s 101(2)(e) of the Supreme Court Act, the orders made by Hammerschlag CJ in Eq on 19 May 2023 in so far as they relate to the summary dismissal of the proceedings in the Equity Division (other than in relation to the writ of habeas corpus) and the Common Law Division. I have proceeded on the basis that GR seeks leave to appeal against the summary dismissal orders under her summons filed on 7 June 2023.

5. [224]

   Fourthly, I respectfully agree with the reasons of Adamson JA as to why GR should have leave to appeal against those orders. I also respectfully agree with her Honour’s reasons for allowing the appeal in those proceedings and setting aside the orders dated 19 May 2023.

6. [225]

   As to appropriate relief, I respectfully agree with Adamson JA as to why the respective proceedings in the Equity and Common Law Divisions should be remitted to the Equity Division to be allocated to a single judge for case management who, no doubt, will have regard to this Court’s reasons for judgment. It will be a matter for GR to determine the extent to which she wishes to progress those proceedings having regard to the outcome of the proceedings in this Court.

Orders

1. [226]

   Having regard to the history of the matter and the unsatisfactory aspects of the parties’ conduct of the proceedings to date, I respectfully agree with Basten AJA that each party should bear their own costs.

2. [227]

   For these reasons, I consider that the Court should make the orders proposed by Adamson JA.