DK v The Public Guardian and RT

Mr P (a pseudonym) is a Chinese businessman in his sixties. The plaintiff, DK, is his current wife. The second defendant, RT, is his daughter by a previous marriage. Without disrespect, I shall refer to them as the “Wife” and the “Daughter” respectively.

In early 2017, Mr P was visiting Sydney from his home in Shanghai. Unfortunately, he suffered a major stroke which left him seriously physically and mentally disabled. Because of disputes between his family members (some of whom were not even aware of each other’s existence), the hospital caring for him applied to the Civil and Administrative Tribunal of New South Wales (“NCAT”) for the appointment of a guardian for Mr P. The first defendant, the Public Guardian, was appointed.

Mr P’s condition has stabilised, and he is receiving full-time care in a nursing home in Sydney. The Wife wants to repatriate Mr P to Shanghai where she says that she will care for him. The Daughter wants to repatriate Mr P to Taiwan, where she says she and his family (including his first wife) will care for him. In December 2017, the Public Guardian decided that issue in favour of the Daughter.

The Wife was dissatisfied with the Public Guardian’s decision. However rather than pursuing the statutory process of review from the decision of the Public Guardian at NCAT, the Wife commenced these proceedings in this Court. They were styled as an appeal from the Public Guardian’s decision. It also appears that the form of the summons led the Court’s registry into the belief that this was an appeal from a decision of NCAT. They are neither. As was frankly conceded by the Wife’s counsel at the outset of the hearing, these proceedings are, in fact, an attempt to invoke the Court’s parens patriae jurisdiction.

The Wife urged that this was a case where the parens patriae jurisdiction should be exercised, and a decision made that Mr P be repatriated to Shanghai. The Public Guardian was neutral on the question of whether the jurisdiction should be exercised, providing submissions about what orders should be made if it was, and otherwise submitted to the Court’s decision on the merits, should such a decision be made. The Daughter argued that there was no basis for the jurisdiction to be exercised but that, if it was, Mr P should be repatriated to her and her family’s care in Taiwan. Because of the view to which I have come, this judgment is confined to whether the parens patriae jurisdiction should be exercised. I expressly refrain from making any comments on the merits of the question as to where Mr P should be repatriated.

Where there is a statutory process of appeal in relation to a decision about a child or incapable person, this Court will only allow that process to be avoided, or “leapfrogged,” by relying on the parens patriae jurisdiction in exceptional cases. This is not such a case. Neither Mr P’s current state of health nor any other circumstance warrants the urgent or extraordinary intervention of this Court and the bypassing of the legislative scheme for review of the Public Guardian’s decision. The evidence discloses that NCAT would be able to hear a review application from the Public Guardian’s decision, if necessary, this week or next week.

The Court’s primary concern must be and is for Mr P’s welfare. However, where there is no demonstrable prejudice to Mr P’s welfare by, and in effect, insisting upon the review procedures being observed (other than delay in and of itself) and, no other exceptional circumstances being demonstrated to warrant exercise of the parens patriae jurisdiction, the Court has decided to stay these proceedings to enable the matter to be dealt with by NCAT.

Mr T Morahan of Counsel appeared for the Wife, Ms M Neville of Counsel appeared for the Public Guardian, and Mr M Byrne of Counsel appeared for the Daughter.

The facts relevant to the question of the parens patriae jurisdiction were not in dispute and I set out my findings in what follows.

In late December 2016, Mr P decided to come to Sydney from Shanghai for a short break from work. The Wife remained in Shanghai.

On 18 January 2017, Mr P flew from Shanghai to Sydney.

On the night of 21/22 January 2017, Mr P suffered a large intraventricular haemorrhage filling almost the entire left lateral ventricle. He was taken to hospital in a coma.

The Wife and the Daughter both came to Sydney on learning of Mr P’s illness. They had not previously known of each other’s existence. To put matters neutrally, they did not get along, especially in matters relating to Mr P’s care.

Because of the dispute between the Wife and the Daughter, Mr P’s hospital applied to the Guardianship Division of NCAT. A temporary guardianship order for Mr P was made in favour of the Public Guardian. That order has been extended and varied several times.

Mr P slowly recovered, but the extent of the physical and mental consequences of his stroke meant that he was assessed as not being a candidate for rehabilitation.

On 28 April 2017, under the authority of the Public Guardian, but with the consent of the Wife and Daughter, Mr P was moved to a high-care nursing home (the “Home”) where he remains.

The currently operative guardianship order in respect of Mr P was made on 12 October 2017, and confers these functions on the Public Guardian:

On 1 December 2017, the Public Guardian made this decision (the “Decision”):

The Decision included:

On 3 January 2018, the Public Guardian provided reasons for the Decision. Those reasons included:

The Wife did not ask for an internal review of the Decision, nor did she approach NCAT. Instead, she filed a summons in this Court, which stated:

The summons listed the New South Wales Trustee and Guardian as the first defendant, but an amended summons was filed on 22 March 2018 with the only change being to substitute the Public Guardian as first defendant.

Mr P:

Associate Professor Chanaka Wijeratne, consultant psychiatrist, whose ultimately uncontroversial evidence forms the basis of some of the findings in the previous paragraph, examined Mr P. I asked Dr Wijeratne to describe his observations of Mr P, which I accept:

At the start of the hearing, I informed the parties that my chambers had been in touch with NCAT to ascertain when a review from the Decision could be heard. Ultimately, I asked the parties to contact NCAT. Mr Morahan informed the Court of the outcome of those enquiries and the parties agreed that the following could be treated as evidence in these proceedings:

It was common ground that Mr P’s condition has stabilised. Regrettably, he is not a candidate for rehabilitation. The task ahead is to keep him comfortable and well. Importantly, there is no evidence and it was not suggested that:

The legislature has established a process of review of the decisions of the Public Guardian. Except at its final stage (appeal to the Supreme Court by leave on a question of law only), it is important for present purposes to note that every stage of the review is, in effect, a merits review with fresh evidence able to be adduced. A different decision can be substituted for that of the Public Guardian. In what follows, I gratefully acknowledge the assistance I have derived from Ms Neville’s detailed written submissions on this topic.

The starting point is a request for reasons from the “administrator” (the definition of which the Public Guardian meets) who made the original decision, as occurred in this case, see ss 8 and 49 of the Administrative Decisions Review Act 1997 (NSW) (“ADR Act”):

If the decision is still disagreed with, “an interested person may apply for an internal review” of “an administratively reviewable decision” within 28 days (or a later date as allowed) of receiving the reasons: ss 53(1), (2)(d)(i), ADR Act; to be conducted by an individual other than the original decision-maker: s 53(3), ADR Act. The internal reviewer has the right to exercise the same functions as the original decision-maker: s 53(5A), ADR Act; and may affirm, vary or set aside the decision and make a decision in substitution: s 53(5), ADR Act. In reviewing a decision, the internal reviewer is to consider any relevant material submitted by the applicant: s 53(4), ADR Act. The review must be completed and the applicant notified within 21 days: s 53(6). Reasons must be disclosed: s 53(7), ADR Act. The internal review is taken as finalised when the applicant is notified: s 53(9), ADR Act.

The definition of “an administratively reviewable decision” includes decisions “made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation” (relevantly here the Guardianship Act 1987 (NSW), s 80A): s 6(2) and s 7 ADR Act; and s 30, Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”).

Section 80A of the Guardianship Act (with the relevant procedure provided by s 55 of the ADR Act) enables an interested person to apply to the Administrative and Equal Opportunity Division of NCAT for administrative review of the internal review decision:

Section 55 includes:

In determining an application for administrative review the Tribunal can affirm, or vary, or set aside the administratively reviewable decision and make a substitute decision, or remit the matter for reconsideration by the original decision-maker “in accordance with any directions or recommendations of the Tribunal”: s 63(3), ADR Act. It may exercise all of the functions conferred on the original decision-maker: s 63(2), ADR Act; and is to decide what the correct and preferable decision is having regard to the material then before it including any relevant factual material and any applicable written or unwritten law: s 63(1), ADR Act.

At any stage of proceedings to determine an application for an administrative review, the Tribunal may remit the decision for further consideration to the administrator who made the administratively reviewable decision (that is, the internal reviewer in the preceding step): s 65, NCAT Act. Where the decision is so remitted, the internal reviewer may affirm, or vary, or set aside the internal review decision and make substitute decision: s 65(2), NCAT Act. The applicant may then proceed with or withdraw their application for review of the decision as varied (in the case of a varied decision) or of the new decision (in the case of a decision in substitution): ss 65(4) and (5), NCAT Act.

An appeal against a decision of the Tribunal then lies with the internal appeal jurisdiction of NCAT: s 32(1)(a), ss 80 and 81, NCAT Act. An appeal against a decision of the Tribunal is to be made to an Appeal Panel, relevantly “as of right on any question of law, or with the leave of the Appeal Panel, on any other grounds”: ss 80(1) and (2)(b), NCAT Act.

The Appeal Panel may deal with the internal appeal by way of a new hearing and, as appropriate, permit fresh evidence or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance: s 80(3), NCAT Act.

Section 81 of the NCAT Act provides:

With some not presently relevant exceptions, any decision made by Appeal Panel in an internal appeal is an appealable decision of NCAT: s 82, NCAT Act.

An appeal to this Court from an appealable decision (as defined in s 81(1)(a), NCAT Act) is available with leave of the Court and on a question of law only: NCAT Act s 83(1). However, the potentially restraining effect of s 34 of the NCAT Act must be noted (see paragraph [42] below).

In what follows, I set out a number of authorities which consider when the parens patriae jurisdiction may be exercised. Their effect may be summarised as being that where there is an existing statutory or other legal regime to protect an incapacitated person, the parens patriae jurisdiction will only be exercised in exceptional circumstances. While the class of exceptional circumstances is not closed and is entirely dependent on the facts of a particular case, the most common example of such circumstances is some lacuna or other inadequacy in the statutory or legal regime, including excessive delay, which jeopardises the interests of the incapacitated person and is not otherwise able to be remedied.

A policy by superior courts of deference to, or non-interference in, the processes (appellate or otherwise) of lower courts and tribunals is well entrenched in the law. So it was that in Algoni Pty Ltd v Retail Trade Industrial Tribunal (1987) 23 IR 180, the Court of Appeal said (per Kirby P; Mahoney and Clarke JJA agreeing) (at 184–185):

Closer to the circumstances of the present case, the same policy appears in s 34 of the NCAT Act:

The relationship between the statutory and inherent powers of the Court in protective matters has been discussed in a number of considered and, if I may respectfully say so, learned judgments of the current Protective List Judge, Lindsay J. For example, in P v NSW Trustee and Guardian [2015] NSWSC 579, his Honour said (and I respectfully adopt):

Turning to the question of what might constitute exceptional circumstances, the starting point is the decision of Palmer J in Re Victoria [2002] NSWSC 647; (2002) 29 Fam LR 157. In that case, his Honour declined to exercise the parens patriae jurisdiction but took other steps to address the two and a half year delay in the resolution of Children’s Court proceedings. His Honour said:

In Re Frances and Benny [2005] NSWSC 1207, Young CJ in Eq, as his Honour then was, said (emphasis added):

This last quoted dictum was, for example, approved by White J (as his Honour then was) in Re Frieda and Geoffrey [2009] NSWSC 133 at [45]; (2002) 40 Fam LR 608:

Mr Morahan submitted that this was an unusual case in which exceptional circumstances had been demonstrated. Mr Byrne submitted to the contrary.

In answer to an early question of mine during his opening, Mr Morahan candidly submitted that there were two reasons why the Court should now entertain these proceedings.

First, he said that the Wife had approached the Court because the dispute would have got to this Court in any event. This was a case where the enmity between the parties meant that all of the appeal avenues would ultimately have been exhausted.

I do not think this first reason is an exceptional circumstance within the meaning of the authorities I have set out above. It is a circumstance that could describe much litigation. In any event, had the review process been followed, the matter would only have come to this Court by leave on a question of law. By seeking to invoke the parens patriae jurisdiction, the Wife is asking for a hearing on the merits. The legislative scheme is predicated on the merits being resolved by NCAT.

The second reason advanced by Mr Morahan was, putting it less elegantly than he did, that the parties were “in Court and ready to go” and the parties should not now be subjected to the further delay if the Court declined to exercise jurisdiction. That is not an exceptional circumstance but is a situation entirely of the Wife’s own making. It is the litigious version of the adage that it is sometimes better to ask forgiveness than permission. It is an appeal to the Court’s well-known preference, consistent with s 56 of the Civil Procedure Act 2005 (NSW), to avoid delay and minimise expense. However, in this case, it is ultimately a self-serving submission that should be resisted when it comes from a party that has taken the chance, for whatever reason, to attempt to bypass the statutory review scheme in the hope of demonstrating the requisite exceptional circumstances. In any event, it is clear (see paragraph [25] above) that NCAT can hear the matter very promptly.

In final address, I understood Mr Morahan’s articulation of the exceptional circumstances to be:

I do not agree that either of these is an exceptional circumstance in the requisite sense. Without limiting what can constitute exceptional circumstances, it is clear from the authorities to which I have referred above that exceptional circumstances generally relate to some failure or inadequacy (including legislative lacuna or procedural delay) in the relevant statutory scheme, alongside which the parens patriae jurisdiction undoubtedly exists. There is no such failure or inadequacy here. The review scheme is just as well able to deal with Mr P’s situation as for an Australian. Mr P’s foreign status or accidental presence in Australia are not bases to claim some form of exemption from Australian law.

Nor is it an exceptional circumstance that there is only one decision to be made. As the parties agreed, and the fact of a three-day hearing has demonstrated, the question on the merits of Mr P’s place of repatriation is a difficult one. However, it is also classically one for which the guardianship regime, including review of its decisions by NCAT, is well-suited as a specialist jurisdiction with an emphasis on informality of procedure, accessibility and, as far as possible, speed. Absent the fact that Mr P is a foreign citizen, this dispute is one which this Court has seen played out in relation to incapacitated Australians: by and with which family member should the person be cared for and live? More importantly, it is a kind of dispute which I am confident is not one to which NCAT is a stranger.

I have not reached my conclusions lightly. These reasons have been delivered ex tempore to minimise any delay in the parties approaching NCAT. I have carefully considered whether it would be a triumph of form over substance to, in effect, insist that the review procedures be observed when the parties were “here and ready to go” and that there would be delay and additional expense in getting to a resolution of merits if the matter is to be dealt with by NCAT.

The essence of the parens patriae jurisdiction in cases such as these is that, in exceptional circumstances, the public interest in the proper observance of the regulatory scheme will yield to whatever is in the best interests of the incapable person. However, absent exceptional circumstances, the regulatory scheme should prevail.

I have kept Mr P’s best interests at the forefront of my considerations. Had the Wife been able to demonstrate any prejudice to Mr P from the decision to which I have come — other than delay in and of itself — then the outcome would almost certainly have been different. In reaching my conclusion, I also have not overlooked three other matters put by Mr Morahan in his thorough submissions.

First, on the question of prejudice, he drew attention to general principles (e) and (g) under s 4 of the Guardianship Act 1978 (NSW) as important considerations relevant (as a matter of common sense rather than law) to the present situation:

He submitted that while Mr P was undoubtedly well-cared for at the Home, he was, in effect, a stranger in a strange land. He was separated from his family, cultural and linguistic environment. The Court, he submitted, should not permit that to continue.

The force of that otherwise attractive submission is blunted by the medical evidence of Mr P’s severely limited cognition. In any event, in all the circumstances, and especially in the absence of any proven adverse health or financial consequences of any delay, it does not outweigh the public interest in avoiding the bypassing of the review scheme.

Second, Mr Morahan submitted that there was clear evidence of two incidents of abuse or exploitation of Mr P by the Daughter and her mother. These concerned getting Mr P to sign purported Chinese legal documents and take part in the video link to some kind of Chinese pre-trial procedure in Shanghai.

I do not propose to make any findings about those matters. They will undoubtedly be ventilated in NCAT. If the Public Guardian does not consider she has power to liaise with the Home about the circumstances in which people can have access to Mr P in the Home, that can be raised by the Wife or the Public Guardian at the next review of the guardianship order, which I am informed is scheduled for 7 November 2018.

Third, Mr Morahan submitted that the Daughter had not raised any objection to the Wife’s proposed reliance on the parens patriae jurisdiction until her submissions were served on the last business day before the hearing. While this may be relevant to costs (see paragraph [69] below), I do not accept this somehow now prevents the Daughter from taking the point or provides a basis (exceptional or otherwise) for the parens patriae jurisdiction to be exercised.

The question remains as to how best to give effect to the Court’s conclusions. The parties should, unless they are able to come to some other agreement, now proceed to engage the review procedures in NCAT. As was made clear (see paragraph [25] above), that can be done using the materials prepared for the hearing before me. NCAT “is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice”: s 38(2), NCAT Act. Accordingly, if it wishes, NCAT will also be able to have regard to the transcript of evidence and submissions before me, as well as evidence which I have rejected (because this Court is bound by the law of evidence).

I also note that this should not be a case where an internal review is any longer required. While it is a matter for the member of NCAT, speaking for myself, it seems clear that in order to protect Mr P’s interests from any unnecessary further delay, and there being no prejudice to any party from the delay caused so far by the conduct of these proceedings, NCAT has a proper basis to proceed as soon as possible (cf s 55(4)(b) of the ADR Act set out in paragraph [32] above).

Nevertheless, keeping Mr P’s best interests firmly in mind, I do not propose in the first instance to dismiss the amended summons. I will stay these proceedings for a time to enable the review process to be worked through, while keeping open the prospect of these proceedings being reactivated should something happen which might constitute an exceptional circumstance. However, for good order, and in the hope that the question of Mr P’s future place of residence can be resolved within that time, I will order the proceedings dismissed with effect one year from now (subject to any further order of the Court).

I have now heard argument as to the costs of these proceedings. Mr Morahan submitted that, in accordance with what he described as “the usual practice in protective matters”, there should be no order as to costs. The Public Guardian does not seek her costs. The Daughter, however, does seek her costs of the proceedings.

The question of costs in the protective jurisdiction, albeit in a slightly different legislative context, was considered by Lindsay J in CAC v Secretary, Department of Family & Community Services (No 2) [2015] NSWSC 344. His Honour there identified the essential question as being, “What is the costs order which, in all circumstances, seems proper?”:

In determining the question of costs, at least as between the Wife and the Daughter, these proceedings, like so much of their interaction in relation to Mr P, were undoubtedly conducted adversarially. The Wife has lost. In addition to those considerations, the matters relevant to the exercise of the Court’s discretion on costs are:

Mr Morahan laid particular emphasis on the fact that at no time until the filing of her submissions did the Daughter make any complaint or take any steps in response to the effect that these proceedings should not continue. There is force in that submission. On the other hand, the Wife is not immune from criticism by reason of the, putting it neutrally, opaque nature of the case as appeared in her summons and amended summons. It also remains the case that, having conducted the hearing in reliance on the parens patriae jurisdiction, the Wife has failed to persuade the Court that the jurisdiction should be exercised.

Taking all of those matters into account and asking the question “what is the costs order which, in all circumstances, seems proper?” I have reached the conclusion that there ought to be no order as to costs of the proceedings up to and including 5 October 2018, but that thereafter the Wife should pay the Daughter’s costs of and incidental to the proceedings on and from 6 October 2018 up to and including today. The significance of 5 October 2018 is that is the day on which (in the afternoon) the Daughter’s submissions were served objecting for the first time to the exercise of the parens patriae jurisdiction.

The Court’s orders are: