F v NSW Trustee and Guardian

At the conclusion of the hearing of these proceedings on 26 September 2017, I delivered short, oral reasons for judgment, expressly reserving (with the concurrence of all parties) a right to supplement them in written reasons to be published subsequently.

An object in taking that course was to provide to the plaintiff and his wife a general explanation of the judgment of the Court at a time when they had available to them, in court, the services of an accredited interpreter. Their origins are Chinese. Their native language is Mandarin. They have some (perhaps imperfect) comprehension of English. Their ability to communicate in English is poor.

In what follows, the present, written reasons for judgment represent an elaboration of the earlier, oral reasons, with the addition of references to authority omitted from the oral reasons.

By a summons filed on 8 March 2017 (and successively amended on 28 March 2017 and 11 April 2017) the plaintiff challenges in the Supreme Court decisions made by the Civil and Administrative Tribunal of New South Wales (“NCAT”) on 27 February 2017.

On that date the Tribunal made "guardianship" and "financial management" orders under the Guardianship Act 1987 NSW, the effect of which was:

The Tribunal published its reasons for these decisions on or about 22 March 2017.

The plaintiff's challenge to the Tribunal's decisions is made by way of appeal proceedings instituted under clause 14(1)(b) of schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW.

So far as is material, clause 14 is in the following terms (with emphasis added):

The plaintiff commenced his proceedings within the time limited by clause 14(2)(b), without need of an order extending the time for appeal.

On 3 April 2017 the Court made an order, under clause 14(5), that these proceedings not operate as a stay of any decision of NCAT under appeal. The consequence of that order is that for the past several months the Public Guardian and the NSW Trustee have, within their respective provenances, managed the person and property of the plaintiff.

The NSW Trustee (the First Defendant) and the Public Guardian (the Third Defendant) have filed submitting appearances, but appeared on the hearing of the proceedings to assist the Court.

The South Eastern Sydney Local Health District (the Second Defendant) is the plaintiff's contradictor. A nominee of the Health District was the applicant for guardianship and financial management orders in the Tribunal.

The Health District applied to the Tribunal for orders as a consequence of experience of repeated hospitalisation of the plaintiff, and concerns about his welfare, when left only to the care of his wife at home.

The Plaintiff, with the support of his wife, had earlier, unsuccessfully pursued the Health District in the Supreme Court, the Court of Appeal and the High Court of Australia claiming compensation for a deterioration in the plaintiff's health which they attribute to hospitals administered by the Health District.

Despite their lack of success in those proceedings, the plaintiff and his wife continue to demand that the Health District provide the plaintiff with "compensation" designed to allow him to enjoy "24/7" nursing care at home.

The Plaintiff's wife is the dominant voice in the presentation of his case.

Both are native Mandarin speakers with limited English language capability. At the hearing of the proceedings they were assisted, as was the Court, by an accredited interpreter.

Clause 14(1)(b) provides for an appeal to the Court, "as of right on any question of law, or with the leave of the Court, on any other grounds".

The plaintiff's summons was amended twice in response to the Court's invitations that his originating process conform to the parameters set out in clause 14(1)(b):

At no stage of the proceedings has the plaintiff specified a question of law in support of his appeal.

His general proposition that he has no need of a guardian or financial manager because, he submits and I accept, he is not cognitively or intellectually disabled does not lend itself to formulation as a question of law in the context of these proceedings. He is admittedly physically disabled and unable to take care of himself without substantial assistance.

The plaintiff's proceedings can be maintained if, and only if, the Court grants leave to appeal on a ground of appeal other than a “question of law”, a concept explained in C v W [2015] NSWSC 1774 at [43] and [48]-[50] citing, inter alia, Re R [2000] NSWSC 886 at [24]-[25] and Prendergast v Western Murray Irrigation Limited [2014] NSWCATAP 69 at [13]. Cf, Ferella v Chief Commissioner of State Revenue [2014] NSWCA 378 at [3]-[7].

The proceedings present no occasion to invoke the inherent jurisdiction of the Court. That jurisdiction is reserved for dealing with exceptional cases, as explained in Re Eve [1986] 2 SCR 388 at 411; (1986) 31 DLR (4th) 1 at 17 (approved by the High Court in Marion’s Case (1992) 175 CLR 218 at 258); Re Victoria [2002] NSWSC 647; 29 Fam LR 157 at [37]-[40]; Re Frieda and Geoffrey [2009] NSWSC 133; 40 Fam LR 608 at [43]-[45]. The plaintiff's proceedings must satisfy the requirements of clause 14(1)(b) or be dismissed.

The plaintiff seeks to challenge the Tribunal's decisions, essentially, by assertions that:

On an application by the plaintiff for a grant of leave under clause 14(1)(b), and for an appeal by way of a "new hearing" with supplementary evidence under clause 14(3), the Court received additional evidentiary material from the Plaintiff.

That evidence included:

The appeal process for which clause 14 provides is not a substitute for the ordinary processes of NCAT. Those processes include a regular review of guardianship orders, procedures amenable to an application for revocation of guardianship and financial management orders, and procedures designed to permit decisions of the Public Guardian and the NSW Trustee to be reviewed.

The present proceedings involve no question of principle, and no irregularity, which requires intervention of the Court. These are elements ordinarily required to ground a grant of leave under clause 14(1)(b), as explained in P v NSW Trustee and Guardian [2015] NSWSC 579 at [190]-[198], adapting Collins v Urban [2014] NSWSCATAP 17 at [84].

The Tribunal's decisions are supported by a formal statement of reasons which correctly states the law and applies it in a logical manner by reference to evidence amply supportive of the Tribunal's conclusions. No irregularity is alleged to have tainted the Tribunal’s decision-making procedures.

The statutory criteria for the appointment of a guardian, and those for the appointment of a financial manager, were specifically addressed by NCAT.

The Tribunal assessed the plaintiff’s capacity for self-management by reference to his particular circumstances and his functionality, drawing upon contemporary caselaw: in particular, P v R [2003] NSWSC 819 at [26]; Re D [2012] NSWSC 1006 at [58]; PB v BB [2013] NSWSC 1223 at [8]; CJ v AKJ [2015] NSWSC 498 at [38]; and P v NSW Trustee and Guardian [2015] NSWSC 579 at [309].

Applying McD v McD [1983] 3 NSWLR 81 at 86 (and noting Re W and L (Parameters of Protected Estate Management Orders) [2014] NSWSC 1106 at [20]), the Tribunal viewed the plaintiff’s capacity through a forward-looking prism focussed, not merely on the time of the hearing before it, but also on the reasonably foreseeable future.

The Tribunal was concerned, not only that the plaintiff needs a high level of care in attending to the personal functions of daily living, but also that he defers in all medical, accommodation and care decisions to his wife, whose decisions (including a refusal to receive training necessary to equip her to care for him at home) are, as the Tribunal apprehended, both irrational and hazardous. As found by the Tribunal, the plaintiff requires assistance with medical supervision; mobilisation; feeding (by reason of diminished function in his hands); food thickening; in taking medication (because he struggles physically to take tablets); and with showering and putting on his clothes. Each finding made by the Tribunal was expressly supported by reference to evidence before the Tribunal.

In pursuing these proceedings the plaintiff has chosen, and persisted in his choice of, the wrong forum for any ongoing complaint he has, either about the principal decisions of the Tribunal presently under challenge or about particular decisions made by the Public Guardian and the NSW Trustee pursuant to their appointments by the Tribunal. The Court is not a mere alternative to ongoing engagement with the Tribunal in the ordinary course of its business, still less a mere substitute for routine engagement with the Public Guardian and the NSW Trustee.

There is little doubt that the Plaintiff and his wife have a strong, burning sense of injustice grounded in continuing dissatisfaction about the result of the Plaintiff's common law compensation proceedings. That sense of injustice appears to have been a contributing factor in their failure to engage fully with the Public Guardian, the NSW Trustee and the health services provided to them.

The orders under appeal were made by the Tribunal with express reference to the criteria for which section 4 of the Guardianship Act provides.

Section 4 is in the following terms:

By operation of section 3(2) of the Guardianship Act, a reference to a person who has a disability is a reference to a person: (a) who is intellectually, physically, psychologically or sensorily disabled; (b) who is of advanced age; (c) who is a mentally ill person within the meaning of the Mental Health Act 2007 NSW; or (d) who is otherwise disabled, and who, by virtue of that fact, is restricted in one or more major life activities to such extent that he or she requires supervision or social habilitation.

The Tribunal was entitled, on the evidence before it, to find that the plaintiff is a person who has a disability and that he is a person in need of a guardian and a financial manager.

The Tribunal gave specific attention to the need for the welfare and interests of the Plaintiff to be given paramount consideration, and to the operation of the principles otherwise identified in section 4.

It is not open to the Court simply to set aside a regular decision of the Tribunal, authorised and governed by legislation, without regard to the statutory scheme embodied in the Guardianship Act, the NSW Trustee and Guardian Act and the Civil and Administrative Tribunal Act. A grant of leave under clause 14(1)(b) ordinarily requires the presence of a question of principle, or some form of irregularity in the decision or the decision-making processes of the Tribunal, to justify appellate review of a Tribunal decision. Clause 14 does not provide a vehicle for the Court, in the ordinary course, simply to interfere with the processes of the Tribunal or to become an alternative forum at large.

The appropriate course for the plaintiff, on the materials presented to the Court, is to engage with the Public Guardian and the NSW Trustee and to utilize the review processes available in the Tribunal.

For these reasons I refuse to grant leave under clause 14(1)(b) and, accordingly, I order that the Plaintiff's amended summons be dismissed.

[The parties were invited to indicate whether any other orders were sought.]

I note that, after consideration, each of the defendants has declined to make an application for costs. So, the order of the Court simply is that the plaintiff's amended summons be dismissed, with no order as to costs.

At the request of the second defendant, I also order that Exhibit P11 be released to the solicitor for the second defendant for the purpose of copying, and provision of copies to all other parties, and then return to the Court. I order that the appeal book and all exhibits otherwise remain with the Court pending further order. In a case like this it is appropriate that they all remain with the Court file indefinitely, available if required.