DYH v The Public Guardian [2022] NSWCATAD 227

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: DYH v The Public Guardian [2022] NSWCATAD 227 Hearing dates: On the papers Date of orders: 07 July 2022 Decision date: 07 July 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013. Catchwords: ADMINISTRATIVE REVIEW - dismissal - frivolous or vexatious - otherwise misconceived or lacking in substance - reviewable decision - requirement for internal review - s55 of the Administrative Decisions Review Act Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW) Guardianship Act 1987 (NSW) Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142 Harrington v Corrective Services New South Wales, Department of Justice [2017] NSWCATAD 46 DYH v Public Guardian [2021] NSWCATAD 136 DYH v Public Guardian (No 2) [2021] NSWCATAP 400 Texts Cited: None cited Category: Procedural rulings Parties: DYH (Applicant) The Public Guardian (Respondent) Representation: Solicitors: Applicant (Self-represented) J Griffiths (Respondent) File Number(s): 2021/00309880 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 with the exception of expert witnesses and officers of government agencies, the publication or broadcast of the name of any person mentioned or otherwise involved in these proceedings is prohibited.

REASONS FOR DECISION 1. On 1 November 2021, DYH (the "Applicant") applied to the Tribunal for administrative review in respect of a purported decision made by the Public Guardian which organisation was appointed some years ago to make lifestyle decisions for DYH's mother "AA" pursuant to a guardianship order. The application initially was seeking review of matters contained in a letter from the respondent dated 28 October 2021 as follows: 'Decisions made to decline the accommodation, proposal for AA dated 3 October 2021, made by DYH, [and others anonymised]. The subject person (mother of DYH) AA, changes to her circumstances require urgent immediate attention and a formal decision and review to her accommodation, that her home is being sold immediately and the Public Guardian has not made any decisions with her imminent living arrangement. The applicant has not be [sic] consulted, included or given fair and equal opportunity to be involved in the family decisions.' 1. At a Directions Hearing on 12 April 2022 the Tribunal made a number of decisions which are not relevant to this application. However, the parties were to address the following matters which they identified as being relevant to the substantive application, being: 1. An identification of the decision to be reviewed and whether that is a reviewable decision. 2. If the decision is reviewable, whether an internal review has been conducted and if not, whether the application can proceed and the basis on which it can proceed. 3. Whether the application should otherwise be dismissed.

Background 1. It is not in dispute that a guardianship order was made in the Guardianship Division of the Tribunal with respect to AA. 2. The Public Guardian was appointed to make, amongst other things, decisions concerning the accommodation of AA (see s 21C of the Guardianship Act 1987 (NSW) ('the Guardianship Act')). 3. DYH made an application to the Tribunal on 1 November 2021 pursuant to s80A of the Guardianship Act. The grounds for that review are set out above in paragraph [1]. 4. The Public Guardian made a decision on 8 March 2022 that AA live with DYH's sister, FFZ at FFZ's home ('the 8 March 2022 decision'). In effect, this new decision surpasses the purported decision under review. 5. The Tribunal has previously made orders for the non-publication of names of people involved in these proceedings. I also note pursuant to s 65 of the New South Wales Civil and Administrative Tribunal Act (NSW) 2013 ('the NCAT Act'), there is a prohibition against publishing the names of certain persons to whom proceedings relate. If the proceedings are for a decision for the purposes of the community welfare legislation within the meaning of the Community Services (Complaints, Reviews and Monitoring) Act 1993 (NSW), the prohibition includes a person to whom any proceedings in the Tribunal relate, a witness in proceedings, or a person who is mentioned or otherwise involved in the proceedings (see s 65(2) of the NCAT Act). 6. It is for this reason pseudonyms have been used in this decision.

Jurisdiction of the Tribunal 1. Section 50(2) of the NCAT Act provides, that proceedings can be determined on the papers by an order dispensing with an oral hearing. The parties have agreed to such an order, which was made by the Tribunal on 12 April 2022. 2. Section 28 of the NCAT Act provides that the Tribunal "has such jurisdiction and functions as may be conferred or imposed on it by or under this Act or any other legislation". The Administrative Decisions Review Act 1997 (NSW) ('the ADR Act') provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator. 3. Section 55 of the ADR Act provides that the Tribunal has jurisdiction to review "an administratively reviewable decision", defined in s 7 to be "a decision of an administrator over which the Tribunal has administrative review jurisdiction". 4. Section 9 provides that the Tribunal has administrative review jurisdiction over a decision of an administrator "if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision". The "enabling legislation" is legislation (other than the ADR Act or the NCAT Act) that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters: ADR Act, s 4(1); NCAT Act, s 4(1). 5. Section 80A of the Guardianship Act provides: 80A Administrative review by Civil and Administrative Tribunal of guardianship decisions of Public Guardian (1) An application may be made to the Civil and Administrative Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of a decision of the Public Guardian that: (a) is made in connection with the exercise of the Public Guardian's functions under this Act as a guardian, and (b) is of a class of decision prescribed by the regulations for the purposes of this section. (2) An application under this section may be made by: (a) the person to whom the decision relates, or (b) the spouse of the person, or (c) the person who has the care of the person to whom the decision relates, or (d) any other person whose interests are, in the opinion of the Civil and Administrative Tribunal, adversely affected by the decision. 1. Clause 17 of the Guardianship Regulation 2016 (the Regulation) provides: 17 Administrative review by Tribunal of guardianship decisions of Public Guardian For the purposes of section 80A (1) (b) of the Act, all decisions made by the Public Guardian in connection with the exercise of the Public Guardian's functions under the Act as a guardian are prescribed. 1. The effect of s 80A of the Guardianship Act and clause 17 of the Regulation is that the Tribunal has jurisdiction to review all decisions made by the Public Guardian "in connection with the exercise of" its functions under Guardianship Act. 2. The subject of any administrative review application to the Tribunal is a "decision", a term defined in s 6 of the ADR Act: 6 Meaning of "decision" (1) General meaning A decision includes any of the following: (a) making, suspending, revoking or refusing to make an order or determination, (b) giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission, (c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument, (d) imposing a condition or restriction, (e) making a declaration, demand or requirement, (f) retaining, or refusing to deliver up, an article, (g) doing or refusing to do any other act or thing. (2) Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation. (3) Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it. (4) Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested. (5) Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision. 1. Section 7 of the ADR Act provides: 7 Meaning of "administratively reviewable decision" (1) An administratively reviewable decision is a decision of an administrator over which the Tribunal has administrative review jurisdiction. (2) For the avoidance of doubt (and without limiting subsection (1) or section 6): (a) the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and (b) in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct. 1. Where a person is entitled to seek an internal review of an administrative reviewable decision, an application to the Tribunal may not be made unless the person has duly applied for an internal review and the review is taken to be finalised. 2. Section 55 of the ADR Act provides: 55 Making of applications (1) An application for an administrative review under this Act of an administratively reviewable decision may only be made by an interested person. (2) Subject to enabling legislation, an application is to be made in the time and manner prescribed by the procedural rules. Note— The fees payable for applications are also prescribed by the regulations under the Civil and Administrative Tribunal Act 2013. (3) If the interested person was entitled to seek an internal review of the administratively reviewable decision, an application may not be made unless the person has duly applied for such an internal review and the review is taken to have been finalised under section 53 (9). (4) However, the Tribunal may deal with an application for the administrative review of an administratively reviewable decision even though the applicant has not duly applied for an internal review to which the applicant was entitled if the Tribunal is satisfied that: (a) the applicant made a late application for the internal review in circumstances where the person dealing with the application unreasonably refused to consider the application and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned, or (b) it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time following the administratively reviewable decision of the administrator concerned. (5) In determining whether a late application for internal review was unreasonably refused or whether an application to the Tribunal was made within a reasonable time for the purposes of subsection (4), the Tribunal is to have regard to: (a) the time when the applicant became aware of the making of the decision, and (b) in a case to which subsection (4) (a) applies—the period prescribed by or under section 53 for the lodging of an application for an internal review, and (c) such other matters as it considers relevant. (6) The Tribunal may also deal with an application even though the applicant has duly applied for an internal review of the decision to which the application relates, and the review is not finalised, if the Tribunal is satisfied that it is necessary for the Tribunal to deal with the application in order to protect the applicant's interests. 1. In an administrative review under the ADR Act the Tribunal is to decide what is "the correct and preferable decision"; and the Tribunal may affirm, or vary, the administratively reviewable decision, or set it aside and either make a new decision in substitution or remit the matter for reconsideration by the administrator: ADR Act, s 63.

Application for summary dismissal

Summary dismissal 1. Section 55 of the NCAT Act, provides mechanisms where the Tribunal may dismiss at any stage any proceedings before it, relevantly s 55 provides: '55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances - … (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.' 1. In Harrington v Corrective Services New South Wales, Department of Justice [2017] NSWCATAD 46 at [39] the Tribunal considered the dismissal of proceedings under s55(1)(b) of the NCAT Act, finding that proceedings are 'misconceived' where the underlying facts do not come within the section under review or 'lacking in substance' where an element of the claim requiring proof is not reasonably arguable or that there is a high degree of certainty that the application will not succeed. 2. In Alchin v Rail Corporation NSW [2012] NSWADT 142, Judicial Member Wright SC (as he then was) noted: 'This approach of constructing 'misconceived' as including a misunderstanding of legal principle and 'lacking in substance' as encompassing an untenable proposition of fact or law has been applied by the Tribunal in many decisions …'

The Respondent's Submissions 1. In written submissions prepared by the solicitor for the respondent the relevant purported decision of the Public Guardian to which these proceedings relate is contained in an email from the Public Guardian to DYH dated 29 October 2021, which reads: 'Our office has reviewed your proposal for AA to transition to your home, or alternatively to be placed at [aged care facility]. Please see below feedback to this proposal. May 2020: On behalf of AA you submitted a proposal on 4/5/20 describing that AA should move into your home located at [address]. On 21/05/20 our office made a decision to decline this proposal. November 2020: On 02/07/20 the Public Guardian received a proposal from yourself. The proposal described that AA needs could be best met in [aged care facility], located in [NSW]. On 20/11/20 the Public Guardian made a decision to decline this proposal. Both decisions made by the Public Guardian noted above were reviewed separately at the Administrative and Equal Opportunity Division of NCAT and upheld. The proposal you have made minors [sic] proposals the Public Guardian has previously responded to and make reviewable decisions on. The Public Guardian does not consider making a further decision as being required. However should you or other people important to AA wish to submit an alternative accommodation proposal/proposals on behalf of AA the Public Guardian offers that opportunity. To support any accommodation proposal you may wish to submit. I have attached a copy of our proposal fact sheet and a copy of the Public Guardian's proposal template.' 1. The proceedings referred to in the above email are proceedings number 2020/34190.Those proceedings related to an accommodation decision, made on 20 November 2020, by which the Public Guardian placed AA into an aged care facility and not in the private home of DYH. 2. On 24 May 2021, at the request of DYH, the Tribunal reviewed that decision: DYH v Public Guardian [2021] NSWCATAD 136. 3. That decision was the subject of an appeal before the Tribunal's Appeal Panel, lodged by DYH. 4. On 10 September 2021, leave was refused and the appeal was dismissed: DYH v Public Guardian (No 2) [2021] NSWCATAP 400. 5. The Public Guardian submits that the email dated 29 October 2021 does not disclose any administrative reviewable decision. The Public Guardian on 8 March 2022 made a decision for AA to live with her other daughter, DYH's sister, and, therefore, the application for administrative review filed on 1 November 2021, predates the Public Guardian's accommodation decision made on 8 March 2022. I take this submission to mean there is no utility in reviewing the earlier decision to place AA in a nursing home. 6. The respondent submits that DYH's words in the grounds for her application "the Public Guardian [had] not made any decisions" concerning AA's living arrangements are particularly illustrative.

The Submissions of DYH 1. The Tribunal received a bundle of documents from DYH on 2 May 2022. The submissions appear mainly to relate to a response as to why the decision of the Public Guardian to place AA in the home of DYH's sister should not be maintained. Those matters do not pertain directly to the matters before me for determination. 2. I have therefore proceeded on the basis of the grounds of DYH's application which is set out in paragraph [1] above.

Conclusion 1. The decision which DYH seeks the Tribunal to review is set out in paragraph [1] above. I accept the submissions of the Public Guardian that the grounds for review, themselves, indicate "the Public Guardian has not made any decisions with her imminent living arrangements." This is illustrative of the lack of an administrative reviewable decision being made by the Public Guardian. I, therefore, find there is no administrative reviewable decision to be determined by the Tribunal. 2. The request that DYH makes is in my view one which seeks for the Tribunal to review the conduct of the Public Guardian. When undertaking administrative review of an administrative reviewable decision, the Tribunal is confined to the above provisions. The Tribunal has no jurisdiction in the context of an application to undertake administrative review of a decision to consider the 'conduct' of the Public Guardian. The request by DYH to do so does not, therefore, fit within any provisions in s 6 of the ADR Act which would mean that there is an administrative reviewable decision. 3. In the event that I am not correct in this finding, I have also turned my mind to the purported administrative reviewable decision of the Public Guardian made on 29 October 2021. 4. What is obvious is that DYH has not sought an internal review of the decision made by the Public Guardian. In accordance with s55(3) of the ADR Act, the precondition of requesting an internal review, is mandatory. That is, unless one of the exceptions in s55(4) of the ADR Act are satisfied. There is no evidence before me that either of the exceptions in s55(4) of the ADR Act apply. In these circumstances, there is no administrative reviewable decision. 5. I am satisfied that the tribunal's discretionary power to dismiss these proceedings as conferred on it by s55 of the NCAT Act is enlivened. The order of the Tribunal is that the proceedings are dismissed pursuant to s55(1)(b), because, I find the proceedings are misconceived and lacking in substance.

ORDERS 1. The proceedings are dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 07 July 2022