Ugur v Public Guardian [2022] NSWCATAD 279

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ugur v Public Guardian [2022] NSWCATAD 279 Hearing dates: On the papers Date of orders: 19 August 2022 Decision date: 19 August 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: S Montgomery, Senior Member Decision: 1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with. 2. Pursuant to section 55(1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived. Catchwords: ADMINISTRATIVE LAW – Guardianship – Decision of Public Guardian – Review under 80A – whether internal review – application for extension of time to bring application - whether proceedings futile – whether misconceived and/or lacking in substance Legislation Cited: Civil and Administrative Tribunal Act 2013 Administrative Decisions Review Act 1997 Guardianship Act 1987 Guardianship Regulation 2016 Civil and Administrative Tribunal Rules 2014 Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 BKW v Department of Family and Community Services [2014] NSWCATAD 205 DWZ v Wandiyali [2019] NSWCATAD 190 DYH v Public Guardian (No 3) [2022] NSWCATAP 34 Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 Jackson v Land and Housing Corporation [2014] NSWCATAP 22 Long v Metromix Pty Ltd [2019] NSWCATAP 198 Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65 Zonnevylle v Information Commissioner [2021] NSWCATAD 366 Texts Cited: None cited Category: Principal judgment Parties: Haci Emin Orhan Ugur (Applicant) Public Guardian (Respondent) Representation: Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent) File Number(s): 2022/00063208 Publication restriction: Nil

Reasons for Decision

Introduction 1. Mr Haci Emin Orhan Ugur ("the Applicant") has applied ("the substantive application") for review by the Tribunal of various decisions made by the Public Guardian ("the Respondent") in 2007 and 2008. At that time the Applicant was the subject of a limited guardianship order made by the then Guardianship Tribunal. 2. The substantive application seeks administrative review of the alleged decisions of the Respondent ("the challenged decisions"). His application to the Tribunal stated that he had only recently found out that the Respondent had made decisions affecting him. His application indicated that he was aggrieved by decisions the Respondent. He identified the challenged decisions in the following way: "During 2007-2008, when the applicant [was] under the Public Guardian Order, The OPG made decisions affecting the applicant (without inform the applicant, or giving a reason, or in compliance with procedural fairness, without the limits of the PG functions concerning the applicant, which was the lapsed 18 February 2008) including: a. The appointment of legal services and to liaise with these services .... for Legal Aid to accept an application for legal representation from the applicant. b. Monitoring with Advocacy c. Health care d. Setting up the applicant's cases dismissed against the DIAC [Department of Immigration and Citizenship] and COO [the Commonwealth Ombudsman Office] in the Federal Court of Australia. 1. A summary attached to the application elaborated on each of those issues. 2. In relation to the first identified challenged decision, the Respondent submitted: [O]n 8 November 2007 the Public Guardian consented, as the applicant's guardian, to Legal Aid processing an application for legal services made by the applicant. However, … the Public Guardian did not take a further role in the applicant's legal proceedings including to provide instructions to his legal representatives. The applicant alleges he was not notified of that decision ... The respondent observes that such a "decision" achieved no more than to confirm a course the applicant had determined to take … but accepts that, in principle, such a decision is amenable to review under s. 80A of the Guardianship Act, subject to the issues addressed by these submissions. The applicant also refers to several issues which apparently arose in the course of various proceedings in which he was involved in 2008 and 2009, including complaints regarding the conduct of his legal representatives, other respondents, and judicial officers ... It is unclear to the respondent how those matters relate to any decision it has made, save to the extent they are said to follow from the decision referred to above. 1. In relation to the other challenged decisions, the Respondent submitted that the Applicant has not identified a reviewable decision of the Respondent. 2. The Respondent has filed an application for dismissal of the substantive application. The Respondent contends that: 1. with one exception, the Tribunal does not have jurisdiction to review the challenged decisions, or alternatively, those decisions are not sufficiently well described to allow the Tribunal to determine that it has jurisdiction. 2. the Applicant requires leave to bring the substantive application in circumstances where he has not sought internal review, and leave should not be granted. 3. the Applicant requires an extension of time to bring the substantive application, and leave to extend time should not be granted; 4. the substantive application is otherwise misconceived and/or lacking in substance as there is no utility in seeking administrative review of the challenged decisions in circumstances where the Respondent has not had or exercised any functions with respect to the Applicant since 2008. 1. Section 50(2) of the Civil and Administrative Tribunal Act 2013 ("the NCAT Act") provides: The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. 1. I have dispensed with a hearing of the dismissal application as I am satisfied that the issues for determination can be adequately determined in the absence of the parties.

Background 1. The Applicant arrived in Australia in 1990 on a student visa. Following cessation of that visa he remained in Australia, and he was detained in Villawood Detention Centre. 2. In November 2006, the then Department of Immigration and Multicultural Affairs ("the Department") applied to the then Guardianship Tribunal for the appointment of a guardian for the Applicant. In February 2007, the Guardianship Tribunal found that the Applicant had a disability and that he was at least partially incapable of managing his affairs. It appointed the Public Guardian under a limited guardianship order for a period of twelve months, with authority to make decisions about: 1. the Applicant's accommodation; 2. the Applicant's health care; 3. the Applicant's medical and dental treatments; 4. services to which the Applicant should have access; and 5. legal advocacy, including to obtain legal documents, arrange legal representation and advocate generally in relation to legal matters. 1. The Respondent has identified various decisions that it made in relation to the Applicant including: 1. consenting to the Legal Aid Commission ("Legal Aid") processing an application for legal services received from the Applicant (8 November 2007); 2. consenting to the release of information to Red Cross for referral of the Applicant to a family reunification program (16 November 2007); 3. accepting a proposal for temporary accommodation arranged by the Department to facilitate the Applicant's release to the community under a residency visa (11 January 2008); 4. accepting "ACL" Integrated Humanitarian Settlement Services as the service provider to assist the Applicant within the community after the Applicant had been granted a Special Humanitarian Visa (15 January 2008); and 5. determining to release information to Richmond Fellowship for referral to ongoing support and case management programs (16 January 2008). 1. Following a review, the guardianship order was allowed to lapse in February 2008. The Public Guardian has not exercised any functions with respect to the Applicant since that time.

Applicable legislation 1. The substantive application does not specify the basis on which the Tribunal would have jurisdiction to review the challenged decisions. However, an application for an administrative review may be brought under the Administrative Decisions Review Act 1997 ("the ADR Act") and pursuant to section 80A of the Guardianship Act 1987 ("the Guardianship Act"). 2. Section 55 of the ADR Act provides: Division 1 Applications for administrative review 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. 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 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. Therefore, an application may be made to the Tribunal for administrative review of a decision of the Respondent that was made in connection with the exercise of its functions as a guardian under the Guardianship Act. However, in these proceedings the issue of the time of commencement of the application has been raised and whether the time should be extended. 2. Section 40 of the NCAT Act provides: 40 Making of applications and appeals An application or appeal to the Tribunal is to be made in the time and manner prescribed by enabling legislation or the procedural rules. 1. Section 41 of the NCAT Act provides: 41 Extensions of time (1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation. (2) Such an application may be made even though the relevant period of time has expired. 1. Rule 24 of the Civil and Administrative Tribunal Rules 2014 ("the NCAT Rules") provide: 24 Administrative review applications … (3) Unless the Tribunal grants an extension under section 41 of the Act, an application must be made— (a) in the case where enabling legislation specifies the period within which the application is to be made—within the period specified, or (b) in any other case—by the end of the default application period. (4) The default application period for the purposes of subrule (3)(b) is— (a) in the case where the applicant has duly applied for an internal review of the administratively reviewable decision under the Administrative Decisions Review Act 1997—the period of 28 days after the day on which the internal review is taken to have been finalised under section 53(9) of that Act, or … (b) in any other case—the period of 28 days after— (i) if the applicant has requested reasons under section 49 of the Administrative Decisions Review Act 1997 for the administratively reviewable decision—the day on which the applicant was either provided with a statement of reasons under section 49 of that Act or notified under section 50 of that Act of a refusal to provide reasons, or (ii) if the applicant has not requested reasons under section 49 of that Act—the day on which the applicant was notified of the making of the administratively reviewable decision. 1. The Guardianship Act does not specify the period within which an application for administrative review is to be made. The Respondent contends that the Applicant did not request reasons under section 49 of the ADR Act or seek an internal review of the challenged decisions. Accordingly, the Applicant was required to file the application within 28 days of the date he was notified of the decision. 2. Section 63 of the ADR Act provides: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. The Respondent contends that the application is misconceived or lacking in substance. Section 55(1) of the NCAT Act provides: 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances— (a) ... (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, ...

Presentation of the Applicant's material 1. Section 38(5) of the NCAT Act provides: The Tribunal is to take such measures as are reasonably practicable— (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so—to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. 1. The Tribunal conducted a directions hearing on 5 April 2022 and orders were made giving the parties the opportunity to file material that they considered relevant to the proceedings. The Applicant has filed a significant amount of material in response to those orders. 2. I am satisfied that the Applicant was given a reasonable opportunity to provide evidence in relation to his claims and to point to the evidence which supports those claims. 3. Much of the Applicant's material has been presented in a way that is extremely difficult to comprehend. As best as I can understand that material, it is either not relevant to the issues that are to be determined or, if it is relevant, I have been unable to ascertain the relevance. In some instances, the Applicant's material is incomprehensible. 4. In the Administrative Decisions Tribunal Appeal Panel decision of University of New South Wales v McGuirk (No 1) (GD) [2005] NSWADTAP 65, the Appeal Panel stated: … The Tribunal is not required to go through large quantities of material in search of evidence that could possibly support the University's claim. That point was made clear by the High Court in Gamester Pty Ltd v Lockhart (1993) 112 ALR 623 at 626 when the Court rejected a submission that a decision maker is obliged to sift through large volumes of written material in order to identify relevant submissions or evidence. The submission was described as suggesting: "... that a judge who has given a party a reasonable opportunity to state that party's claim for relief is under an obligation, without having the benefit of relevant and intelligible submissions, to extract from a mass of apparently non-supportive evidence any pieces of the evidence which could be regarded as supportive. The submission is misconceived. In court proceedings, a judge is bound to give a party a reasonable opportunity to state the party's claim for relief and to point to the evidence, which supports it. But if the opportunity is not taken, the judge is not bound to set out in search for supportive evidence to support a claim which the party has failed to articulate intelligibly." 1. The Appeal Panel in University of New South Wales v McGuirk (No 1) found that the Tribunal did not make an error by failing to sift through the filed material to identify relevant evidence and that the Tribunal did not make an error in failing to make a particular finding on the basis of that evidence. 2. As Basten JA explained in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at paragraph [22], there is no obligation on the Tribunal to consider every piece of evidence presented. Some material may be irrelevant or misconceived. That appears to be the situation in this matter. 3. As I have noted, I have been unable to ascertain the relevance of much of the Applicant's material. Some tolerance ought to be extended to unrepresented litigants who do not understand legal concepts: see DYH v Public Guardian (No 3) [2022] NSWCATAP 34 at paragraph [19]. However, the Tribunal must not become a self-represented litigant's advocate to the disadvantage of the other party. The role of the Tribunal is to determine the correct and preferable decision. It is not the function of the Tribunal to search through the Applicant's documents to extract material that could possibly support his claim that a challenged decision is not the correct and preferred one and that it should be set aside or varied.

The dismissal application 1. The Respondent submits that the Applicant has not established the basis on which the Tribunal has jurisdiction to determine this matter and that the application is misconceived. 2. The Respondent notes that the Applicant requires leave to bring the substantive application and submits that leave to extend time should not be granted. The Respondent further submits that in light of the time that has passed since the challenged decisions were made, and the fact that the Respondent has not been involved in the Applicant's affairs since 2008, there is no utility in seeking administrative review of those decisions.

Leave to extend time 1. The Respondent accepts that the Tribunal is empowered to grant an extension of time to bring an application for administrative review pursuant to section 41 of the NCAT Act. It refers to the decision in BKW v Department of Family and Community Services [2014] NSWCATAD 205 where the Principal Member Higgins considered the circumstances in which the Tribunal should exercise its discretion to extend time. At paragraphs [16] – [21] she stated: 16 As can be seen from the terms of [section 41 of the NCAT Act], it gives the Tribunal a wide discretionary power to grant an extension of time in which to file and serve an application for external review of an administrative decision. 17 In Jackson v Land and Housing Corporation [2014] NSWCATAP 22 at [18] the Appeal Panel noted that the discretion in section 41 is to be exercised judicially and having regard to the guiding principles in section 36 of the NCAT Act (i.e. the need 'to facilitate the just, quick and cheap resolution of the real issue in the proceedings'). 18 That is, the grant of an extension of time is not automatic. Time limits are set to promote the orderly and efficient conduct of proceedings in the Tribunal, to provide certainty for the parties to proceedings, and to achieve finality in litigation. And for these reasons, time limits should generally be strictly enforced unless the interests of justice require that the extension be granted. 19 In Jackson v Land and Housing Corporation at [22], the Appeal Panel set out the relevant considerations in deciding whether to grant an extension of time in which to lodge a Notice of Appeal. 20 These proceedings are administrative review proceedings (merits review proceedings) where role of the Tribunal is to determine the correct and preferable decision, at the time of the hearing, having regard to the applicable law and the relevant facts: see subsection 63(1) of the ADR Act. In determining an application for review the Tribunal can (affirm the decision, vary the decision or set it aside and make a decision in substitution thereof: see subsection 63(3) of the ADR Act. 21 While these proceedings differ to appeals, in my view, the principles set out in Jackson are also applicable with some modification. In summary, these can be described as follows: (a) the length of the delay; (b) the reason for delay; (c) the nature of the decision the subject of review and whether there is an arguable case that the decision the subject of review is not the correct and preferred decision and should be set aside or varied; and (d) prejudice to the respondent and any other interested person if strict compliance with the rules is applied. (see also Hunter Valley Developments Pty Ltd v Cohen [1984] FCA 176; (1984) 3 FCR 344 and [18] and following) 1. The Respondent submits that the Tribunal has held that in circumstances where there is no reasonable explanation for the delay, and/or the prejudice to the respondent is substantial, an applicant must go further than demonstrating that their case is "fairly arguable" and instead demonstrate their case has "substantial merit" in order for an extension of time to be granted. In DWZ v Wandiyali [2019] NSWCATAD 190 Senior Member Anderson stated at paragraph [61]: The applicant, however, is obliged in the circumstances of this matter to demonstrate that her case has substantial merit rather than being fairly arguable and has not so demonstrated: see Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 at [14] per Hodgson JA, Ipp JA agreeing at [17]; Molyneux v Chief Commissioner of State Revenue [2012] NSWADTAP 53 at [58], [59]; ZHA v ZGZ [2018] NSWCATAP 249 at [44]. That substantial merit test cannot be met since the lower standard is not able to be achieved in the circumstances. 1. In the Court of Appeal decision in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71NSWLR 61 Hodgson JA stated at paragraph [14]: 14 In my opinion, there may be circumstances where it is appropriate to go further into the merits of the case of a person seeking an indulgence such as this, than to ask whether or not the case is fairly arguable. If such a person has a reasonable explanation of delay and the opponent does not have a strong case of prejudice, then a fairly arguable case is sufficient. However, if the explanation for the delay is less than satisfactory, or if the opponent has a substantial case of prejudice, then it may be relevant that the person seeking the indulgence shows that his or her case has more substantial merit than merely being fairly arguable. 1. The Respondent submits that an extension of time will not be granted in circumstances where proceedings have little utility. The Respondent contends: 1. The length of the delay is very significant; 2. The Applicant has not provided a reason for the delay with respect to each decision challenged, or the entirety of the delay with respect to the decision to consent to Legal Aid processing his application, and the reasons that are given are not convincing in the circumstances; 3. The prejudice to the Respondent is very significant, noting the age of the relevant documents and the difficulty obtaining relevant evidence from persons involved at that time; and 4. The Applicant must demonstrate that his case has substantial merit and cannot do so. 1. The Respondent submits that the Applicant's application has little utility, and so cannot be said to be "fairly arguable". It cannot meet the higher standard of having "substantial merit". Further, the Applicant has not identified the remedies he seeks. 2. Further, the Respondent submits that none of the remedies available under section 63 of the ADR Act have utility in circumstances where the Respondent no longer exercises guardianship functions in relation to the Applicant and has not done so for over 14 years. The Respondent had no further involvement in any proceedings in which the Applicant received assistance from Legal Aid, and, in any event, those proceedings are no longer current. Even if the decision were able to be varied or set aside, there could be no action the Respondent could now take in relation to that decision, and no practical impact on contemporary events. 3. The Respondent submits that its only relevant decision was to confirm that Legal Aid could process an application made by the Applicant. The Respondent submits that the Applicant cannot reasonably challenge the merits of a decision which did no more than affirm a course he had elected to take with respect to his own legal representation. The Respondent also submits that a decision which allowed the Applicant to obtain legal representation could only be regarded as beneficial to the Applicant, notwithstanding the Applicant's dissatisfaction with the outcomes of subsequent litigation. 4. Further, the Respondent notes that the substantive application appears to seek to raise concerns that the Applicant holds regarding his subsequent legal representation and the results of various court proceedings. The Respondent submits that those concerns are not properly regarded as going to the merits of its decision. 5. Accordingly, the Respondent submits that there is no utility in allowing the substantive application to proceed and therefore an extension of time should not be granted.

No internal review 1. Section 55 of the ADR Act provides that, with limited exceptions, an application for administrative review may not be made until a person has duly applied for internal review pursuant to section 53, if so entitled, and the review has been taken to be finalised. Section 55(4)(b) provides that the Tribunal may deal with an application for administrative review in the absence of an internal review application, if the Tribunal is satisfied that: (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. 1. The Respondent is not aware of any internal review application by the Applicant in relation to any of the challenged decisions. Accordingly, the Tribunal must consider whether the conditions set out in section 55(4)(b) have been met. 2. The Respondent submits that: 1. In circumstances where the challenged decisions were made some 14 years ago, the substantive application cannot be said to have been brought "within a reasonable time", even if the applicant contends that he has only recently become aware of those decisions. In particular, the Applicant must be taken to have been constructively aware of the decision to allow his application for Legal Aid to be processed, given that it simply confirmed a course he had himself sought. 2. In any event, it could not be said that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests, given that there is no relief the Tribunal could grant that could have any practical impact on the Applicant in circumstances where the Respondent has not exercised guardianship functions with respect to the applicant for 14 years.

Proceedings otherwise misconceived or lacking in substance 1. As noted above, the Tribunal may dismiss proceedings if it considers that they are "misconceived" or "lacking in substance": section 55(l)(b) of the NCAT Act. In Long v Metromix Pty Ltd [2019] NSWCATAP 198, the Tribunal considered the meaning of "misconceived" and "lacking in substance" and stated at paragraph [77]: 77. We have considered whether proceedings Gen 17/25192 could be characterised as "misconceived" for the purposes of summary dismissal under s 55(1)(b) of the NCAT Act. In relation to this, in Alchin v Rail Corporation NSW [2012] NSWADT 142 Judicial Member Wright SC (as he then was) considered the meaning of "misconceived" in equivalent provision to s 55(1)(b) in the Administrative Decisions Tribunal Act 1977. He stated at [25] to [26]: 25 The expressions used in s 92(1)(a)(i) of the ADA, namely "misconceived" and "lacking in substance" are found not only in the ADA but also in s 73(5)(g) of the ADT Act and similar legislation in other states. With respect to a similar provision found in the Equal Opportunity Act 1984 (Vic), Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14] said: "misconceived" and "lacking in substance" have not, so far as I am aware, been used in this context before though each expression is commonly used by lawyers, the one connoting a misunderstanding of legal principle and the other connoting an untenable proposition of law or fact. If one may discern, in these provisions, an attempt to express the powers of tribunals in non-technical language, then "misconceived" would represent a claim which did "not disclose a cause of action" ..., whereas "lacking in substance" might be seen to represent a claim where the defendant could obtain summary judgment ... 26 This approach of construing "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 including, for example, Keene v Director-General, Department of Justice and Attorney-General [2011] NSWADT 59 at [14], McDonald v Central Coast Community Legal Centre [2008] NSWADT 96 at [22] and Stanborough v Woolworths Ltd [2005] NSWADT 203 at [50]. 1. In Zonnevylle v Information Commissioner [2021] NSWCATAD 366, the Tribunal set out the following principles for determining an application for dismissal under section 55(1)(b). Senior Member Dixon stated at paragraphs [36] -[37]: 36. It is accepted that a reasonably broad connotation should be given to the meaning of the categories for dismissal in s. 55(1), including s. 55(1)(b) of the CAT Act which give the Tribunal a broad power which captures any kind of abuse of process that can reasonably be seen to fall within their compass: BDK v Department of Education and Communities [2015] NSWCATAP 129 at [66]. 37. In addition to the authority relied upon by the Information Commissioner referred to above it is established by authority that: 1. Section 55(1)(b) requires the Tribunal to exercise a discretion and the question of whether the Tribunal should continue to deal with the matters raised by a party is to be judged by reference to discretionary considerations relating to the proper management of the proceedings, and having regard to the statutory powers given to the Tribunal including its formal powers of dismissal (see, e.g., NG v Chinese Medicine Board of Australia [2017] NSWCATOD 36 at [44] to [58] per Boland ADCJ, Deputy President; Samuel v Medical Council of New South Wales [2020] NSWCATOD 149 at [44] per Cole DCJ). 2. The Information Commissioner has the onus to demonstrate that the applicant's case which he seeks to pursue against her should not be allowed to proceed. To establish that proceedings are misconceived it must be demonstrated by the Information Commissioner that the claim does not disclose a reviewable decision (no cause of action or obviously untenable) or the applicant has no arguable case, in fact or law, which should be allowed to be resolved at a full hearing thus justifying a dismissal order (see Long v Metramix as set out above; Fox v Commissioner of Police [2016] NSWCATAD 77 at [26]; and also Cocks Macnish & Anor v Biundo [2004] WASCA 194 per Jenkins J at [29] and [30] in respect of s. 125 of the Equal Opportunity Act 1984 (WA) which is to the same effect as s. 55(1)(b) of the CAT Act). 3. In circumstances where an application is made to the Tribunal to dismiss an application without a final hearing the Tribunal will consider the materials before it to assess whether the applicant seeking to access the Tribunal's jurisdiction has established at least an arguable case which should be allowed to go to a hearing. 4. It is also accepted that the Tribunal must be conscious of the gravity for an applicant of summary dismissal of proceedings: BDK v Department of Education and Communities at [66]. 1. The Respondent submits that the matters that it has raised as to the utility of the substantive application would support an order for the dismissal of the application under section 55(1)(b) of the NCAT Act. The Respondent submits that the applicant does not have "at least an arguable case" in circumstances where: 1. The only reviewable decision apparently identified by the substantive application is a decision confirming a course the Applicant had already determined to take; and 2. The Tribunal could grant no relief under section 63 of the ADR Act which could be of utility to the Applicant in circumstances where the Respondent no longer exercises any guardianship functions in respect of the Applicant and the decision was made in the context of events which took place approximately 14 years ago. 1. The Respondent submits that it could not be said that dismissal of the substantive application would have significant practical consequences for the Applicant.

The Applicant's response to the dismissal application 1. The Applicant provided two affidavits and written submissions. That material is primarily in support of the substantive application. 2. The Applicant's material indicates that in 2017 he made a request for "a written reason for the action of the respondent for appointment of Monitoring with Advocacy" under the Commonwealth Administrative Decisions (Judicial Review) Act 1977. He stated that the Respondent provided an inadequate response to the request. He indicated that he involved the Commonwealth Ombudsman but there is no indication that he sought an internal review of the Respondent's response. 3. In February 2022 he wrote to the Respondent in the following terms: "I herewith request written reasons for the actions or decisions or the consent of the Public Guardian concerning me. I have recently been found out during 2007-2008, when / under the Public Guardian Order, The OPG made decisions affecting me (without inform the applicant, or giving a reason, or in compliance with procedural fairness, without the limits of the PG functions concerning the applicant, which was the lapsed 18 February2008) including: a. The appointment of legal services and to liaise with these services.... for Legal Aid to accept an application for legal representation from the applicant b. Monitoring with Advocacy c. Health care d. Setting up the applicant's cases dismissed against the Department of Immigration and Citizenship (DIAC) and the Office of the Commonwealth Ombudsman in the Federal Court of Australia. e. FOI Request I aggrieved by the decision of the Agency. 1. He received an acknowledgement of his request and an invitation to provide a phone contact number and to propose a time and date to discuss the request. On 9 March 2022, he attended the Respondent's office in Parramatta. He waited for about an hour but was unable to speak with anyone in relation to his request. He subsequently received an email from an officer in the Respondent's Information and Support Team who requested that he provide a telephone contact number so they could discuss the matter. In response, he emailed the officer and provided clarification of his request but did not provide a phone contact number. He did not receive any further response from the Respondent. 2. In his submissions, the Applicant provided a chronology of events from 2007 – 2008. It is not apparent how those events are relevant to the issues that need to be determined. With the exception of the discussion of his dealings with the Respondent in February – March 2022, he has not given any reasonable explanation for the delay in challenging the decisions.

Discussion 1. As I have indicated above, I have had great difficulty in understanding the relevance of much of the Applicant's material. Some of the material provides information that explains the Applicant's circumstances as they existed in 2007 – 2008. However, it sheds little light on the issue of the Tribunal's jurisdiction to review the challenged decisions. Similarly, if it is established that the Tribunal has jurisdiction to review the challenged decisions, the Applicant's material provides little assistance in regard to the issue of whether the time for bringing the application should be extended or the utility in dealing with the application. 2. As I have noted, the Applicant has identified four challenged decisions. He has sought review of: 1. The appointment of legal services and to liaise with these services .... for Legal Aid to accept an application for legal representation from the applicant. 2. Monitoring with Advocacy 3. Health care 4. Setting up the applicant's cases dismissed against the DIAC and COO in the Federal Court of Australia. 1. The Respondent contends that, with one exception, the Tribunal does not have jurisdiction to review the challenged decisions. Alternatively, the Respondent contends that those decisions are not sufficiently well described to allow the Tribunal to determine that it has jurisdiction. I agree with the Respondent in that regard. 2. In my view, the Tribunal does not have jurisdiction to review the alleged decisions of 'Monitoring with Advocacy'; 'Health care'; or 'setting up the applicant's cases dismissed against the DIAC and COO in the Federal Court of Australia'. The Applicant has not particularised those alleged decision in a way that establishes the decision that is said to have been made, the basis on which it is said to be reviewable or the outcome that is sought. In any event, if the Applicant's material does include those details, for the reasons that I have referred to above I have been unable to grasp the Applicant's arguments. 3. The challenged decisions were taken around 14 - 15 years ago. I have endeavoured to sift through the Applicant's material in order to identify relevant evidence to explain the delay in bringing the proceedings. However, the Applicant has generally failed to address the issue. He has not provided any reasonable explanation for the delay with respect to each of these challenged decisions. 4. In my view, it would be futile to allow the application to proceed insofar as it concerns those three challenged decisions. The Applicant has not demonstrated that his case has substantial merit or that there is even an arguable case. Given the time that has passed since the Respondent had any involvement in the Applicant's affairs, it is reasonable to expect that the Respondent would have significant difficulty in obtaining relevant evidence to respond to the Applicant's case. Further, it is not apparent how any of the orders that could be made under section 63 of the ADT Act would assist the Applicant. 5. In regard to the remaining challenged decision, the Respondent does not dispute that, in November 2007, it acted as the Applicant's guardian and consented to Legal Aid processing an application for legal services. That decision was in relation to an application that had been made by the Applicant. 6. The Respondent contends that it did not take any further role in the Applicant's legal proceedings. The Applicant does not appear to have disputed that contention. He merely alleges that he was not notified of the Respondent's decision. It appears that he was dissatisfied with aspects of the legal representation that he did receive but that assistance was in regard to proceedings that are no longer current. He does not appear to be alleging that the Respondent played any role in the representation or the proceedings. 7. The Respondent submits that the Applicant's concerns regarding his legal representation and the results of various court proceedings are not properly regarded as going to the merits of the Respondent's decision. I agree with that contention. 8. The Respondent submits that there is no utility in challenging the merits of a decision which did no more than affirm a course that the Applicant had elected to take with respect to his own legal representation. Further, the Respondent submits that a decision which allowed the Applicant to obtain legal representation could only be regarded as beneficial to the Applicant. 9. Further, the Respondent notes that even if its decision was varied or set aside, there could be no action the Respondent could now take in relation to that decision, and no practical impact on contemporary events. 10. On 25 February 2022, the Applicant wrote to the Respondent and requested written reasons for the challenged decisions. He requested a response within a week of that date. On the same day, he received an acknowledgement of his request and an invitation to discuss the request. On 3 March 2022, the Respondent wrote to the Applicant, offered to speak with him in regard to his request, and requested a contact phone number and an indication of a suitable time to discuss the request. The Applicant lodged his application with the Tribunal on 4 March 2022. It does not appear that the matter had progressed further before the application was lodged. On 9 March 2022, he attended the Respondent's office in Parramatta but was unable to speak with anyone in relation to his request. 11. In my view, the 25 February 2022 request for written reasons for the challenged decisions was not an internal review application. It was merely a request for reasons. It is not clear that the Applicant had requested an internal review of any of the challenged decisions prior to that 25 February 2022 request. In my view, the Applicant requires leave to bring the substantive application. 12. Even if the Applicant had requested an internal review at an earlier stage, he would still need to seek an extension of time to bring the application. 13. As I have noted above, the Tribunal can deal with an application in the absence of an application for internal review if it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests. 14. In the circumstances of this matter, I am not satisfied that it is necessary for the Tribunal to deal with the application in order to protect the Applicant's interests. 15. I agree with the Respondent that there is no utility in challenging the merits of the decision. I accept that the Respondent did no more than affirm a course that the Applicant had elected to take. 16. The Applicant would have been aware that he had been allowed to obtain legal representation. In those circumstances the Applicant had the benefit of the Respondent's decision. It is not clear what outcome he would have sought if he had challenged the decision at the time the decision was taken. Similarly, it is not clear what outcome he seeks in these proceedings. 17. I agree with the Respondent that even if its decision was varied or set aside, there could be no action the Respondent could now take in relation to that decision. A decision to vary or set aside the decision would therefore be futile. 18. In my view, the length of the delay is significant, and no reasonable explanation has been given for the delay. I am not satisfied that there is an arguable case that the decision to support an application that the Applicant had made for legal representation is not the correct and preferred decision or that it should be set aside or varied. In the circumstances, the substantial merit test cannot be met since the lower standard is not able to be achieved. 19. I agree with the Respondent that the application has little utility. Clearly, the decision that was taken was merely to support an application that the Applicant had made. In the circumstance, the prejudice to the Respondent if the matter were to proceed would be significant because of the length of the delay in bringing the application. 20. In my view, the application to bring the substantive application should be refused. 21. It is not necessary that I deal with the application for an extension of time to bring the application. However, I note that it is my view that the application for an extension of time to bring these proceedings pursuant to section 41 of the NCAT Act should be refused. The considerations that are relevant to my decision to refuse the application under section 55(4) of the ADR Act are equally relevant to this issue. 22. As I have noted above, it is my view that, with the single exception, the claim does not disclose a reviewable decision. In relation to the Respondent's decision to support an application that the Applicant had made for legal representation, I am not satisfied that the Applicant has an arguable case which should be allowed to be resolved at a full hearing. In that regard I am satisfied that the proceedings are misconceived or lacking in substance. 23. It follows that the Respondent's application for dismissal of the proceedings should succeed. The proceedings should be otherwise dismissed pursuant to section 55(1)(b) of the NCAT Act as misconceived or lacking in substance.

Orders 1. Pursuant to section 50(2) of the Civil and Administrative Tribunal Act 2013 a hearing of the dismissal application is dispensed with. 2. Pursuant to section 55(1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

********** 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: 19 August 2022