BB v LB

[2017] NSWSC 1079

Supreme Court

New South Wales

Medium Neutral Citation:

BB v LB & Ors [2017] NSWSC 1079

Hearing dates:

14 August 2017

Date of orders:

15 August 2017

Decision date:

15 August 2017

Jurisdiction:

Equity - Protective List

Before:

Kunc J

Decision:

Stay lifted; BB’s notice of motion dismissed; directions made

Catchwords:

ADMINISTRATIVE LAW - administrative tribunals - Civil and Administrative Tribunal (NSW) – appeal to Supreme Court against guardianship order – statutory stay pending appeal - Civil and Administrative Tribunal Act 2013 (NSW) Sch 6, cl 14(5)

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Category:

Procedural and other rulings

Parties:

Identities suppressed

Representation:

Counsel:

 

A. Kaufmann (Defendant)

 

Solicitors:

  Paul Duffy (Defendant)

File Number(s):

2017/196481

Publication restriction:

No

EX TEMPORE Judgment

Summary

1. The plaintiff ("BB") is the son of Mrs N. Mrs N lives in an aged care facility. Mrs N's daughter (BB’s sister) ("LB") is her mother's guardian.

2. On 14 June 2017 the New South Wales Civil and Administrative Tribunal (the "Tribunal"), constituted by a Senior Member (Legal), made orders extending an existing guardianship order in relation to Mrs N and related orders (the "Decision"). Among those related orders was an order that L, as guardian, should decide what health care Mrs N should receive and to make substitute medical decisions for Mrs N where she was not capable of giving valid consent.

3. By a summons filed on 30 June 2017, BB has appealed against the Decision. Somewhat irregularly, BB has purported to join Mrs N as second plaintiff. Furthermore, in addition to LB, two other family members have been named as defendants for no apparent reason.

4. These proceedings are governed by clause 14 of Schedule 6 of the Civil and Administrative Tribunal Act 2013 (NSW) (the “Act”) which includes:

14 Appeals to Supreme Court under this Part

(1) A party to proceedings in which an appealable Division decision is made may appeal to the Supreme Court against the decision:

(a) in the case of an interlocutory decision of the Tribunal-with the leave of the Court, or

(b) in the case of any other kind of decision-as of right on any question of law, or with the leave of the Court, on any other grounds.

…

(5) Subject to any interlocutory order made by the Supreme Court, an appeal to the Supreme Court operates to stay the decision under appeal.

5. The proceedings were before the Registrar yesterday for directions. In accordance with the Protective List practice in relation to such appeals, the proceedings were referred to me by the Registrar for consideration as to whether the Court should make an interlocutory order ameliorating the statutory stay of the Decision effected by cl 14(5) of Schedule 6 of the Act.

6. BB appeared for himself. LB and the other defendants were represented by Mr A Kaufmann of Counsel.

7. LB applied for an order lifting the statutory stay so as to give effect to the Decision until the determination of BB's appeal. BB supported the stay and asked the Court to appoint him as Mrs N's guardian in relation to her health affairs.

8. The Court has concluded that an order lifting the stay pending the determination of the appeal should be made for two principal reasons:

1. On the material currently before the Court, the appeal discloses no arguable basis for success.

2. In any event, based on the Decision it is clear that the welfare and interests of Mrs N (the paramount consideration in guardianship matters) are best served by maintaining the regime which was continued by the Decision.

Procedural background

9. The Tribunal first appointed LB as her mother's guardian in May 2015 for 12 months.

10. After a hearing in May 2016, the Tribunal extended the guardianship order for a further 12 months.

11. The guardianship order was originally scheduled to be reviewed by the Tribunal on 9 May 2017, but on that day the Tribunal joined BB as a party and adjourned the hearing of the review until 14 June 2017.

12. The Tribunal’s hearing was conducted on 14 June 2017 with a decision made on that day.

13. BB filed a summons on 30 June 2017 in the Common Law Division appealing from the Decision (the "summons").

14. At the first return date of the summons the proceedings were transferred to the Protective List for mention on 14 August 2017 (yesterday). BB was ordered to file and serve an affidavit in accordance with UCPR Part 50 r 50.14 (the "r 50.14 affidavit") by 11 August 2017. That rule includes:

“50.14 Reasons for decision, transcript and other parts of the record of the court below

(1) Unless the court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for the hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits:

(a) a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and

(b) a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of proceedings of that type, and

(c) a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal.

(2) The defendant may prepare an affidavit to be relied on at the appeal, cross-appeal or application for leave to appeal or cross-appeal any exhibit, affidavit or other document from the proceedings in the court below that the defendant wishes to be considered at the hearing of the appeal, cross-appeal or application for leave to appeal or cross-appeal in addition to any exhibit, affidavit or other document referred to in subrule (1) (c)…”

15. BB has not filed the r 50.14 affidavit. On 11 August 2017 he filed a notice of motion which was made returnable on 21 August 2017 (the "notice of motion"). That notice of motion was filed with an affidavit of that date (the "affidavit").

16. For the reasons set out in paragraph [5] above, the proceedings were referred to me.

BB's documents

17. Accepting that BB has had no legal assistance and with no disrespect intended, it remains the fact that the documents filed by BB are discursive, disorganised and difficult to follow.

18. It appears from the summons that BB intends to seek leave to appeal from the Decision and, perhaps, from the two earlier determinations of the Tribunal. This latter aspect raises difficulties of timeliness that I need not detail in these reasons. Among the orders sought, BB asks for LB to be removed as guardian. There is no express order sought that BB be appointed as guardian, but that seems to be implicit.

19. The 18 grounds of appeal, over some four and a half pages, only confuse matters further. It will be recalled from paragraph [4] above that there is an appeal as of right on a question of law and otherwise only by leave. The first of BB’s grounds of appeal begins:

“Leave to appeal from the whole of the decision below in the lower tribunal as of right, NCAT guardianship orders fail with a question of law; the decisions were not fair nor equitable, the reasons for decisions and orders were clearly against the weight of evidence, there has been significant new evidence that was not available at the time of the previous tribunal hearings.”

20. The confusion in the grounds of appeal only compounds thereafter.

21. Despite these difficulties, two matters do seem to emerge as being of concern to BB, who is clearly devoted to his mother and her welfare. First, he is very concerned that various drugs are being prescribed to his mother which BB says he has evidence are causing her harm. Second, there are occasional suggestions which, taken at their highest, may mean (to use lawyer's language rather than BB's) that he says he was denied procedural fairness in relation to raising these and other concerns at the hearing which resulted in the Decision.

22. The notice of motion is equally difficult to follow. However, it seems to be designed to achieve at least two things. First, it seeks more time to file the r 50.14 affidavit. Second, in various ways, it applies for orders for three doctors - a general practitioner, a psychiatrist and a geriatrician - to examine Mrs N and provide reports to be used in evidence on the appeal.

23. The affidavit sets out, again, over some four pages, BB’s concerns about his mother's medical treatment and asserts that he has medical reports that he will rely upon at the final hearing. However, none is annexed to the affidavit and none was tendered at yesterday's hearing.

The parties’ contentions

24. BB submitted that the stay should continue. He was, however, prepared to offer what he referred to as a "compromise". This was that L could continue to look after Mrs N's financial affairs, but that he (BB) should be appointed guardian in relation to Mrs N's medical affairs. As best I could follow these submissions, he contended that LB was permitting Mrs N to be subjected to negligent medical treatment and that he had not been given any adequate opportunity to advance this or other arguments at the hearing in the Tribunal. He said that he had raised his concerns about her medical treatment in the Tribunal, but that they had been ignored.

25. Mr Kaufmann submitted that the matters considered in the Decision demonstrated that it was in the best interests of Mrs N for the regime that had been in place for two years to continue. At the moment, by reason of the statutory stay, there was a lacuna in the guardianship arrangements for Mrs N because, absent the extension ordered by the Decision, the earlier guardianship orders had expired. Furthermore, there was no evidence to support BB’s allegations about Mrs N's medical treatment and the various documents filed by BB did not disclose any arguable basis on which the Court could conclude the appeal had any prospects of success.

Consideration

26. I generally accept Mr Kaufmann's submissions. For the following four reasons the Court has concluded that the statutory stay should be lifted pending determination of the appeal.

27. First, on its face there is no obvious error of fact or law in the Decision. I emphasise that this is an interlocutory conclusion based solely on a reading of the Decision itself and without the benefit of the transcript of the hearing in the Tribunal or any other part of the record.

28. Second, assuming without deciding, that the Court has power under cl 14(5) of Schedule 6 of the Act, to give effect to the "compromise" proposed by BB, the Court would decline to do so for three reasons:

1. As the Decision records, at the first hearing in the Tribunal in May 2015, a financial management application was refused. There is nothing before the Court that would warrant such an order being made now. None was sought by LB.

2. There is no evidence (as opposed to assertion by BB) that supports his argument that Mrs N is currently being subjected to inappropriate medical treatment.

3. The Decision records that, although obviously well intended, it was BB who was potentially injuring his mother's health by providing additional food to her, contrary to requests from the aged care facility. BB rejected that allegation before me. The Tribunal found that BB's conduct resulted in Mrs N consistently failing to comply with her diet and putting on significant weight, therefore increasing the risk to her from diabetes and hypertension.

29. Third, the statutory stay does create a lacuna in Mrs N's guardianship arrangements. Those arrangements had been in place for two years and had been twice reviewed and extended by the Tribunal. On the basis of the information recorded in the Decision, the Court concludes that it is clearly in Mrs N's best interests for those arrangements to continue while the appeal is determined.

30. Fourth, none of the documents currently filed by BB demonstrate that the appeal has any prospect of success. This may, of course, change including when BB files his r 50.14 affidavit which should include the transcript of the hearing in the Tribunal (assuming one is available).

Future conduct of the Appeal

31. Two things are necessary to enable the orderly consideration of the further conduct of the appeal: a r 50.14 affidavit and, if he wishes, an amended summons which should try to set out in a more focused way the areas upon which BB relies.

32. The Court has been hampered in considering BB's position by the absence of a transcript or other reliable evidence of what occurred below. For example, I asked BB whether he had raised his concerns about Mrs N's medical treatment with the Tribunal. Without hesitation, he said he had. On the other hand, in the affidavit he deposes (in paragraph (vii)) only to those concerns being raised in the 2015 and 2016 hearings. Such considerations point to the importance of the r 50.14 affidavit so that the Court has access to the record from below.

33. The notice of motion is in large part misconceived. For good order the Court will dismiss it. However, insofar as BB's desire for Mrs N to be examined by the three doctors, two things should be said.

34. First, cl 14(3) of Schedule 6 of the Act provides:

(3) The Supreme Court in an appeal under this Part may:

(a) decide to deal with the appeal by way of a new hearing if it considers that the grounds for the appeal warrant a new hearing, and

(b) permit such fresh evidence, or evidence in addition to or in substitution for the evidence received by the Tribunal at first instance, to be given in the new hearing as it considers appropriate in the circumstances.

35. The decision to proceed by way of a new hearing is expressly premised on the Court's consideration of the grounds of appeal. Those same grounds will necessarily inform the nature of any fresh evidence to be allowed on the hearing of the appeal. It is entirely possible that, depending on what BB files, the Court will conclude that evidence of a medical examination of the kind referred to in the notice of motion should take place.

36. Second, apart from its relevance to the appeal, as a matter of common sense it seems to me that LB, as Mrs N's guardian, should give careful thought to the desirability of examinations of the kind which BB seeks being carried out in any event in relation to Mrs N. Such examinations may have the effect of assuaging BB's concerns, thereby limiting the issues on the appeal, or may demonstrate matters to which, in the proper exercise of her guardianship responsibilities, LB may have to give attention.

Conclusion

37. The Court directs:

1. That the parties and other persons referred to in the judgment be anonymised and that for the purposes of publication the proceedings be referred to as "BB v LB & Ors"

38. The Court orders:

1. Until further order the Court lifts the stay of the orders of the NSW Civil and Administrative Tribunal made on 14 June 2017 in matter number 2016/4469, which stay is otherwise given effect by cl 14(5) of Schedule 6 of the Civil and Administrative Tribunal Act 2013.

2. The first plaintiff’s notice of motion filed 11 August 2017 is dismissed.

3. The first plaintiff is to file and serve an affidavit in accordance with UCPR Part 50, r 50.14(1) on or before 11 September 2017.

4. Any amended summons which the first plaintiff may wish to file setting out more concisely and precisely the errors which the first plaintiff contends were made by the Tribunal or any other bases upon which the first plaintiff intends to rely in his appeal is to be filed and served on or before 11 September 2017.

5. The second plaintiff and the second and third defendants are removed from the proceedings.

6. The orders made by the Registrar on 14 August 2017 are vacated.

7. There be liberty to any party to apply on two days’ notice by email to the associate to Kunc J.

8. The proceedings are listed for further mention before the Protective List Judge on 28 August 2017.

9. All questions of costs to date are reserved.

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Decision last updated: 16 August 2017