BBS
[2014] NSWCATGD 25
•30 June 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: BBS [2014] NSWCATGD 25 Hearing dates: 30 June 2014 Decision date: 30 June 2014 Jurisdiction: Guardianship Division Before: Currie J, Senior Member (Legal)
Williams P, Senior Member (Professional)
Djoneski V, General Member (Community)Decision: Guardianship order renewed for 12 months.
Appointment of financial manager confirmed.
Catchwords: GUARDIANSHIP - requested review of guardianship order - end of term review of guardianship order - allegation of guardian's failure to communicate with family - order confirmed and renewed.
FINANCIAL MANAGEMENT - application to review appointment of financial manager - allegations of mismanagement by financial manager - no evidence of mismanagement - appointment confirmed.
INTERLOCUTORY ISSUES - leave for legal representation - identity of lawyer - summary dismissal - meaning of frivolous and vexatious - issue estoppel and its applicability to Tribunal proceedings.
PROCEDURAL FAIRNESS - hearing proceeded in absence of subject person.
COSTS - application by financial manager for costs - application made without particulars - adjourned for further submissions - consideration on the papers.Legislation Cited: Guardianship Act 1987 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)Cases Cited: Kioa v West [1985] HCA 81; (1985) 159 CLR 550
LA v Protective Commissioner & Ors [2004] NSWADTAP 39
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Hatchett v Bowater Tuff Industries Pty Ltd (No 2) (1991) 28 FCR 324
JF Keir Pty Ltd v Sparks [2008] FCA 611
Blair v Curran [1939] HCA 23; (1939) 62 CLR 464
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649Category: Principal judgment Parties: Miss BBS (subject person)
Mrs LVS (applicant)
Mr NAS (applicant, financial manager)
The Public Guardian
The NSW Trustee and GuardianFile Number(s): 39162 Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal's proceedings (s 65, Civil and Administrative Tribunal Act 2013 (NSW)).
reasons for decision
What the Tribunal decided
The Tribunal decided to refuse Mr NAS' application for summary dismissal of the applications and decided to summarily dismiss Mr NAS' application.
The Tribunal decided to renew the guardianship order for Miss BBS made by the Guardianship Tribunal on 28 August 2012 and to make a continuing guardianship order for one year appointing the Public Guardian as the guardian for Miss BBS with the authority to decide what access she has to others and the conditions of that access.
The Tribunal decided to confirm the appointment of Mr NAS as the financial manager of Miss BBS.
In respect of both the guardianship and financial management orders the Tribunal decided to direct Mr NAS to provide within 21 days a written update to the Public Guardian, NSW Trustee and Guardian and Mrs LVS as to the current accommodation, services, care programs and care activities of Miss BBS and to provide further reports to those parties on those matters at intervals of approximately six weeks thereafter, until further direction or order of the Tribunal.
The Tribunal decided to give the directions set out in Appendix B [Appendix removed for publication] in respect of the application for cost order and to order that the application be dealt with by the Tribunal on the papers.
Background
Miss BBS is a 29-year-old woman who is currently living with her father Mr NAS at West Sydney. Miss BBS' mother, Mrs LVS is divorced from Mr NAS. Mrs LVS also lives at West Sydney. Miss BBS has two sisters, Ms NBX who lives at Regional NSW and Ms ECB who lives at Regional NSW. Miss BBS has been diagnosed with an intellectual disability.
There have been numerous proceedings in the Guardianship Tribunal, the Administrative Decisions Tribunal ("ADT") and this Tribunal concerning Miss BBS.
On 21 July 2009 the Guardianship Tribunal made a reviewable financial management order for Miss BBS appointing her father Mr NAS as her financial manager. This order was to be reviewed within two years.
On 21 July 2009 the Guardianship Tribunal dismissed an application seeking the appointment of a guardian for Miss BBS.
On 19 July 2010 the Guardianship Tribunal considered an application by Mrs LVS to review the financial management order made on 21 July 2009 and the Tribunal confirmed that financial management order.
On 13 July 2011 the Guardianship Tribunal made a guardianship order for Miss BBS appointing the Public Guardian for a period of 12 months with the authority to make decisions about Miss BBS' access to others and the conditions of that access.
On 13 July 2011 the Guardianship Tribunal varied the financial management order which had been made on 21 July 2009. It replaced Mr NAS as financial manager and committed management of Miss BBS' estate to NSW Trustee and Guardian.
Mr NAS then appealed those orders referred to in (12) to the ADT. The ADT considered Mr NAS' appeal on 29 May 2012 and it ordered that the financial management order made on 13 July 2011 should be set aside. Accordingly, Mr NAS remained appointed as the financial manager of Miss BBS.
On 4 July 2012 the Guardianship Tribunal made Directions Orders relating to the end of term statutory review of the guardianship order last made on 13 July 2011 and also in relation to its own motion review of the financial management order of 21 July 2009, as varied on 13 July 2011. These Directions Orders included an order that Miss BBS be separately represented, that Mrs LVS be joined as a party to all proceedings and that Mr NAS be legally represented.
On 23 July 2012, the Tribunal determined not to review the financial management order of 21 July 2009 (that is, the order set out in (8) above). Accordingly Mr NAS remained as the appointed financial manager.
On 28 August 2012 the Guardianship Tribunal reviewed the guardianship order dated 23 July 2012 and decided to renew that order. It again appointed the Public Guardian as the guardian of Miss BBS for a further two years with the function of making decisions about her access to others, and the terms of that access.
On 1 March 2013 the Guardianship Tribunal received from Mrs LVS two applications. The first of these was an application to review the financial management order made in respect of Miss BBS so as to replace the current financial manager, Mr NAS. The second application was a request to review the guardianship order in respect of Miss BBS. This application requested that the order be varied to authorise the Public Guardian to make decisions in respect of Miss BBS' accommodation, health care and services, in addition to the existing function of making decisions about her access to others.
On 17 March 2014 this Tribunal made Directions Orders. It ordered that Miss BBS be separately represented in all proceedings pending before the Tribunal and noted that Ms NQC, Barrister, would act as separate representative. The Tribunal also granted leave for Mr TPS, Solicitor, to represent Mr NAS in all proceedings pending before the Tribunal. The Tribunal also made directions in relation to the submission of evidence and requests for summonses.
On 10 June 2014 the Tribunal made further Directions Orders. Firstly it declined to issue summonses which had been sought by Mr NAS, intended to adduce medical evidence as to Mrs LVS' mental health. Secondly the Tribunal directed each of the parties to provide details of any witnesses they intended to rely upon at the hearing scheduled for 30 June 2014.
On 10 June 2014 the Tribunal also noted that Mr NAS would apply for the dismissal of the current applications before the Tribunal brought by Mrs LVS and would apply for an order that Mrs LVS pay his costs of the proceedings. Subsequently the Tribunal received applications to this effect on the letterhead and in the form required by the Administrative and Equal Opportunity Division of this Tribunal. In exercise of its discretions under the Civil and Administrative Tribunal Act 2013 (NSW), the Tribunal determined that it would accept those applications notwithstanding that they had not been made in the form required by the Guardianship Division of the Tribunal.
The hearing
Order of proceedings
There were several applications and reviews to be determined by the Tribunal at its hearing on 30 June 2014. The Tribunal decided that these matters would be dealt with in the following order:
(1) Firstly, the Tribunal would consider Mr NAS' application for dismissal of the applications brought by Mrs LVS. At the commencement of the hearing Mr NAS, through his legal representative confirmed that his application was directed only at the Mrs LVS' requested review of the guardianship order, being Matter No.2013/#### and her application to replace the financial manager, being Matter No 2013/####. Mr NAS' application indicated that dismissal was sought on the ground that the applications were "vexatious and without reasonable cause."
(2) The Tribunal would then deal with the statutory end of term review of the guardianship order last made on 28 August 2012, as described in (16) above. If Mr NAS' application for dismissal of Matter No.2013/#### were unsuccessful, then the requested review of the guardianship order would be considered in conjunction with the statutory end of term review of that order.
(3) If Mr NAS' application for dismissal of Matter No.2013/#### were unsuccessful, the Tribunal would then proceed to consider that matter; namely, the application by Mrs LVS for replacement of Mr NAS as financial manager.
(4) The Tribunal would then consider Mr NAS' application for a costs order.
Interpretation
For convenience, in these Reasons we shall refer to the statutory end of term review of the guardianship order, the requested review of the guardianship order and the application for replacement of financial manager as "the substantive matters" or "the substantive applications" and Mr NAS' applications for dismissal and for a costs order as "the procedural applications."
Legal representation of Mr NAS
At the commencement of the hearing Mr NGF, Barrister indicated that he wished to appear as the legal representative of Mr NAS. Mr NAS had been given leave to be legally represented in all proceedings on 6 May 2014 but at that time his legal representative was to be Mr TPS, Solicitor. Mr TPS was also present at the hearing on 30 June 2014. Following discussion with the relevant parties the Tribunal accepted Mr NGF's application that he be appointed as the legal representative of Mr NAS at this hearing. The Tribunal noted that Mr TPS would attend the hearing as the McKenzie Friend of Mr NAS.
For completeness, it should be noted that Mr NAS and Mr TPS are not related.
Parties to the substantive matters and witnesses.
Appendix A to these Reasons sets out the parties to the substantive matters and identifies the witnesses who participated in the hearing [Appendix removed for publication].
Conciliation.
The Guardianship Act 1987 (NSW) ('the Guardianship Act') requires that before the Tribunal makes a decision on any application, it must bring the parties to a settlement or use its best endeavours to do so. This is not required if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement. There were many issues in dispute between Mr NAS and Mrs LVS. In the course of the hearing the Tribunal attempted to bring those parties to a settlement of those issues but was not successful in doing so.
Issues for decision by the Tribunal in respect of the substantive matters.
A. Reviews of the guardianship order:
The questions which had to be decided by the Tribunal were:
(1) Is Miss BBS someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions?
(2) Should the Tribunal make a further guardianship order?
(3) If so, what order should the Tribunal make and how long should it last?
B. Financial Management
Under s 25U(1) of the Guardianship Act, when reviewing the appointment of a financial manager, the Tribunal may either confirm or revoke the appointment. The Tribunal may revoke the appointment only if:
(a) the appointed manager seeks the revocation;
(b) the Tribunal is satisfied that it is in the best interests of the person under financial management that the appointment be revoked; or
(c) the financial management order in respect of the estate concerned is revoked.
In this case, paragraph (a) was not applicable as Mrs LVS, not the appointed manager, Mr NAS, was seeking the revocation.
Paragraph (c) is only relevant where the Tribunal decides that in hearing such an application it will conduct a general review of the financial management order under which the manager was appointed. Sub-section 25U (2) of the Guardianship Act allows this to be done. In this case however the Tribunal decided not to undertake such a general review of the financial management order, as there was no request for this to happen and the Tribunal could see no need to do this, or that such a general review would promote Miss BBS' welfare or interests.
Accordingly the questions which had to be decided by the Tribunal at this hearing were:
(1) Is it in the best interests of Miss BBS for the appointment of her father Mr NAS as her financial manager to be revoked?
(2) If the appointment of the current manager should be revoked, who should be the new financial manager?
Miss BBS' absence from the hearing
It was accepted by all parties that Miss BBS continues to have a severe intellectual disability. There was nothing before the Tribunal to indicate that there had been any improvement in her condition. The Tribunal noted that at its hearing on 28 August 2012 the Guardianship Tribunal had found that Miss BBS was unable to attend the hearing all talk to the Tribunal to present her views, because of her disability.
Under the operation of the legal principles collectively known as the "fair hearing rule," normally a person is entitled to attend the hearing or to participate by telephone or video-conference, in order to make relevant submissions, give evidence and call witnesses. However all that is required for compliance with the fair hearing rule in proceedings such as those before the Tribunal is that the subject person be given a reasonable opportunity to attend and it is recognised that participation in a hearing will serve no purpose unless the person concerned is willing and able to participate in the proceedings, even if that participation is limited. See, for example: Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 585, and LA v Protective Commissioner & Ors [2004] NSWADTAP 39). If the Tribunal has sufficient probative evidence to satisfy itself that the subject person is physically, mentally or emotionally unable or unwilling to attend or participate in a hearing, or that for some other reason it would not be in the person's best interests for them to do so, there will be no breach of the fair hearing rule by reason only of their non-attendance.
That was clearly the case here. Additionally, at the hearing Miss BBS' interests would be represented by her Separate Representative. For these reasons the Tribunal decided that it would proceed with the hearing in the absence of Miss BBS.
The application for dismissal
The basis of the application for dismissal
Sub-section 55(1) of the Civil and Administrative Tribunal Act 2013 (NSW) ("the CAT Act") permits the Tribunal at any stage to dismiss proceedings before it, in certain circumstances. Paragraph (b) of the subsection permits this to happen if the Tribunal considers that the proceedings are:
"frivolous or vexatious or otherwise misconceived or lacking in substance."
Mr NGF clarified that the use of the phrase "without reasonable cause" in the application for dismissal was in his view equivalent to saying that Mrs LVS' applications were frivolous and that accordingly, in his submission her applications were both frivolous and vexatious.
What is a "frivolous" or a "vexatious" proceeding for the purposes of section 55?
There is no definition of "frivolous" or "vexatious" for the purposes of section 55 of the CAT Act within the Act itself or under any relevant subordinate legislation. We have been unable to locate any reported case authority on either of the terms which has emerged since the commencement of operation of the relevant parts of that Act on 1 January 2014. However, there has been considerable past judicial commentary on the terms.
In the High Court decision in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, ("the General Steel Case"), the Chief Justice Sir Garfield Barwick summarised relevant authorities which indicate that caution should be exercised before dismissing any proceeding on the ground that it is frivolous or vexatious. He noted with approval the authorities which indicate that such a power is to be exercised sparingly and is not to be used except in a clear case where the relevant court or tribunal is satisfied that it has the requisite material and the necessary assistance from the parties to reach a definite and certain conclusion. His Honour went on to say:
"(the) cases uniformly adhere to the view that the (applicant) ought not to be denied access to the customary tribunal which deals with actions of the kind (he or she) brings, unless (his or her) lack of a cause of action... is clearly demonstrated."
His Honour also cited with approval the principle stated in the High Court case of Dey v Victorian Railways Commissioners (1949) 78 CLR 62 ("the Dey Case") to the effect that a case for dismissal on the grounds that proceedings are frivolous or vexatious must be "very clear indeed" in order to justify the summary intervention of the relevant tribunal to prevent the applicant from presenting his or her case. As His Honour Justice Dixon (as he then was) said in that case:
"...once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the (tribunal) to dismiss the action as frivolous and vexatious and an abuse of process."
In the General Steel Case Barwick CJ also set out with approval various expressions which have been used to describe the concept of "frivolous" as including:
"so obviously untenable that it cannot possibly succeed;"
"manifestly groundless;"
"so manifestly faulty that it does not admit of argument;"
"a case which the (tribunal) is satisfied cannot succeed;"
"under no possibility can there be a good cause of action;" and
"(where it is) manifest that to allow (the application) to stand would involve useless expense."
In relation to the term "vexatious", Barwick CJ in the General Steel Case also cited with approval the judgement of Latham J in the Dey Case which recognised that although a party (such as Mr NAS in this case):
"... should be "saved from the vexation of the continuance of useless and futile proceedings", great care must be exercised to ensure that under the guise of achieving... finality, (an applicant) is not improperly deprived of (his or her) opportunity for the (determination of his or her application) by the appointed tribunal."
In a more recent Federal Court Case, Hatchett v Bowater Tuff Industries Pty Ltd (No 2) (1991) 28 FCR 324 the Court was prepared to go so far as to say that the mere fact that a proceeding is shown to have no foundation in fact is insufficient to justify a finding that it was commenced vexatiously or without reasonable cause, although in JF Keir Pty Ltd v Sparks [2008] FCA 611 at [62], the Federal Court stated the view that an application can be stayed as vexatious "if it can really lead to no possible good."
Issue estoppel
Mr NGF submitted that the manner in which the issues and evidence were raised by Mrs LVS in her applications attracted the doctrine of issue estoppel.
Essentially that doctrine involves a party being prohibited from raising an issue or adducing evidence relevant to that issue where a prior judgement or order necessarily established certain matters as the legal foundation or justification for its orders and in later proceedings a state of fact or law is alleged or denied, based on the very matters which had been decided by virtue of the prior judgement or order: see for example the description by His Honour Justice Dixon (as he then was), in Blair v Curran [1939] HCA 23; (1939) 62 CLR 464.
Mr NGF contended that there were no new facts and no new issues raised by Mrs LVS in her applications which would justify the reopening of the substantive decisions of the Guardianship Tribunal and its orders in relation to both guardianship and financial management.
The problem with any reliance on the doctrine of issue estoppel is that a number of leading decisions in the Federal Court of Australia make it clear that its application must be read as subject to the statutory decision-making power entrusted by the legislature to the tribunal in question. As was confirmed in the case of Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649, issue estoppel cannot have any place in the proceedings of a tribunal to the extent that it is a rule of evidence where there is a statutory provision expressly excluding the rules of evidence from the considerations required by the particular tribunal. Subsection 38(2) of the CAT Act confirms and slightly varies the principle which applied prior to 1 January 2014 under section 55 of the Guardianship Act 1987. Sub-section 38(2) provides that this Tribunal is not bound by the rules of evidence and may enquire into and inform itself on any matter in such a manner as it thinks fit, subject to the rules of natural justice (and also subject to particular requirements in civil penalty and enforcement proceedings, which are not relevant here).
The Tribunal was satisfied that Mrs LVS is not prevented from bringing her applications by reason only operation of the doctrine of issue estoppel. It did not consider itself bound by the doctrine and in any case was satisfied on the facts of the matter, as dealt with more comprehensively below, that even if it had been bound by the doctrine, there was no issue estoppel.
Are Mrs LVS' applications frivolous?
Mr NGF submitted that Mrs LVS' applications raised no new facts or issues which would justify a "reopening" of the matters before the Tribunal. In particular, we understood Mr NGF to be contending that Mrs LVS' applications reveal that she confuses or misunderstands the role which her former husband Mr NAS has as financial manager and the limitations on him to make decisions about Mrs LVS' access to Miss BBS.
In Mr NGF's contention, the assertions in Mrs LVS' applications that Mr NAS is denying access cannot be valid and cannot raise any new issue. Mr NGF pointed out that questions of access and decisions to be made about access are matters for the Public Guardian as the appointed guardian of Miss BBS. Mr NGF also relied extensively on the statement made in the form of an affidavit by Mr NAS, sworn on 4 June 2014 which indicated Mr NAS' view of the current status regarding access arrangements for Miss BBS and the long history of various proceedings before the Guardianship Tribunal and the ADT.
In reaching a decision on this preliminary issue the Tribunal considered both of Mrs LVS' applications and the evidence which had been made available in respect of each of them.
In particular, the Tribunal considered the written report dated 16 June 2014 from the Office of the Public Guardian, commonly referred to as the Public Guardian's View, and gave that report considerable weight. The report indicates that since the Public Guardian was first appointed in 2011 its officers have experienced difficulties in contacting and obtaining meaningful information from several service providers assisting Miss BBS. The report demonstrates that service providers have been unable or reluctant to provide any information which the Public Guardian obviously needs in order to exercise its general obligations of supervision, and in particular its function of regulating Miss BBS' access to others and the terms of that access. The report indicates that service providers often direct the Public Guardian to speak to Mr NAS and reports that:
"Mr NAS has historically been difficult to contact and attempts by the office to contact Mr NAS have been very limited during the current order."
Essentially Mrs LVS' complaint is that she has inadequate access to her daughter Miss BBS. When that is coupled with the prima facie evidence from the Public Guardian that there has been difficulty in arranging such access because of communication difficulties with Mr NAS and with service providers, with whom he would be in contact, then we are satisfied that Mrs LVS' application cannot be regarded as "so obviously untenable that it cannot proceed," "manifestly groundless," or "so manifestly faulty that it does not admit of argument," to quote some of the formulations of the concept of a "frivolous" is cited above.
Mrs LVS also filed with the Tribunal a number of written statements. These expand upon her general concern for Miss BBS' well-being and the adequacy of service provision, as well as the adequacy of the authorities granted to the Public Guardian. Again, without making any judgement on these matters it is clear to the Tribunal that Mrs LVS' evidence appears to raise matters which lead to a real question for determination by the Tribunal.
The Tribunal was satisfied that it could not be regarded as fulfilling its statutory obligation under section 4 of the Guardianship Act to give the welfare in interests of Miss BBS paramount consideration and to consider the other matters required by section 4, nor could it comply with its general obligation under section 36 of the CAT Act, that is the "guiding principle" as explained on pages 12 and 13 below, if it is satisfied that there is a real issue before it but nevertheless makes finding that the relevant application is frivolous.
In relation to Mrs LVS' application for review of the appointment of Mr NAS as financial manager it is more difficult to establish and identify a substantive issue for consideration by the Tribunal. There is some weight to Mr NGF's contention that Mrs LVS appears to have misunderstood to some extent the obligations of a financial manager is opposed to those the guardian.
Nevertheless, and again without making any judgment on these matters at this stage, the Tribunal was satisfied that will that there are (at this stage, untested) contentions that there is a link between Mr NAS' financial decisions relating to Miss BBS' estate and the extent and terms of the service provision and care being made available for her generally. In her oral submissions to the Tribunal, Miss BBS' Separate Representative Ms NQC contended that there was some substance to the suggestion that there were issues relating to money and the payment for care and services which prevent or limit Mrs LVS in her access to her daughter Miss BBS.
The Tribunal also took into account statements in section 9 of Mr NAS' affidavit of 2 June 2014 that he has been subjected to substantial stress and anxiety. It is clear that Mr NAS believes that this is caused by many factors but they include the obligations he has as financial manager. In the relevant section of his affidavit (the pages of which are unnumbered, but which is towards the end of section 9), he says:
"...The mountain of paperwork, the keeping of receipts and preparing returns is onerous in its self. (sic.)Working full time, attending to [Miss BBS'] needs, liaising with various agencies and coming back to court time and time again is taking a strain on my health and my ability to provide much of my energy to [Miss BBS]."
Again, we emphasise that with the benefit of a full hearing Mr NAS would have the opportunity to provide explanation and verification that notwithstanding these pressures he remains a suitable financial manager. However it is clear in the Tribunal's view that Mr NAS' statements as cited above indicate that Mrs LVS' applications and the material lodged in respect of them bring real issues to the Tribunal for decision, including issues relating to Mr NAS' continuing suitability as financial manager.
In these circumstances the Tribunal could not be satisfied that either of Mrs LVS' applications is frivolous.
Are Mrs LVS' applications vexatious?
In submitting that Mrs LVS' applications are vexatious, Mr NGF relied on Mr NAS' extensive and detailed affidavit of 4 June 2014, which sets out in Section 2 a history of the applications before the Tribunal and (as noted above) in Sections 9 and 10 describe the impact on Mr NAS himself of the numerous applications and hearings which have been involved in the matter.
The essence of Mr NGF's contentions, as we understood them, was that the history of the matter and the repetitiveness of the numerous applications to tribunals cause prejudice to Mr NAS. We understood the contention to be that, when this is combined with what (in Mr NGF's submission) was a lack of genuine issues now before the Tribunal, the Tribunal would be justified in finding that Mrs LVS' current applications are vexatious.
The Tribunal cannot be satisfied that the current applications do not raise genuine issues. But quite apart from that, we cannot be satisfied that the fact that there have been numerous applications and hearings relating to Miss BBS or the fact that preparation for and participation in the hearings occupies substantial amounts of Mr NAS' time, and in that sense "cause him prejudice," justify the conclusion that the two current applications brought by Mrs LVS are vexatious.
The relevant section of the Dey Case cited above is apposite. We cannot see that the current applications in question are useless or futile and we have come to the view that granting Mr NAS' motion for dismissal would deprive Mrs LVS of the opportunity for the proper determination by this Tribunal of important issues relating to Miss BBS' welfare and interests.
The guiding principle in section 36 of the CAT Act
In the context of considering whether Mrs LVS' applications were frivolous or vexatious, the Tribunal also took into account the "guiding principle" set out in section 36 of the CAT Act, which the Tribunal is required to give effect to whenever it exercises any power under the Act or interprets any provision of the Act. The principle requires the Tribunal:
"to facilitate the just, quick and cheap resolution of the real issues in the proceedings."
Significantly, by operation of s 36(3), each of the parties to the present application is under a duty to give effect to the guiding principle. The Tribunal could not be satisfied that it would fulfil its obligation to comply with the principle in particular to provide a just and cheap resolution of what appeared to be substantial issues in the proceedings by dismissing Mrs LVS' applications. Conversely, the Tribunal found that in the circumstances of the present case the principle did not require the dismissal of Mrs LVS' two applications. It could not, in our view, be said that dismissal would properly facilitate the just quick or cheap resolution of the issues.
Are the applications "otherwise misconceived or lacking in substance?"
It follows from our findings outlined above that the two applications in question are not lacking in substance. Nor do we believe that they are "otherwise misconceived". Mrs LVS may not have a full appreciation of the distinction between the roles of a guardian and a financial manager. The way in which her applications are framed indicates that (amongst other things) she is relying on a nexus between her lack of access to her daughter Miss BBS and the actions of Miss BBS' father Mr NAS as financial manager. But even if she is wrong in drawing this nexus, or as to the extent of the nexus, that establishes only a misconception by Mrs LVS as to those particular matters. That does not justify the conclusion that the applications themselves are misconceived. As we have stated above, we cannot be satisfied that the current applications do not raise genuine issues. It must follow that we cannot find them to be so misconceived as to justify dismissal.
It follows that Mr NAS' application for dismissal will be refused and Mr NAS' dismissal application will be dismissed.
Guardianship
Is Miss BBS someone for whom the Tribunal could make a further guardianship order because she continues to have a disability which prevents her from being able to make important life decisions?
It was accepted by all parties that Miss BBS continues to have a severe intellectual disability. At its hearing on 28 August 2012 the Guardianship Tribunal had found on the basis of the evidence before it Miss BBS had a severe intellectual disability and that disability prevented her from making important life decisions. There was no new medical or related professional evidence available to the current Tribunal and Miss BBS' Separate Representative did not advise the Tribunal of any change to her condition or capability. On that basis the Tribunal was satisfied that Miss BBS was someone for whom it could make a further guardianship order, because she continues to have a disability which prevents her from being able to make important life decisions.
Should the Tribunal make a further guardianship order?
All participants were in consensus as to the need for a continued guardianship for Miss BBS by way of order of this Tribunal. Miss BBS' Separate Representative, Ms NQC agreed that there was such a need.
In considering whether a further guardianship order should be made the Tribunal had regard to the written evidence, including the account of Mr NAS as to his daughter Miss BBS' health and care arrangements as set out in his affidavit dated 4 June 2014, and also to the oral evidence of the hearing from Mr NAS, Mrs LVS and the representative of the Office of the Public Guardian.
The Tribunal gave consideration to the matters set out in section 4 of the Guardianship Act. The matters which seemed of particular relevance were the need to protect Miss BBS from neglect and any exploitation, the importance of preserving Miss BBS' family relationships and the need to encourage her, so far as possible, to live a normal life in the community and to restrict her freedom of decision and freedom of action as little as possible. As required by section 4, the Tribunal gave paramount consideration to the welfare and interests of Miss BBS.
The Tribunal also considered the factors prescribed by sub-section 14(2) of the Guardianship Act. It gave consideration to the views of Mr NAS as carer for his daughter Miss BBS and in particular it considered whether the services which Miss BBS currently needs could be provided to her on a practicable basis without the need for a further guardianship order. On the basis that Miss BBS' ongoing needs are complex and that in particular a decision about her access to others and the terms of that access continues to need to be made by an independent person they could not on a practicable basis be made without the need for a further order, the Tribunal was satisfied that it should make a further guardianship order.
What order should be made?
The views of Mrs LVS.
Mrs LVS informed the Tribunal in her written submissions and in addressing the Tribunal at the hearing that she believed that her former husband Mr NAS had denied her access and had frustrated her attempts to exercise reasonable access to their daughter Miss BBS. She asserted that Mr NAS' attempts to do this demonstrated that he did not have Miss BBS' interests at heart, in that he did not recognise the importance of Miss BBS' access to her mother.
Mrs LVS went further at the hearing. She asserted that prior to the Tribunal's directions hearing on 14 March 2014 she had had no idea of the times or places at which Miss BBS would be made available to have access to her. She asserted that the relevant service providers would not give her this information and that Mr NAS had not informed her of these details. The Tribunal was however unclear as to the efforts which Mrs LVS had made to obtain this information from the service providers or from Mr NAS.
However in addressing the Tribunal Mrs LVS ultimately conceded that she agreed that there should be a continuing access function and that it should be exercised by an independent party, namely the Public Guardian.
However Mrs LVS asserted strongly that there was a need for accommodation decisions in respect of her daughter Miss BBS to be made by a guardian and not left to Mr NAS. After further discussion it became clear that Mrs LVS sought the accommodation function for a guardian because of what she alleged were reasonably frequent changes of care facilities for Miss BBS. Mrs LVS also asserted that because of the uncertainty in her mind about whether Miss BBS was being properly cared for there was a need for her guardian to have the authority to make healthcare decisions on her behalf.
The Tribunal also understood Mrs LVS to assert that medical and dental consents for Miss BBS and decisions about her services should not be left to Mr NAS but that these functions should also be given to the Public Guardian. Mrs LVS was unable to point to any independent source of verification for her assertions of a need for a guardian to intervene in relation to accommodation healthcare, medical and dental consent or services decisions.
The views of Mr NAS and his Legal Representative.
Mr NAS provided an extensive and detailed affidavit, sworn on 4 June 2014. He also addressed the hearing. His Legal Representative Mr NGF also made submissions on his behalf.
Mr NAS submitted that he had done all that could reasonably be expected to establish a sensible and workable regime for the care of his daughter Miss BBS and had attempted to make proper arrangements for her access to others and in particular to her mother Mrs LVS. Mr NAS denied that he had ever refused access to Mrs LVS. Mr NAS described in some detail how he had made an amount of $1500 available in 2009 for Mrs LVS to use as a flexible respite package. This amount was lodged with the Disability Service. This amount had not been utilised by Mrs LVS and it is Mr NAS understands that until recently Mrs LVS had visited her daughter Miss BBS once in four years.
Mr NAS asserted that decisions regarding Miss BBS' accommodation, health care, medical and dental consents and services could all be managed informally by him. There were no current concerns with Miss BBS' health and he would have no hesitation in advising Mrs LVS if any health concerns came apparent. In relation to services Mr NAS asserted firmly that he could continue to manage the respite package. He said that to the extent that it was necessary he was happy to liaise more closely with the Office of the Public Guardian regarding bookings for services and Miss BBS' ongoing care generally.
In his submissions on behalf of Mr NAS, Mr NGF asserted that Mr NAS had shown himself to be a reliable carer for his daughter and that that there was no current need for the Public Guardian's function is to be extended. Mr NGF asserted that there had been a course of communication, particularly by email between his client Mr NAS and the Office of the Public Guardian.
The Public Guardian's view.
The Tribunal gave substantial weight to the "Public Guardian's View" report dated 16 June 2014 and the most helpful observations and views presented by the representative from the Office of the Public Guardian, at the hearing.
The Public Guardian's View confirmed that the Public Guardian had written to both Mr NAS and Mrs LVS on 29 November 2012 to advise that due to the financial issue of not being able to pay for a carer for access, the Public Guardian's ability to make access decisions was limited. However, the Public Guardian intervened with a service provider in March 2014 and the disability service had confirmed that it had $1500 (paid by Mr NAS as financial manager) available to pay for their staff to take Miss BBS for access visits but that the service provider would require two weeks' notice of a visit to ensure staffing. It appears that since that time contact between Miss BBS and Mrs LVS has proceeded on a fortnightly basis.
However given that the funding is due to run out, the Public Guardian submitted that there would most likely be an ongoing requirement for an independent substitute decision-maker in relation to access.
At the hearing the representative from the Office of the Public Guardian confirmed the details stated in the Public Guardian's View and contended that decision-making in relation to access had been made difficult for the Public Guardian because of Mr NAS' failure to provide the Public Guardian with sufficient information about services and as to when Miss BBS will be with a particular service provider. The Public Guardian had also received conflicting information from various service providers and had been informed by at least one service provider that they "did not wish to be involved" because they had not been authorised by Mr NAS to do so.
The Tribunal understood the Public Guardian's view to be that there was no demonstrated need for any additional functions.
The views of the Separate Representative.
Ms NQC, the appointed Separate Representative told the Tribunal that the experiences of the Public Guardian in communicating with service providers had been duplicated by her own difficulty in obtaining appropriate information from them. A Mr Z from a disability service provider had been adamant in insisting to her that no information would be provided "unless authorised by us to [Mr NAS]." Ms NQC submitted that these difficulties concerning communication lead to suspicions about a lack of transparency concerning Mr NAS' arrangement of care and services for his daughter.
Ms NQC did not contend that these facts and suspicions should lead to any finding that the arrangement of such matter should not be left with Mr NAS or that Mr NAS was in some way unsuitable to continue as financial manager. However Ms NQC did urge the Tribunal to issue appropriate directions to Mr NAS concerning his communication on such matters.
The Tribunal's analysis and conclusions.
The Tribunal accepted Mrs LVS' evidence and contentions as indicating that she had a genuine desire to see more of her daughter Miss BBS and, at least to some extent, that she was genuine in her attempt to vary the existing guardianship order to provide for additional functions for the Public Guardian. However the Tribunal did not feel that Mrs LVS' evidence was completely reliable. It was in some important instances incomplete; for example, there was no clear indication of how assiduously she had pressed her claim with service providers or with Mr NAS himself for more information about Miss BBS' availability for access to her.
The Tribunal accepted that Mr NAS was genuine in his assertions that he wished to provide an appropriate degree of access to Miss BBS to his former wife Mrs LVS. However it was clear, particularly from the evidence of the Public Guardian and the more recent observations of the Separate Representative, that their dealings with Mr NAS and service providers had reflected a communication barrier to making appropriate access arrangements and decisions.
The Tribunal was not persuaded that Mr NAS was, by virtue of this, in some way an unsuitable person to continue in his role as Miss BBS' financial manager or that he should not be permitted to make arrangements, as Miss BBS' carer, for her services and care. However it was clear to us that some appropriate communication protocol will need to be put in place and that can at least partially be achieved by the Tribunal issuing directions to Mr NAS as a party to both the substantive applications.
It followed that Tribunal could not be satisfied on the basis of the evidence that there was a current need for decisions about Miss BBS' accommodation, health care or services to be made by a guardian.
It followed that the guardianship order would be renewed. That is, the Public Guardian would continue to be appointed with authority to make decisions about what access Miss BBS has to others and the conditions of that access. The Tribunal came to the view that it would be appropriate for the order to be renewed for a period of 12 months rather than any longer period. In reaching this conclusion the Tribunal was motivated to ensure that a reasonably early review was available of the access arrangements and what would hopefully be improved communication between the principal parties in relation to all issues affecting the establishment of an appropriate ongoing regime for access.
A direction would be made to Mr NAS in the following terms:
[Mr NAS] is directed to provide within 21 days a written update to the Public Guardian, NSW Trustee and Guardian and [Mrs LVS] as to the current accommodation, services, care programs and care activities of [Miss BBS] and to provide further reports to those parties on those matters at intervals of approximately [six] weeks thereafter, until further direction or order of the Tribunal.
Financial Management
Is it in the best interests of Miss BBS for the appointment of her father Mr NAS as her financial manager to be revoked?
The views of Mrs LVS, mother and applicant.
Mrs LVS urged the Tribunal to replace Mr NAS as the financial manager. She contended that his actions as financial manager had substantially impeded the proper exercise of the Public Guardian's access function and had made it very difficult for her, Mrs LVS, to have access to Miss BBS. She also alleged that Mr NAS' conduct had disrupted the Public Guardian's attempts to resolve access issues. She accused him of obstructing funding and of withholding vital information relating to Miss BBS.
In Mrs LVS' view there should be an independent financial manager, namely NSW Trustee and Guardian. In that way there would be no conflict between the financial manager and herself. She also contended that as financial manager the NSW Trustee and Guardian could liaise more readily with the Public Guardian and this would benefit her daughter Miss BBS.
The views of Mr NAS and his Legal Representative.
Mr NAS, and Mr NGF on his behalf, submitted that he complied with all his obligations as a financial manager and had acted in all respects in the best interests of his daughter Miss BBS. At the hearing Mr NAS confirmed that although he had suffered some stress and anxiety as a result of the numerous proceedings involving his daughter he was able to continue in office as financial manager and it was not the carrying out of his obligations in that office which was the cause of that stress and anxiety.
Mr NAS also contended that if he remained as financial manager that would be in Miss BBS' best interest, because his control over her financial decisions allowed him to facilitate the provision of care and services to her; as well as control over her medical fund and medical and pharmaceutical expenses.
In his written submissions Mr NAS compared the current situation with the situation which had temporarily existed in 2011, when he had been removed by order of the Tribunal (which he later successfully appealed against). Mr NAS said that this had inevitably involved a loss of control by him over dealings with Miss BBS' medical fund and that bank accounts had been closed and unnecessary withdrawals made by the NSW Trustee and Guardian for legal expenses. He said at that time he constantly had to draw on his own funds in order to support Miss BBS properly.
Mr NGF contended that Mr NAS had fulfilled his obligations as financial manager and had demonstrated that his continued appointment would be in Miss BBS' best interests.
The views of the NSW Trustee and Guardian.
A representative from the NSW Trustee and Guardian provided a written report to the Tribunal and gave evidence by telephone at the hearing. The written report confirmed that accounts for Miss BBS' estate had been passed for the period ended 22 July 2013, that income to that period for the estate had been a little under $28,000 and outgoings for living expenses had totalled a little under $20,000. At the hearing the representative from the NSW Trustee and Guardian confirmed that so far as his office was concerned Mr NAS was compliant with his obligations as financial manager and that his office had no information which would warrant a review of the continuation of the appointment of Mr NAS as manager.
The views of the Separate Representative.
Ms NQC indicated that she made no submission that Mr NAS was unsuitable to continue as financial manager. Ms NQC supported the making of appropriate directions to Mr NAS with a view to improving his communications as to arrangements for Miss BBS' services and care, Ms NQC did not think that these directions should be onerous.
The Tribunal's analysis and conclusions.
Although, as with guardianship, the Tribunal accepted that Mrs LVS' position was dictated largely by her genuine concern for her daughter Miss BBS, the Tribunal could not be satisfied that Mrs LVS had made out in any persuasive manner many of her contentions as to Mr NAS' lack of suitability as financial manager. In particular the Tribunal could not conclude that Mr NAS had set out deliberately to obstruct either Mrs LVS all the Public Guardian in respect of access arrangements for Miss BBS.
The Tribunal noted that the Separate Representative was not asserting that Mr NAS was unsuitable to continue as financial manager.
Although Mr NAS had set out in his affidavit the stress and anxiety that he had experienced in the course of being financial manager, the Tribunal largely accepted his insistence that the stress and anxiety had been brought about by the pressure of hearings and by matters in issue with Mrs LVS, rather than by the obligations imposed upon him as financial manager.
The Tribunal also gave considerable weight to the reports from the representative from the NSW Trustee and Guardian to the effect that his office had no information and no experience in dealing with Mr NAS which would warrant their review of his appointment as financial manager.
The Tribunal had no doubt that Mr NAS genuinely cares for his daughter Miss BBS and had acted appropriately and in her interests as her financial manager. In the Tribunal's conclusion the evidence revealed insufficient grounds for concluding that it would be in Miss BBS' best interests for her father's appointment as financial manager to be revoked. However the need for Mr NAS to report to others, including Mrs LVS, on a more regulated basis was apparent in respect of financial management issues as well as guardianship issues and for those reasons the directions below would apply to Mr NAS in respect of both of the substantive applications.
Directions
In respect of both the guardianship and financial management orders the Tribunal decided to direct Mr NAS to provide within 21 days a written update to the Public Guardian, NSW Trustee and Guardian and Mrs LVS as to the current accommodation, services, care programs and care activities of Miss BBS and to provide further reports to those parties on those matters at intervals of approximately six weeks thereafter, until further direction or order of the Tribunal.
Costs Application
Mr NAS confirmed that he wished to pursue his application for a costs order.
The Tribunal noted that although it had received and accepted a formal application for a costs order (albeit one which was not in the form normally required by the Guardianship Division of this Tribunal) it had not received any indication of the particulars of the application as specified in the NCAT Procedural Direction of 2 January 2014, particularly paragraph 16 thereof.
The Tribunal therefore made directions in the form set out in Appendix B below [Appendix removed for publication] and ordered that the costs application would be determined on the papers.
**********
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
Decision last updated: 22 October 2014
0
11
2