DOI v NSW Trustee and Guardian

[2018] NSWCATAD 187

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DOI v NSW Trustee & Guardian [2018] NSWCATAD 187
Hearing dates:	1 August 2018
Date of orders:	21 August 2018
Decision date:	21 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Scarlett, Senior Member
Decision:	The application will be dismissed.
Catchwords:	CONTEMPT – whether Contempt of Tribunal established - JURISDICTION – whether Tribunal has jurisdiction to make orders sought
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW), s.58 Civil and Administrative Tribunal Act 2013 (NSW), ss.64, 73 NSW Trustee And Guardian Act 2009 (NSW), s.72
Category:	Procedural and other rulings
Parties:	DOI (Applicant) NSW Trustee & Guardian (Respondent)
Representation:	Applicant in person     Solicitors: Mr Mackey, NSW Trustee & Guardian (Respondent)
File Number(s):	2018/00067388
Publication restriction:	IN ACCORDANCE WITH SECTION 64 OF THE CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2013 I prohibit the disclosure of the name of the Applicant, his mother or any of his siblings, or any information or other material which may identify those persons.

REASONS FOR DECISION

1. This is an Application for five interim orders made by the Applicant arising from an earlier interim hearing by Principal Member Titterton on 13 March 2018.

2. In his Application filed on 13 June 2018 the Applicant seeks five orders, which are set out as follows:

1   Temporary Interim Order to restrain T&G [1] from circumventing your previous assurance to myself (based on T&G’s false assurance to you) in regard to the use and deployment of an authorised visitor.

2   That you find T&G and their legal counsel in contempt. This is based on their false assurance to you, on record, and their background work/support of a ‘work-around’ to circumvent your previous assurance which was made, in good faith, to myself.

3   That you use whatever powers at your disposal to protect me being removed as my mother’s guardian, removed because I had accepted your assurance in good faith that it would not be to my detriment (nor my mother’s) and also that the appointment of an authorised visitor could not be circumvented.

4 That you use the strongest instrument or power at your disposal to force T&G to hand over the documents that they have refused to supply, relating to all 29 decisions under review, ordered by you at the previous hearing in accordance with Section 58 of the Administrative Decisions Review Act 1997 – including but not limited to the following two examples:

a   The order issued by T&G approving the engagement of an authorised visitor, and if T&G continues to fully co-operate with your order, that you order the retrieval of all documents held by the company ZEAL & Co in relation to my mother, including the contents of her file – whether they were provided to them by T&G or since generated or updated (ZEAL & Co being the apparent company T&G alleges to have engaged for the role of authorised visitor – however the written order has still not been provided confirming this)

b   Copies of all budgets/budget reviews and all documents relied on in formulating those budgets – T&G claims they were generated but can’t produce them. Also, absolutely no supporting documents have been provided – this is in breach of your orders.

5   That you place orders on T&G to prevent them from providing sensitive and personal information to my siblings. This is excessive information over and above what they are permitted to give to my siblings and well in excess to what they have provided me. This [is] in breach of T&G policy which entitles me to receive the same information provided to my siblings. Additionally as my mother’s principle [2] carer and/or legal guardian I am also entitled to receive additional consultation from T&G. However, the opposite has been occurring, breaching my mother’s privacy in the process.

1. NSW Trustee & Guardian

2. sic

3. The Respondent Trustee & Guardian opposes all five proposed orders on the ground that the Tribunal has no jurisdiction to make the orders.

4. The substantive Application before the Tribunal is an Application for Administrative Review by the Applicant, who states that he is the principal carer and legal guardian for his mother, whose estate was placed in the hands of the NSW Trustee & Guardian on 30 September 2015. He states that he requested that some 29 decisions of the Tribunal should be internally reviewed, but the Tribunal has not responded to or acknowledged his requests, now deemed to be refused.

5. On 13 March 2018, at an interim hearing, Principal Member Titterton made orders (and/or directions) that (in summary):

1. NSW Trustee & Guardian to give to the Tribunal and all other parties documents under s.58 of the Administrative Decisions Review Act 1997 on or before 29 March 2018.

2. The Applicant to give to the Tribunal and all other parties any material upon which he relies on or before 24 May 2018. Applicant to file an amended application setting out the decisions of the Respondent of which he seeks a review.

3. NSW Trustee & Guardian to give to the Tribunal and all other parties any material to be relied on by 14 June 2018.

4. The request by the Applicant to stay a decision made by the Respondent on 5 November 2017 appointing an Authorised Visitor refused.

5. Proceeding listed for directions on 19 June 2018.

6. Applicant’s mother joined as a Respondent and a separate legal representative appointed for her.

6. On 19 June 2018 at an interim hearing, Senior Member Montgomery made orders (and/or directions) that (in summary):

1. The NSW Trustee & Guardian to provide all s.58 documents and response to the Applicant’s correspondence by 29 June.

2. Applicant to provide his evidence and submissions by 24 August 2018.

3. NSW Trustee & Guardian to provide all evidence in reply, submissions and summary of legal arguments by 14 September 2018.

4. Order 6 made on 13 March 2018 joining the Applicant’s mother as a party to the proceedings vacated.

5. Application for interim orders listed for hearing 1 August 2018 at 2:00 pm.

Submissions

7. In a written submission filed with his interim Application, the Applicant stated that he had been served with an Application by his two siblings seeking to have him removed as his mother’s guardian and replaced by the Public Guardian. He described the reasons for this Application were that:

1. By his application for review of the Trustee & Guardian’s decisions and conduct he was being obstructive, challenging the power and authority of the Trustee & Guardian, and challenging the entry of an authorised visitor; and

2. The appointment of the Public Guardian could permit the Trustee & Guardian [to have] access to his mother via the authorised visitor.

8. This Application was withdrawn on 10 July 2018.

9. The Applicant sought an extension of time to provide additional reports and letters from various people who could assist his case.

10. As to his contempt claim, the Applicant stated that the Applicant’s legal counsel (the solicitor for the NSW Trustee & Guardian) had been in communication with the solicitor for his siblings and also said that he would not be agreeable to a stay on the appointment of an authorised visitor as it would caused discontent to his siblings or their solicitor. He claimed that the Trustee & Guardian had been working closely with his siblings and their solicitor and any undertaking that he gave to the Tribunal would also be passed on to them. Further, as soon as the solicitor, Mr Mackey, realised that any undertaking to the Tribunal could not be fulfilled due to a change in circumstances, that information should have been passed on to the Tribunal as a matter of urgency.

11. The Applicant made oral submissions in respect of the five interim orders which he seeks.

12. As to his proposed Order 1, the Applicant said that he had been given an assurance that an Authorised Visitor could not be engaged. His siblings, his brother and sister, filed an Application seeking to have him removed as his mother’s guardian. The Application was withdrawn on 10 July this year.

13. The Applicant also claimed that the Trustee & Guardian had misled the Tribunal and had supplied a bundle of documents five weeks late. He said there was no need for the appointment of an Authorised Visitor.

14. As to his proposed Order 2, the application to have the NSW Trustee & Guardian and its solicitor, Mr Mackey, dealt with for contempt of the Tribunal, the Applicant relied on his earlier written submission.

15. The Applicant’s third proposed order seeks that the Tribunal use its power to prevent him from being removed as his mother’s guardian. The Applicant conceded that the Application by his brother and sister to have him removed was withdrawn on 10 July.

16. The Applicant’s proposed Order 4 seeks that the Tribunal compel the NSW Trustee & Guardian to hand over documents that he seeks in respect of the 29 decisions under review in the substantive proceedings, which he says that Tribunal ordered to be supplied by 29 June. He said that the documents were provided late.

17. The Applicant’s fifth proposed order seeks to restrain the Trustee & Guardian from providing sensitive and personal information to his brother and sister. He said that the Trustee & Guardian had supplied a bundle of s.58 documents to his brother in breach of the Trustee & Guardian’s own policy and in breach of privacy legislation.

18. For the Respondent Trustee & Guardian, Mr Mackey referred the Tribunal to the decision of Principal member Titterton of 13 March 2018. He said that the barrister who was appointed to act as separate legal representative for the Applicant’s mother, Ms Falloon of counsel, had told the Tribunal on 19 June that there was no issue regarding the mother’s care that required her further involvement.

19. Mr Mackey went on to say that there had been false concerns about the level of care provided by the Applicant to his mother. He said it appeared to be excellent.

20. He submitted that the NSW Trustee & Guardian is a financial manager of last resort and had no input into the decision made in 2015 to appoint the Trustee & Guardian. He submitted that there is no reason for the Applicant to bring an application to revoke the appointment of the Trustee & Guardian as financial manager of his mother’s affairs.

21. Further, the Office of the Public Guardian is separate from the Trustee. The Trustee cannot be a guardian or incite anyone to be a guardian. He submitted that the Tribunal has no power to restrain the Trustee & Guardian.

22. As for the Applicant’s proposed Order 2, relating to contempt of the Tribunal, Mr Mackey submitted that the only assurance given was that contained in the third last paragraph of the decision of Principal Member Titterton made on 13 March 2018. That assurance was:

In relation to the requested stay, Mr Mackey told the Tribunal that the appointment of an Authorised Visitor could not operate without the consent of the person being visited (here [the Applicant’s] mother) and/or the co-operation of her family, which had not been forthcoming. As the Tribunal was advised that the appointment of the Authorised Visitor was not effective, and there was no mechanism for its enforcement, there appeared to the Tribunal to be little utility in staying that decision (said to have been made on 5 November 2017).

23. As to the Applicant’s proposed Order 3, Mr Mackey simply submitted that there was no challenge to the Applicant’s position as guardian.

24. The Applicant’s proposed Order 4 related to s.58 documents supposedly missing. Mr Mackey submitted that he had no idea about what was said to be a missing page of a particular document and tendered a copy of a submission relating to the proposed appointment of an Authorised Visitor which appears to have been produced on 29 March 2018. He said there were no further s.58 documents that could be produced.

25. In reply to the Applicant’s proposed Order 5, concerning his complaint about the Trustee & Guardian providing information to his brother and sister, Mr Mackey submitted that the Trustee & Guardian has an obligation to consult with all interested parties under the provisions of s.72 of the NSW Trustee And Guardian Act 2009 (NSW). He further submitted the Tribunal has no power to make an injunction or other order in terms of the proposed Order 5.

26. Mr Mackey also tendered a letter from the Trustee & Guardian (of which he was the author) to the Applicant dated 28 June 2018. The Applicant had taken exception to a reference on page 4 of that letter, which said:

We think it important that you know very early on that we do not believe that you have the standing or the authorisation to bring this application before the Tribunal and that the Tribunal does not have jurisdiction to hear the matter.

27. He explained that what was meant by that was not that the Applicant did not have the standing to bring his substantive Application, but only as to his standing to seek a review of all 29 of the decisions he seeks to have reviewed, on the basis that he is not a person affected by all of those decisions.

28. In reply, the Applicant said that, in respect of his proposed Order 2, the summary given by Principal Member Titterton in his decision of 13 March 2018 did not represent the detail or the extent of the assurances given on the day.

29. In respect of his proposed Order 3, the Applicant stated that he did not accept that the Trustee & Guardian was independent and he believed that Mr Mackey was acting in unison with his siblings. He did not believe that his brother and sister or their solicitor brought their application of their own accord.

30. The Applicant stated that he did not accept that Senior Member Montgomery addressed the question of letters and documents in the orders and directions of 19 June 2018.

31. Finally, as to his proposed order 5, the Applicant submitted that he had not been consulted by the Trustee & Guardian. His brother and sister had “got in first” and given their views so that the Trustee & Guardian was “blindsided”. He said there was no sign of any consultation with him.

Conclusions

32. The Applicant seeks five interim orders. The Respondent submits that the Tribunal has no jurisdiction to make any of these proposed orders.

33. First, the Applicant seeks an order to restrain the Trustee & Guardian from circumventing an assurance in regard to “the use and deployment of an authorised visitor”.

34. There is no basis for an order of this nature. There is no application before the Tribunal to appoint an Authorised Visitor. Whilst the Applicant’s brother and sister had brought an Application to have him removed as his mother’s guardian and replaced by the Public Guardian, which he said could permit the Trustee & Guardian to have access to the mother via an Authorised Visitor, this Application was withdrawn on 10 July.

35. Further, at the Interim Hearing on 13 March, Principal Member Titterton noted that Mr Mackey had told the Tribunal that the appointment of an authorised Visitor could not operate without the consent of the person being visited and/or the co-operation of her family, which had not been forthcoming. The Principal Member noted that the appointment of the Authorised Visitor was not effective.

36. In short, there is no proposal or application before the Tribunal for the use and deployment of an Authorised Visitor. This application has no merit, as there is nothing to make an order about. This application will be dismissed.

37. The second order sought by the Applicant is for the Trustee & Guardian and its legal officer, Me Mackey, to be found to be in contempt of the Tribunal, on the basis of an allegedly false assurance to the Tribunal.

38. There is no doubt that the Tribunal has the jurisdiction to deal with a person for contempt of the Tribunal committed in the face of the Tribunal or in the hearing of the Tribunal, and, in that regard, the Tribunal has the same powers as the District Court has in those circumstances (Civil and Administrative Tribunal Act 2013 (NSW), s.73(1)).

39. Subsection 73(2) of the Civil and Administrative Tribunal Act sets out what is meant by the words “contempt of the Tribunal”:

(2)   A person is guilty of contempt of the Tribunal if the person does or omits to do any thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court unless the person establishes that there was a reasonable excuse for the act or omission.

40. The contempt alleged is a supposedly false assurance to the Tribunal at the hearing on 13 March and the claim of the Trustee & Guardian’s background work or support to circumvent a previous assurance to the Applicant in regard to the use and deployment of an Authorised Visitor. The actions complained of refer to an allegation that Mr Mackey and, presumably, other employees of the Trustee & Guardian had in some way colluded with the Applicant’s brother and sister in inciting or manipulating them and their solicitor to bring the Application that they did, which has now been withdrawn.

41. This is denied by the Respondent.

42. There is no evidence whatsoever that the Trustee & Guardian or Mr Mackey acted in this way. Even if there were such evidence, it is difficult to see that this would constitute a contempt within the meaning of s.73 of the Civil and Administrative Tribunal Act.

43. There is no merit to this application and it will be dismissed.

44. The Applicant’s proposed third order seeks that the Tribunal use its power to protect the Applicant from being removed as his mother’s guardian. Whilst the Applicant’s brother and sister had brought an application for him to be removed as his mother’s guardian, that application was withdrawn on 10 July 2018, to the Applicant’s own knowledge.

45. Again, there is no application before the Tribunal to remove the Applicant as his mother’s guardian, so there is nothing to make an order about. It is difficult to understand why the Applicant chose to continue to argue this point.

46. There is no merit to this application and it will be dismissed.

47. The Applicant’s proposed Order 5 seeks that the Tribunal should force the Trustee & Guardian to hand over the documents that he claims they have refused to supply relating to all of the 29 decisions under review.

48. It was submitted on behalf of the Respondent that there are no further documents left that have not been supplied to the Applicant. The Trustee & Guardian has also queried the Applicant’s standing to seek a review of all 29 of these decisions, which is, in the Tribunal’s view, a matter that should be left for the final hearing itself.

49. It is noted that on 19 June 2018 Senior Member Montgomery directed that:

3.   NSW Trustee & Guardian are to give to the Tribunal and all other parties the following material: all evidence in reply, submissions and a summary of legal arguments on or before 14 September 2018.

50. The time for compliance with this direction has not expired. It gives ample time, in the Tribunal’s view, for the Trustee & Guardian to supply any further relevant material which has not been supplied to date. The Applicant stated that he did not accept that Senior Member Montgomery had addressed the question of letters or documents, but the Tribunal respectfully disagrees.

51. There is no need to make a further order or direction in this regard.

52. The Applicant’s proposed order 5 seeks that the Tribunal make orders to prevent the Trustee & Guardian from providing “sensitive and personal information” to the Applicant’s brother and sister.

53. As has been submitted, the Tribunal has an obligation under s.72 of the NSW Trustee And Guardian Act before taking any action in respect of a managed person to:

…determine whether the action is of such a nature that the person or a relative or relatives of the person should be consulted about the action,

And

…cause to be taken all steps that are reasonably practicable in the circumstances to give notice to the person or the relative or relatives of the person of the action,

54. It is doubtful, to say the least, that the Tribunal has the power to restrain the Trustee & Guardian from complying with the requirements of the NSW Trustee And Guardian Act.

55. The Applicant has submitted that the Trustee & Guardian has provided sensitive and personal information to his siblings, and, in the process, breached his mother’s privacy. However, he has provided no evidence as to what this sensitive and personal information might be and how it might breach his mother’s privacy, nor has he provided any evidence that this has actually been done.

56. There is no evidence to support the making of this order and the application will be dismissed.

57. The Applicant has been unsuccessful in establishing a ground for making any of the five orders which he sought in his Application for stay or interim order filed on 13 June 2018.

58. It follows that the Application will be dismissed.

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Endnotes

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: 21 August 2018