DXG v Public Guardian

[2019] NSWCATAD 257

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DXG v Public Guardian [2019] NSWCATAD 257
Hearing dates:	10 October 2019
Date of orders:	11 December 2019
Decision date:	11 December 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J S Currie, Senior Member
Decision:	(1) The application is dismissed under s55(1) (b) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW). (2)   The Respondent is to pay the Applicant’s costs of and incidental to the hearing on 9 September 2019.
Catchwords:	ADMINISTRATIVE REVIEW- Decision by Public Guardian as guardian under guardianship order- application by Public Guardian for dismissal- application misconceived and lacking in substance; want of prosecution. Civil and Administrative Tribunal Act, 2013 (NSW); s55(1)(b) and (d). Dismissal order.   CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — Want of due despatch -No reasonable cause of action disclosed
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013, No.2 (NSW) Civil and Administrative Tribunal Rules 2014 Guardianship Act 1987 (NSW)
Cases Cited:	Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122 General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 Kabourakis v Medical Practitioners’ Board of Victoria [2006] VSCA 301; 25 VAR 449 Long v Metromix Pty Ltd [2019] NSWCATAP 198 Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 State of New South Wales v Plaintiff A [2012] NSW CA 248 Young v Holloway [1895] P. 87
Texts Cited:	Bullen & Leake & Jacob’s Precedents of Pleadings
Category:	Principal judgment
Parties:	DXG (Applicant) Public Guardian (Respondent)
Representation:	Counsel: M Dalla-Pozza (Respondent)   Solicitors: Applicant (Self Represented) Crown Solicitor (Respondent)
File Number(s):	2019/00193264
Publication restriction:	The publication of the name of the Applicant and the person subject to the decision under review is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act No.2 2013 (NSW). Note: the name of each such person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

REASONS FOR DECISION

What is this matter about?

1. The Applicant in these proceedings, whom I shall refer to as DXG, has a grandfather, whom I shall refer to as MZG, who is aged 101 years. MZG lived with DXG, who was his primary carer, prior to MZG having a severe stroke on or about 12 May 2018. As a result of his stroke MZG was admitted to Prince of Wales Hospital and subsequently to the Montefiore Nursing Home at Randwick.

2. On 2 July 2018, on the application of a Neurology Registrar at Prince of Wales Hospital, the Guardianship Division of the Tribunal made a short-term guardianship order for MZG, under which the Public Guardian was appointed as his guardian. That order was reviewed by the Tribunal at a hearing on 1 August 2018, when the Public Guardian was reappointed as guardian for 12 months, with authority to make decisions on his behalf about MZG’s accommodation, health care and access to others and the authority to provide substituted consent to his medical and dental treatment.

3. At that hearing DXG proposed himself for appointment as guardian but the Tribunal found that he was not suitable for appointment as he did not satisfy the requirements for suitability set out in s17(1) of the Guardianship Act. The Tribunal could not be satisfied that DXG would be able to perform the role of guardian having regard to the governing principles set out in section 4 of that Act and in particular the principle set out in paragraph (a) of that section, which would require him to give MZG’s welfare and interests paramount consideration.

4. On 20 August 2018 the Public Guardian, acting on the advice of a Consultant Neurologist who was a Professor of Neurology at the University of New South Wales, consented to a medical procedure for MZG under which he would have a percutaneous endoscopy gastric tube (a “PEG tube”) inserted. The Consultant Neurologist had recommended this procedure because MZG was experiencing difficulty in swallowing and was able to take only very little food by way of mouth. The Consultant Neurologist was not satisfied that MZG’s existing nasogastric tube was appropriate as a long-term solution and in any case it appeared to be uncomfortable for MZG.

5. The PEG tube was inserted on 1 November 2018. Its effect was apparently beneficial and MZG was discharged from the hospital shortly thereafter.

6. On 13 June 2019 the Public Guardian, exercising its authority as guardian under the guardianship order for MZG, decided that MZG should be admitted into hospital to have his PEG tube replaced (“the PEG tube replacement decision”).

7. These proceedings are all about the insertion, replacement and continued use of the PEG tube as part of MZG’s medical treatment and care. DXG’s continuing position is that he objects strenuously to the insertion of the PEG tube and to its continued use.

8. Shortly after the PEG tube replacement decision, on 19 June 2019, DXG applied to this Division of the Tribunal, seeking an administrative review and a stay of that decision.

9. As a result of the circumstances described under the next heading the Public Guardian now seeks the dismissal of the proceedings. My task is to decide whether or not they should be dismissed.

The course of the proceedings

Amendment of the application: the decisions under review

10. At a Directions Hearing before Principal Member Britton on 17 July 2019 the Tribunal ordered by consent that DXG have leave to amend his application for review to include:

“.. review of the ongoing decision of the Public Guardian to continue to use a PEG tube for the purpose of delivering nutrition to (MZG)”.

11. For clarity, I shall refer to the PEG tube replacement decision and what has been pleaded as the “ongoing decision” of the Public Guardian to continue the use a PEG tube to of deliver nutrition to MZG collectively as “the decision under review”.

12. At the Directions Hearing on 17 July 2019 the Tribunal imposed a timetable for the production by the Public Guardian of documentation (“the section 58 documents”) pursuant to section 58 of the Administrative Decisions Review Act (“the ADR Act”) and imposed a timetable for the production by each party of other material on which it relied.

Further replacement of the PEG tube

13. The procedure by which the PEG tube would be replaced was scheduled for 29 July 2019, but the replacement did not proceed on that date. It is asserted by the Public Guardian and apparently uncontested that the discontinuance was caused by DXG’s objections to the procedure. The PEG tube replacement procedure was carried out on 7 August 2019 and the Public Guardian asserts that it was completed without complication.

14. MZG was discharged from the hospital on 12 August 2019.

Subsequent hearings, orders and directions: DXG’s participation and compliance

15. On 14 August 2019, the Public Guardian provided written submissions and its section 58 documents.

16. DXG did not comply with the Tribunal’s timetable as directed on 17 July 2019.

17. The matter was set down for hearing before me on 9 September 2019. When the matter was called at 10 AM there was no appearance by DXG. I stood the matter down in the list until approximately 11 AM. It was only when DXG was telephoned by a senior Registry officer at approximately 10:20 AM that he advised his inability to attend the hearing. Immediately after advising that the telephone line connection was terminated without the intervention of the Registry officer. The Registry officer immediately sent DXG an email advising that he could make an application for adjournment, provided that he did so at the resumed hearing due to commence at approximately 10:45 AM. No further communication from him was received prior to the resumption of the hearing at 10.58am. Upon resumption I adjourned the hearing until 10 October 2019, made further directions as to the filing by each party of material and ordered that DXG pay the Public Guardian’s costs of the day.

18. DXG failed to file any further material in compliance with my directions of 9 September 2019.

Related proceedings

19. It was contended in submissions by the Public Guardian dated 4 October 2018 and not contested that there were related proceedings in relation to MZG in both the Guardianship and the Administrative and Equal Opportunity Divisions as well as in the Supreme Court. The Public Guardian submitted that DXG’s actions in relation to those matters is relevant to my consideration of the present dismissal application in the proceedings before me. That contention was unchallenged.

20. The related proceedings were:

1. a review by the Guardianship Division of the continuing appointment of the Public Guardian (NCAT proceedings 2018/00185970). This was initially listed for hearing on 23 September 2019 and then adjourned at DXG’s request. In its decision the Tribunal records that DXG’s adjournment application was made 5 minutes before the scheduled commencement of the hearing.

2. In his submissions to the Guardianship Division on adjournment DXG indicated that he had made two applications to the Supreme Court, one appealing the guardianship order and the other relating to an end of term review of the order. I have not been made aware of the status of those proceedings.

21. On 21 August 2019 DXG commenced proceedings separate to the present ones in the Administrative and Equal Opportunity Division of the Tribunal (NCAT proceedings 2019/00260778). By these proceedings DXG challenged the Public Guardian’s decisions made under its authority to make decisions about MZG’s access to others (“the access function”) granted by the guardianship order of 1 August 2018: see [2] above. On 3 September 2019 the Tribunal gave directions as to the filing of documentary material and submissions. DXG did not comply with those directions. On 3 October 2019 he sought an adjournment of the hearing of those proceedings which had been set down for hearing on the following day.

The Public Guardian’s application for dismissal and my further directions

22. By its application filed on 4 October 2019, the Public Guardian sought an order that the present application by DXG be dismissed pursuant to s 55 (1) (b) and (d) of the NCAT Act. Dismissal was sought on the basis of the following:

1. the failure of DXG as applicant to appear at this and in related proceedings (2018/0018 5970);

2. the failure of DXG to comply with timetabling orders made by the Tribunal;

3. the application being misconceived, in that there is no utility reviewing the decision which is sought to be reviewed, as those decisions have already occurred and (relate to) actions that have already been finalised; and

4. the duplication between the relief which the applicant seeks in these proceedings and in the other proceedings.

(The words in brackets at (3) have been added by me for clarity).

23. The Public guardian’s application for dismissal was accompanied by written submissions dated 4 October 2019. At the hearing on 10 October 2019, each of Counsel for the Public Guardian Mr Dalla-Pozza and DXG himself (who appeared in person) made oral submissions as to the dismissal application.

24. At the conclusion of that hearing I made further directions as to the filing of further written submissions by each of the parties, which for convenience of reference are set out in Appendix A to these Reasons. I also ordered that the application for dismissal be determined without any further hearing; that is, on the papers and I granted liberty to either party to apply.

25. The Public Guardian made further written submissions relating to its dismissal application in accordance with the timetable, on 14 November 2019.

26. Nothing further has been received from DXG and neither party has exercised its liberty to apply.

The real issues for determination

27. It follows that the real issues for determination by me are:

1. whether the proceedings should be dismissed because they are misconceived or lacking in substance;

2. whether the proceedings should be dismissed because has there been a want of prosecution of the proceedings; and

3. whether I should make any further orders or directions.

Relevant statutory provisions

28. The pertinent provisions of the NCAT Act, which reflect the grounds on which the Public Guardian’s dismissal application relies, appear in the following extract from s 55 (1) of that Act:

‘”(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

…

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance…

(d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.”

29. Other relevant statutory provisions, including sections 6,7 and 9 of the ADJR Act are set out in Appendix B to these Reasons.

The Public Guardian’s case for dismissal

Proceedings misconceived or lacking in substance: s 55 (1) (b)

30. Counsel for the Public Guardian referred me to State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at [14], where Ormiston JA held that “misconceived” referred to a misunderstanding of legal principle and “lacking in substance” encompassed an untenable proposition in fact or law. I was referred to several authorities which underline this distinction between “misconceived” and “lacking in substance” including most recently Long v Metromix Pty Ltd [2019] NSWCATAP 198 at [77].

31. The Public Guardian contended that the term “frivolous” has been given essentially the same meaning as “lacking in substance” in authorities stemming from the old case of Young v Holloway [1895] P. 87 and the word “vexatious” means a claim that lacks bona fides and is hopeless and tends to cause the opponent unnecessary anxiety, trouble and expense”, as noted in Bullen & Leake & Jacob’s Precedents of Pleadings.

32. In essence, the Public Guardian’s case was as follows:

1. DXG’s application is based on a misunderstanding of legal principle, which is sufficient to render the proceedings “misconceived”. The misunderstanding is that there can be an “administratively reviewable decision”; that is, one which this Tribunal has jurisdiction to review by the combined operation of sections 6, 7 and 9 of the ADR Act, constituted by the “ongoing decision” of the Public Guardian as referred to in the amended application. Although it was noted in the order summary from the Directions Hearing on 17 July 2019 that the amendment was made “by consent”, it seems clear and is uncontested that it was DXG as applicant who sought that amendment. The text of sections 6, 7 and 9 of the ADR Act are set out in Appendix B to these Reasons.

2. The amended application made on the basis of the so-called “ongoing decision” was misconceived and is also untenable at law (and for that reason lacking in substance within the meaning of s55(1) (b)), because the definition of “administrative reviewable decision” in section 7 of the ADR Act is narrower than might at first sight be anticipated in two vital respects.

1. Firstly, s7(2)(a) makes it plain that it is the enabling legislation that ultimately defines the “administratively reviewable decision” in any particular case.

2. Secondly, subsection 7(2) read as a whole distinguishes a “decision” from other “conduct” of an administrator and such conduct is only reviewable to the extent provided by the enabling legislation.

3. In the present case the enabling legislation is section 80A of the Guardianship Act (the text of which is set out in Appendix B to these Reasons). That section on a proper reading does not provide support for either of the following propositions:

1. that under the Guardianship Act the Public Guardian makes “ongoing” decisions of the type which DXG seeks to review; and

2. that this Tribunal has a general power of review of the conduct of the Public Guardian in relation to the performance of its functions under the Guardianship Act.

4. Although the language of section 80A is sufficiently broad to indicate that the Public Guardian’s functions under the Guardianship Act can and will be ongoing (as they invariably will be), the section expressly distinguishes “functions” from “decisions” which are made in connection with the exercise of those functions. It is submitted that that distinction is deliberate and that by it Parliament imposed a distinction between functions of the Public Guardian (which are ongoing) and its decisions (which are made at various discrete points of time during the course of a guardian’s exercise of those functions).

5. In short, what is made administratively reviewable by the Tribunal are decisions, not the ongoing functions of any guardian and nothing in the ADR Act (or any other legislation) makes these broader functions “conduct”.

6. Although it is true that s6(1) (g) of the ADR Act defines “decision” so as to include “the doing or refusing to do any other act or thing”, it cannot be the case that once a guardian has made an “administratively reviewable decision”, its failure to reconsider the decision becomes a further “decision” (or conduct) that gives right to a fresh or different right to review by this Tribunal.

7. The words “refusing to do” in s6(1) (g) cannot mean that the administratively reviewable decision becomes an ongoing decision over which there is a right of review by the Tribunal at any point in time for as long as the decision remains in effect. If that were the case, there would be no finality to any decision of an administrator. Every time this Tribunal handed down a decision adverse to an applicant on the review of administratively reviewable decision, the aggrieved applicant could thereafter launch fresh proceedings seeking the review of the failure of the decision-maker to remake its decision. That would fly in the face of the “finality” principle and would make otiose the time limits expressed in s 55 (2) of the ADR Act and the referable provisions in para 24 (3) and (4) of the Civil and Administrative Tribunal Rules.

8. The principle of “finality” strongly militates against a construction of the relevant provisions which would allow one administratively reviewable decision to be constituted by an “ongoing decision” of the Public Guardian as pleaded by the Applicant: see Kabourakis v Medical Practitioners’ Board of Victoria [2006] VSCA 301; 25 VAR 449 at [83] - [85] and Minister for Indigenous Affairs v MJD Foundation Limited [2017] FCAFC 37 at [146], [204].

Want of prosecution of the proceedings: s 55 (1) (d)

33. The Public Guardian conceded, and I accept, that the following “hurdles” must be negotiated in establishing want of prosecution for the purposes of a dismissal application.

1. Firstly, a plea of “want of prosecution” will not succeed unless the relevant party’s conduct amounts to an abuse of process or has caused such prejudice to another party that it would not be fair to commit the matter to go to trial: K & J Vision Pty Ltd v Jows Construction Pty Ltd [2019] NSWCATAP 139 at [45]. However, that case is also authority for the proposition that it is not necessary that the applicant’s conduct to have been deliberate and contumelious. It was further contended that section 56 of the NCAT Act had reduced the stringency of this test: State of New South Wales v Plaintiff A [2012] NSW CA 248 per Basten JA at [17]-[18] and Bousgas v HD Constructions (Aust) Pty Ltd [2017] NSWCATAP 122.

2. Secondly, any application for dismissal under section 55 stands to be determined by reference to the principles in General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125. That is, the power must be exercised with “great care” and only in circumstances where the proceedings are “so obviously untenable that (they) cannot possibly succeed” or “manifestly groundless”. My attention was drawn to the requirements set out by the Chief Justice, Sir Garfield Barwick in General Steel at [130], which suggest that the ultimate question is whether the proceedings may be demonstrated to have been “futile”, indicating that the utility of the proceedings is at least a relevant consideration.

34. Counsel for the Public Guardian submitted that the repeated delays by DXG as applicant amount to a want of prosecution in the proceedings and suggest that he had no bona fide intention of prosecuting the review or any appeal relevant to the initial PEG tube decision or the decision under review and so amounts to an abuse of process within the terms considered in K & J Vision ( cited at [32] (1) above).

DXG’s case in response

35. As noted above, despite the delay in the commencement of the hearing on 10 October 2019 caused by DXG’s late arrival, he did appear when the matter was recommenced. He made oral submissions which covered his application generally and the dismissal application by the Public Guardian. I took these into account in conjunction with written submissions made by DXG which were apparently were an attachment to his email to the Registry of 9:01 on the day of the hearing: 10 October 2019. These papers contained submissions as to the principal application and as to the dismissal application.

36. I understood DXG’s principal contentions which he directed to the dismissal application to be as follows:

1. The dismissal application was “last minute” and he had received insufficient notice of it, that having been received on 8 October 2019 (two business days prior to the hearing).

2. In light of “progress in past hearings” it would be inappropriate for the Tribunal to dismiss the proceedings.

3. The Public Guardian “continues to create unreasonable difficulty for (DXG)” in the proceedings through late service, serving illegible documents and being unavailable to discuss the matter.

4. The Public Guardian by its action is causing DXG unnecessary anxiety, trouble and expense.

5. In making decision under review and (as I understood it to be asserted) in seeking a dismissal of the application, the Public Guardian had made no reference to the best interests of MZG, but instead the dismissal application focussed on the actions of DXG himself. I understood DXG to contend that on a global approach, dismissal of the proceedings would not further the interests and welfare of MZG.

6. Although DXG conceded that he may have disadvantaged the Public Guardian to a minimal extent by his delay and failure to comply with timetables, any such delay caused to the progress of the proceedings was outweighed by delays caused by the Public Guardian and that the general approach of the Public Guardian (what DXG described as the Public Guardian’s “vibe”) was to derail the proceedings by any means and pursuing the dismissal application was part of that general approach. For example, the Public Guardian had provided him on occasions with documentation which was poorly printed or otherwise unreasonable and had ignored or perhaps concealed evidence from another medical practitioner which was contrary to that received from the Consultant Neurologist (who had recommended the insertion of the PEG tube). In particular he had evidence from a Registrar at St Vincent’s Hospital that oral root treatment might be preferable to treatment by way of a PEG tube. In answer to my question, DXG confirmed that this opinion was provided when MZG was admitted to that hospital earlier in 2018.

7. DXG conceded that there was no evidence which would enable the Tribunal to overrule the decision under review and substitute some other decision but in DXG’s submission he had been prevented from obtaining such evidence and that was an indication of the Public Guardian’s prejudice against him. I did not understand DXG to provide any further particulars of those assertions.

8. It was clear that the Public Guardian has had and has now no intention to review the continuation of the use of the PEG tube.

9. Proceedings should be allowed to continue because the relevant legislation is “broad” and emphasises the welfare and interests of the person in the position of his grandfather, MZG.

10. I understood DXG to indicate that any dismissal of the proceedings would be “deeply prejudicial” to himself and to MZG.

37. I did not understand the assertion in paragraph (2). I found the assertions in (1), (3), (4), (6), the second part of (7) and (8) above to be without foundation and unsupported by the facts and those in (5) and (9) to be unpersuasive. I took into account any possible prejudice to MXG by reason of any dismissal of the proceedings, as referred to at (10), but was unable to perceive how dismissal could be “deeply prejudicial” to him. I gave minimal weight to the effect of dismissal on DXG himself.

DXG’s adjournment application

38. For completeness I should record the following:

1. having heard these oral submissions of the parties, I adjourned the matter for approximately one hour to consider the orders or directions which would then be appropriate;

2. on resumption DXG indicated that during the adjournment he had obtained some initial advice from a barrister and now sought an adjournment of the hearing of the matter generally so that he could obtain more detailed advice.

3. Mr Dalla-Pozza for the Public Guardian opposed the adjournment application on the basis that the matter had clearly been set down for hearing on this day, that DXG as applicant had received adequate notice of the hearing and there had been no mention of legal representation at any prior stage and that the dismissal application should now be considered.

39. I indicated to the parties that I was not proposing to make a decision on the dismissal application on this day, but rather to give directions to each of them as to the filing and service of further written submissions on that application and that, subject to the right of either party to apply, I proposed to decide the dismissal application on the papers and to adjourn the hearing of the substantive application pending resolution of the dismissal application. It followed that DXG could obtain legal advice on his position and with the benefit of that advice and any legal assistance could provide further written submissions in relation to the dismissal application.

40. On that basis I made the order and directions as set out in Appendix A.

Consideration

Proceedings misconceived or lacking in substance

41. I found the Public Guardian’s detailed and analytical submissions on the issue of whether the proceedings were misconceived or lacking in substance to be persuasive.

42. In particular, notwithstanding the apparent intention of the legislature to define broadly the key terms “decision” (in section 6 of the ADR Act), “administratively reviewable decision” (in section 7) and “administrative review jurisdiction” (in section 9):

1. it was clear that the provisions of those sections in combination did not produce the result that the Public Guardian’s actions, or any lack of a decision by it as to MZG’s PEG tube constituted an administratively reviewable decision.

2. In particular I was persuaded on the basis of the authorities cited by Counsel for the Public Guardian, particularly as referred to at [31] (3) and (4) above that the apparently broad reach of the Tribunal’s jurisdiction to review an administrative decision is limited by the proper application of ss 7(2) and 9(1) of The ADR Act and by the application of section 80A of the Guardianship Act (being the relevant “enabling legislation”).

3. I was also persuaded that the analysis of those provisions by Counsel for the Public Guardian which I have summarised at [31] (3) to (5) and the proper application of the principle of “finality” is referred to at [31] (8) is correct and that it follows that there cannot be no administrative review jurisdiction of the Tribunal in relation to the so-called “ongoing” decision of the Public Guardian; which is more accurately seen as the continuation, without intervention by the Public Guardian, of the status quo arising from its initial decision to insert a PEG tube.

43. I am satisfied that for these reasons these proceedings commenced by DXG are misconceived and lacking in substance and that he is application must therefore be dismissed.

Want of prosecution

44. Even if I had not concluded as set out at [41], I would have dismissed the proceedings on the basis of DXG’s want of prosecution.

45. I was satisfied that DXG’s conduct of the proceedings, in particular the substantial delays which he has brought about, his failure to appear on occasions and failure to respond in a timely manner or in many cases at all to the directions of this Tribunal, amounted to an abuse of process.

46. That abuse of process has caused such prejudice to the Public Guardian that it would not be fair to commit the matter to go to trial.

47. I was satisfied it would be in accordance with the cautionary principles stated in General Steel Industries, cited at [32] (2), for the proceedings to be dismissed.

48. I concluded that the proceedings should be dismissed for want of prosecution. I found nothing in DXG’s submissions sufficient to persuade me to an alternative conclusion.

Dismissal

49. It must follow that the proceedings should be dismissed.

Other orders

50. The Public Guardian did not seek a general order for costs. However, by my order of 9 September 2019, I ordered DXG to pay the Public Guardian its costs of that day. No other order or direction has been requested and none seems appropriate.

51. I ordered accordingly.

Orders

1. The application is dismissed under s55(1) (b) and (d) of the Civil and Administrative Tribunal Act, 2013 (NSW).

2. The Respondent is to pay the Applicant’s costs of and incidental to the hearing on 9 September 2019.

**********

APPENDIX A

Orders and Directions 10 October 2019

Order

The proceedings are adjourned part-heard for further hearing on a date to be set by the Divisional Registrar, subject to the Directions below.

Directions

(1)   The Applicant*is to give to the Respondent*and to the Tribunal by 31 October 2019, any written submissions on which he relies in respect only of the Respondent’s application for dismissal.

(2)   The Respondent is to give to the Applicant and the Tribunal by 14 November 2019 any written submissions in response.

(3)   The Applicant is to give to the Respondent and the Tribunal by 28 November 2019 any further short written submissions in response to those of the Respondent as to its application for dismissal.

(4)   By consent, the application for dismissal is to be determined without any further hearing of that issue (on the papers).

(5)   The Tribunal will proceed to make its decision as to the application for dismissal on or shortly after 28 November 2019, on the basis of submissions then received.

(6)   Each party has liberty to apply, on 7 days’ notice to the other.

(*References to the Applicant and the Respondent are to those parties to the substantive proceedings, not to the parties to the application for dismissal).

appendix b- statutory provisions

Administrative Decisions Review Act 1997 (NSW)

6. Meaning of “decision”

(1)   General meaning

"decision" includes any of the following:

(a)   making, suspending, revoking or refusing to make an order or determination,

(b)   giving, suspending, revoking or refusing to give a certificate, direction, approval, consent or permission,

(c)   issuing, suspending, revoking or refusing to issue a licence, authority or other instrument,

(d)   imposing a condition or restriction,

(e)   making a declaration, demand or requirement,

(f)   retaining, or refusing to deliver up, an article,

(g)   doing or refusing to do any other act or thing.

(2)   Decision made under enabling legislation For the purposes of this Act, a decision is made under enabling legislation if it is made in the exercise (or purported exercise) of a function conferred or imposed by or under the enabling legislation.

(3)   Decisions made without power For the purposes of this Act (and without limiting subsection (2)), a decision that purports to be made under enabling legislation is taken to be a decision made under the enabling legislation even if the decision was beyond the power of the decision-maker to make it.

(4)   Failure to make decision on basis that beyond power For the purposes of this Act (and without limiting subsection (2)), a refusal of a decision-maker to make a decision under enabling legislation because the decision-maker considers that the decision concerned cannot lawfully be made under the enabling legislation is taken to be a decision made under the enabling legislation to refuse to make the decision requested.

(5)   Failure to make a timely decision taken to be failure to make a decision For the purposes of this Act, a failure by a decision-maker to make a decision within the period specified by the enabling legislation concerned for making the decision is taken to be a decision by the decision-maker at the end of the period to refuse to make the decision.

7. Meaning of “administratively reviewable decision”

(1)   An "administratively reviewable decision" is a decision of an administrator over which the Tribunal has administrative review jurisdiction.

(2)   For the avoidance of doubt (and without limiting subsection (1) or section 6):

(a)   the conduct of an administrator (or a refusal by an administrator to engage in conduct) is an administratively reviewable decision if enabling legislation identifies that conduct or refusal as conduct or refusal over which the Tribunal has administrative review jurisdiction, and

(b)   in its application to any such conduct or refusal by an administrator, any reference in this Act (however expressed) to an administrator making an administratively reviewable decision includes a reference to an administrator engaging or refusing to engage in the conduct.

9 When administrative review jurisdiction is conferred

(1)   The Tribunal has

"administrative review jurisdiction" over a decision (or class of decisions) of an administrator if enabling legislation provides that applications may be made to the Tribunal for an administrative review under this Act of any such decision (or class of decisions) made by the administrator:

(a)   in the exercise of functions conferred or imposed by or under the legislation, or

(b)   in the exercise of any other functions of the administrator identified by the legislation.

(2)   If enabling legislation makes provision for applications to be made to the Tribunal in respect of an administratively reviewable decision subject to certain conditions, the Tribunal has jurisdiction under the enabling legislation only if those conditions are satisfied.

(3)   A provision of enabling legislation that provides for a decision of an administrator to be administratively reviewable by the Tribunal under this Act extends to the following:

(a)   a decision made by a person to whom the function of making the decision has been delegated,

(b)   if the provision specifies the administrator by reference to the holding of a particular office or appointment--a decision by any person for the time being acting in, or performing any of the duties of, the office or appointment,

(c)   a decision made by any other person authorised to exercise the function of making the decision.

(4)   If an administrator makes an administratively reviewable decision by reason of holding or performing the duties of an office or appointment and then ceases to hold or perform the duties of the office or appointment, this Act has effect as if the decision had been made by:

(a)   the person for the time being holding or performing the duties of that office or appointment, or

(b)   if there is no person for the time being holding or performing the duties of that office or appointment or the office no longer exists--such person as the President (or another person authorised by the President) specifies.

(5)   Nothing in this section permits administrative review jurisdiction to be conferred on the Tribunal by a statutory rule unless the conferral of jurisdiction by such means is expressly authorised by another Act.

Guardianship Act 1987 (NSW)

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.

Civil and Administrative Tribunal Act, No. 2, 2013 (NSW)

55 Dismissal of proceedings

(1)   The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances:

(a)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate,

(b)   if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(c)   if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings,

(d)   if the Tribunal considers that there has been a want of prosecution of the proceedings.

(2)   The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

Civil and Administrative Tribunal Rules 2014

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…

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: 11 December 2019