ECK v Public Guardian

[2020] NSWCATAD 197

Civil and Administrative Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:

ECK v Public Guardian [2020] NSWCATAD 197

Hearing dates:

28 May 2020

Date of orders:

12 August 2020

Decision date:

12 August 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

Dr J Lucy, Senior Member

Decision:

(1)   The disclosure of the names of the applicant, the applicant’s wife, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited.

(2)   The application is dismissed.

Catchwords:

ADMINISTRATIVE LAW – Merits review – Decision of Public Guardian concerning access visits between an intellectually-disabled woman and her father – Where applicant sought internal review of that decision - Whether conduct of internal reviewer was an administratively reviewable decision – Whether Tribunal had jurisdiction to review that conduct

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Government Sector Employment Act 2013 (NSW)

Guardianship Act 1987 (NSW)

Cases Cited:

DNP v NSW Trustee and Guardian [2018] NSWCATAD 212

KT v Sydney Local Health Network [2011] NSWADT 171

Texts Cited:

None cited

Category:

Principal judgment

Parties:

ECK (Applicant)
Public Guardian (Respondent)

Representation:

Solicitors:
Applicant (Self Represented)
Public Guardian (Respondent)

File Number(s):

2019/00350504

Publication restriction:

The disclosure of the names of the applicant, the applicant’s wife, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013.

REASONS FOR DECISION

1. The applicant is the father of an intellectually-disabled young woman (“the daughter”). The respondent, the Public Guardian, was appointed as the daughter’s guardian with the function of determining what access she has to others and the conditions of access.

2. The applicant sought internal review of a decision of the Public Guardian concerning the extent of his access to his daughter. He then sought, in the Tribunal, review of the conduct of the internal reviewer.

3. The Tribunal does not have jurisdiction to review the decision or conduct the subject of the applicant’s application. Accordingly, I have dismissed the application.

Background

4. The mother and father of the daughter are divorced. The daughter lives principally with the mother, but has, in the past, regularly visited the father.

5. The daughter spent every second weekend during term time and every second week during school holidays with the applicant and his wife between June 2014 and February 2019. For reasons which have not been fully explained, these regular visits stopped in February 2019.

6. The applicant made a request to the Office of the Public Guardian that the daughter spend time with him and his wife on 19 July 2019 and 23 August 2019. A staff member of the Office declined this request.

7. On 9 September 2019, the applicant emailed Ruth Guthrie, of the Office of the Public Guardian, asking whether the daughter could spend the upcoming weekend (from Friday evening to Sunday evening) with him and his wife. On 13 September 2019, Ms Guthrie replied by email, refusing the request, but indicating that the daughter could stay with them for the Friday night only. In her email, Ms Guthrie referenced the mother’s wishes and plans the mother had made for the daughter over the weekend.

8. On 17 September 2019, the applicant emailed Ms Guthrie again, reiterating his request for his daughter to stay overnight for two nights in a row. He indicated that the Public Guardian should not be deferring to the mother when making access decisions.

9. On 20 September 2019, Ms Guthrie emailed the applicant, stating that the Public Guardian consented to the daughter being picked up from her mother’s house on the Friday evening and being dropped back on the Saturday evening.

10. The applicant emailed Ms Guthrie back on the same day, stating that he would not be party to the erosion of his daughter’s freedoms, and reiterating the request that she be allowed to stay with him and his wife until the Sunday. Ms Guthrie replied that day, as follows:

“I understand there has been some time between visits for yourself and your daughter. This was to be a starting point to resume access, with the aim to go to full weekends again in the near future. The Public Guardian has made a decision, and you have chosen not to implement the decision. Your email suggests that you will accept two nights or nothing. Is this the case?”

11. On 3 October 2019, the applicant emailed Ms Guthrie again, asking whether his daughter could spend the upcoming Saturday and Sunday with him and his wife. Ms Guthrie responded as follows;

“We have attempted to coordinate a mutually acceptable access arrangement between yourself and [the mother], and this has not yet been reached. It is understood that an offer was also made by [the mother] for access from Saturday to Sunday, and you did not respond to this offer.

As previously advised, consent was provided for one overnight stay, incorporating two days, and you did not accept this decision so it was not implemented.”

12. On 15 October 2019, the applicant made application to the Public Guardian for an internal review. Whilst the nature of the review sought is not entirely clear, the Public Guardian interpreted the letter as an application to review the decision of 20 September 2019 to allow the daughter to spend one night only with the applicant and his wife on the weekend following 20 September 2019. That is a reasonable construction of the application.

13. On 6 November 2019, the Assistant Public Guardian Operations, Mr Hastings, wrote to the applicant in response to his internal review application. He stated that the decision to permit access to the daughter for one night only was “a starting point to reconsidering access arrangements after a six-month break.” He stated that he was “satisfied the decision accorded significant weight to [the daughter’s] welfare and interests whilst promoting family relationships.” He decided to affirm the decision.

14. On 7 November 2019, the applicant applied to the Tribunal for a review of the Public Guardian’s “decision.” He did not identify, in terms, what that decision was. However, he annexed to the application form Mr Hastings’ letter dated 6 November 2019.

Non-publication order

15. A person is prohibited, under s 65 of the NCAT Act, from publishing or broadcasting the name of any person involved in proceedings in the Guardianship Division of the Tribunal. The proceedings in the Guardianship Division of this Tribunal involving the daughter form the background to these proceedings. In addition, there is a public interest in maintaining the confidentiality of proceedings involving an intellectually-disabled woman. As the Tribunal has observed, it is desirable to maintain the privacy of people subject to financial management orders (DNP v NSW Trustee and Guardian [2018] NSWCATAD 212 at [6]), and the same principle applies in respect of people subject to guardianship orders.

16. For these reasons, I am satisfied that it is desirable to make an order prohibiting the disclosure of the names of the applicant, his wife, his daughter who is the subject of these proceedings and his daughter’s mother, under s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW) (“NCAT Act”). Accordingly, I have made such an order.

Decision the subject of review

17. The Public Guardian submitted that the Tribunal did not have jurisdiction to review the decision the subject of the application. On 17 March 2020, the Tribunal directed the parties to provide material in relation to the issue of the Tribunal’s jurisdiction to deal with the application.

18. In submissions filed with the Tribunal on 21 April 2020, the applicant submitted that the decision of Mr Hastings was an administratively reviewable decision. He submitted that Mr Hastings’ conduct was contrary to the Code of Ethics and Conduct for NSW government sector employees with which Mr Hastings was required to comply, by operation of the Public Service Commissioner Direction No 1 of 2015 made under the Government Sector Employment Act 2013 (NSW).

19. In an affidavit filed on 12 February 2020, the applicant requested the Tribunal to find that Mr Hastings failed to act in the best interests of the daughter by failing to perform his duty as the “administrator” when “feigning to conduct ‘internal review’”. The applicant alleged that Mr Hastings had breached s 3 of the Administrative Decisions Review Act 1997 (NSW), in that the objects of that Act included “to promote and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales” (s 3(d)). The applicant asked the Tribunal to refer Mr Hastings for disciplinary action.

20. When asked at the hearing to identify the decision he wanted reviewed, the applicant said it was the decision dated 6 November 2019, and referenced Mr Hastings’ letter to him of that date. He submitted that Mr Hastings had failed to conduct a review. He emphasized that his application was not made under Guardianship Act 1987 (NSW) but that it was made under Administrative Decisions Review Act.

21. The Public Guardian submitted that the Tribunal does not have jurisdiction in relation to the applicant’s complaint. It was submitted that the applicant was making comments in relation to conduct of reviewer, rather than seeking review of a decision made by the Public Guardian.

Tribunal’s administrative review jurisdiction

22. Section 30 of the NCAT Act provides for the Tribunal’s administrative review jurisdiction. It relevantly provides:

30 Administrative review jurisdiction

1. The Administrative Decisions Review Act 1997 provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator.

Note. See section 9 of the Administrative Decisions Review Act 1997.

…

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

Note. See section 7 of the Administrative Decisions Review Act 1997.

23. Section 55(1) of the Administrative Decisions Review Act provides that an application for an administrative review of an “administratively reviewable decision” may only be made by an interested person. An “administratively reviewable decision” is defined in s 7 of that Act as a decision of an administrator over which the Tribunal has administrative review jurisdiction.

24. Section 9(1) of the Administrative Decisions Review Act provides as follows:

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.

   25. As can be seen, in order for the Tribunal to have administrative review jurisdiction, enabling legislation must provide for the making of applications to the Tribunal for administrative review of the relevant decision. “Enabling legislation” is defined in s 4(1) of the Administrative Decisions Review Act as legislation (other than the Administrative Decisions Review Act or any statutory rules made under it) that:

“(a)   provides for applications to be made to the Tribunal with respect to a specified matter or class of matters, or

(b)   otherwise enables the Tribunal to exercise functions with respect to a specified matter or class of matters.”

26. The Guardianship Act provides, in s 80A, that applications may be made to the Tribunal for administrative review of certain decisions of the Public Guardian made in connection with the exercise of the Public Guardian’s functions under the Guardianship Act as a guardian.

Is there an administratively reviewable decision?

27. The “decision” the applicant seeks to challenge is the conduct of Mr Hastings when conducting an internal review. Whilst the term “decision” is defined very broadly in s 6 of the Administrative Decisions Review Act, an administrator’s conduct when conducting an internal review is not a decision in relation to which the Tribunal has administrative review jurisdiction. That is because there is no enabling legislation which provides that applications may be made to the Tribunal for an administrative review of conduct during an internal review (see Administrative Decisions Review Act, s 9(1)). As has been said in a different context, it is not the Tribunal’s function to conduct a judicial review (or any other review) of an internal review (KT v Sydney Local Health Network [2011] NSWADT 171 at [15]).

28. The applicant has made it plain that he is not seeking review, in the Tribunal, of the decision of the Public Guardian concerning access to his daughter.

29. The applicant’s application to the Tribunal is therefore misconceived. The Tribunal does not have jurisdiction to review the decisions (or conduct) the subject of the applicant’s application.

30. For these reasons, the applicant’s application is dismissed pursuant to s 55(1)(b) of the NCAT Act.

Orders

1. The disclosure of the names of the applicant, the applicant’s wife, the applicant’s daughter (who is the subject of these proceedings) and the applicant’s daughter’s mother, is prohibited.

2. The application is dismissed.

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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

Amendments

14 August 2020 - Paragraph [15] Final sentence corrected.

Decision last updated: 14 August 2020