EJ v Public Guardian

[2005] NSWADTAP 35

Appeal Panel - External

CITATION:	EJ v Public Guardian and ors [2005] NSWADTAP 35
PARTIES:	APPLICANT EJ FIRST RESPONDENT Public Guardian SECOND RESPONDENT EK THIRD RESPONDENT EL FOURTH RESPONDENT Guardianship Tribunal
FILE NUMBER:	058007
HEARING DATES:	20/06/2005
SUBMISSIONS CLOSED:	06/20/2005
DATE OF DECISION:	07/11/2005
DECISION UNDER APPEAL:	Matter number 2003/2746
BEFORE:	Hennessy N - Magistrate (Deputy President); Leal S - Judicial Member; Green J - Non Judicial Member
CATCHWORDS:	Standing
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	C/23983
DATE OF DECISION UNDER APPEAL:	08/18/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:
REPRESENTATION:	S Beckett, barrister FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT E Cho, solicitor
ORDERS:	Order made 20 June 2005: The appellant has no standing to bring this appeal as a person under section 67(2A)(a) of the Administrative Decisions Tribunal Act 1997.

1 We have made a decision in this matter and we are going to now give short oral reasons for that decision. The decision is that EJ does not have standing to bring this appeal. The appeal concerns a decision made by the Guardianship Tribunal on 18 August 2004. That decision was a statutory review of a limited guardianship order which had been made on 13 May 2003. The order would have expired on 12 May but on 11 May the review was adjourned for a period of three months. EJ is the daughter of the subject person and it was she who made the original application for a guardianship order.

2 The history of these proceedings is set out in the statement of Reginald John Benson dated 20 June 2005. It is apparent from that statement and from the attachments to it that there were a number of applications and reviews that related to the subject person. The most recent of those, as we have said, was the review of the guardianship order made on 18 August 2004. The question for the Appeal Panel is whether EJ is entitled to lodge an appeal in respect of that decision.

3 Section 67(2A) of the Administrative Decisions Tribunal Act 1997 sets out who is a party to an external appeal. That provision states that,

“The parties to proceedings before the Tribunal for an external appeal are as follows:
(a) any person who, being entitled to do so under an Act, has appealed to the Tribunal against the decision concerned (the appellant),

(b) any person who has been made a party to the proceedings in accordance with subsection (4) of the rules of the Tribunal,

(c) if the Attorney General intervenes in the proceedings under section 69 -- the Attorney General.

(d) any person specified by or under any other Act as a party to the proceedings.”

4 Mr Beckett, representing EJ, relies on paragraph (a) that is that EJ is any person who, being entitled to do so under an Act, has appealed to the Tribunal against the decision concerned. The Act on which Mr Beckett relies is the Guardianship Act and in particular s 3F of that Act. Under s 67A(2) of the Guardianship Act:

“An appeal to the ADT under this section may be made by a person who was a party to the proceedings (whether as provided by section 3F or otherwise) in which the decision of the Guardianship Tribunal was made.”

5 Section 3F is headed “persons who are ‘parties’ to proceedings under this Act.” It sets out in subsections 2 and 3 the persons who are respectively parties to an application to any proceedings for an application for a guardianship order and parties to any proceedings consisting of a review by the Tribunal of a guardianship order. Mr Beckett submitted that because EJ was the applicant in proceedings before the Tribunal in respect of an application for a guardianship order that she was also a party to a review in relation to that order.

6 We do not agree with that interpretation of s 3F. Subsections (2) and (3) are discrete subsections which apply respectively to an application for a guardianship order and to a review of a guardianship order. Consequently, unless EJ comes within s 3F(3), she will not have been a party to the review application before the Guardianship Tribunal and in turn pursuant to s 67A(2) of the Guardianship Act and s 67(2A) of the Administrative Decisions Tribunal Act cannot be an applicant to an external appeal.

7 The persons listed in subsections 3F(3)(a) to (f) are:

(a) the person if any who requested the review,

(b) the person the subject of the order,

(c) the spouse if any of the person the subject of the order if the relationship between the person and the spouse is close and continuing,

(d) the person who has care of the person the subject of the order,

(e) the guardian appointed under the order,

(f) any person whom the Tribunal has joined as a party under s 57A.

EJ does not fall within any of those categories and we find that the Guardianship Tribunal did not join her as a party under s 57A of the Guardianship Act .

8 EJ was notified of the review being undertaken by the Guardianship Tribunal and was invited to participate. However, she was not invited to apply to be joined as a party and did not make such an application. Mr Beckett pointed out that this leaves applicants for guardianship orders in a situation where while they may be a party to the original application, are not statutory parties to any ongoing reviews of the order once it has been made.

9 Ms Cho for the Guardianship Tribunal pointed out that that omission might be because typically an applicant for an original order is a social worker, a psychiatrist, a doctor or another professional person. That person may not have any involvement with the subject person some years down the track after an application has been made. Consequently they are not given a statutory right to be a party to a review.

10 While that is an understandable defence of s 3F(3), Mr Beckett also highlights the fact that in cases such as the one before the Appeal Panel today, EJ is a relative of the applicant who has opposed the guardianship orders consistently and who may very well wish to lodge an appeal against any orders that the Guardianship Tribunal makes on reviewing their order.

11 We acknowledge that our decision today leaves EJ in a situation where she does not have the ability to challenge the Guardianship Tribunal’s order, even though she is extremely interested in the order and is a close relative of the subject person. In those circumstances the Guardianship Tribunal may wish to consider the possibility of advising such people of their right under s 3F(3)(f) to be joined as a party under s 57A of the Guardianship Act. That course would ensure that people in EJ’s position are able to appeal against any decision of the Guardianship Tribunal with which they disagree. I will just clarify that the Guardianship Tribunal may ask them whether they are interested in applying to be joined as a party. They obviously have no right to be joined but should be given the opportunity to make such an application.

12 Our conclusion leaves the possibility that the Tribunal may be able to join EJ under s 67(2A)(b) of the Administrative Decisions Tribunal Act. The Appeal Panel today has expressed a preliminary view that because that subsection relates to “proceedings”, it may not have been intended to apply to a person wishing to commence proceedings, rather, it may have been intended to apply to a situation where proceedings are already on foot and a person is applying either to be joined as an applicant or as a respondent. However, we make no decision on the interpretation of that provision today and we note that Mr Beckett wanted to be given an opportunity to make submissions as to joinder under that section.