FI v New South Wales Trustee and Guardian (No. 2)

[2010] NSWADT 43

CITATION:	FI v New South Wales Trustee and Guardian (No. 2) [2010] NSWADT 43
DIVISION:	General Division
PARTIES:	APPLICANT FI RESPONDENT New South Wales Trustee and Guardian
FILE NUMBER:	083092
HEARING DATES:	14 December 2009
SUBMISSIONS CLOSED:	14 December 2009
DATE OF DECISION:	11 February 2010
BEFORE:	O'Connor K - DCJ (President)
CATCHWORDS:	Guardianship – Review of decision of Guardian – Application for further adjournment of hearing – Refused – Respondent’s application for dismissal of proceedings – Granted – Administrative Decisions Tribunal Act 1997, s 73(5)(g)(iii)
CASES CITED:	FI v Public Guardian [2008] NSWADT 263
REPRESENTATION:	APPLICANT No appearance RESPONDENT S Free, counsel / E Mee, Crown Solicitor's Office
ORDERS:	1. Applicant’s written application for adjournment refused. 2. Respondent’s application for dismissal granted.

The following is an edited text of the oral reasons given at the close of the hearing on 14 December 2009. There was no appearance by FI. The appellant has requested written reasons pursuant to s 89 of the ADT Act.

1 HIS HONOUR: The Tribunal has had before it an application brought by the mother of a daughter who is in long term care in the circumstances that I outlined in a decision published in September 2008: see FI v Public Guardian [2008] NSWADT 263. The mother’s application is for an advanced care plan to be put in place which would allow for the withdrawal of life support assistance in certain circumstances.

2 The decision in September 2008 dealt with the issue of the applicable law where the Public Guardian (now the New South Wales Trustee and Guardian) works within a statutory framework. The common law position was relatively clear. There was an argument about whether the common law position applied within the statutory framework. The essence of that ruling is that it did.

3 The matter has now gone on for over a year since that point during which time various suggestions and discussions have occurred involving the office and FI. The application was due to be heard here on 6 November 2009 and again today. On both occasions we have been confronted with adjournment applications from FI. On the last occasion I indicated that if there was no further progress able to be achieved today I would be minded to consider dismissing the matter.

4 We have received a further set of communications this morning from FI but were unable to contact her at the time fixed for this hearing at the telephone numbers that she has given us, so we are again in a position where she has not appeared.

5 The mother, FI, obviously remains deeply concerned for what she considers to be the welfare of her daughter. The Trustee and Guardian is vested with health care responsibility and there is a plan that has been developed which was met with criticism and doubt by FI. So one of the matters we were going to look at today was the justifiability or otherwise of that plan.

6 The objective of the Tribunal in this case has been to seek to reach the correct and preferable decision in the circumstances.

7 This clearly is a continuing relationship. It is always open, as Mr Free’s submissions infer, for FI to re-agitate this matter. Circumstances can change, new decisions may have to be taken by the Public Guardian.

8 Mr Free in his submissions has referred to a number of matters. First of all he has referred to the weakness of the application for adjournment in that it is not supported by any medical evidence as to FI’s current condition. There are a number of assertions in the material by FI about her condition.

9 Then the material is the subject, as Mr Free points out, of internal incongruities. At one stage FI is saying that she is not well enough to pursue this application, then she has an alternative body of material which is in fact seeking to address the application. This circumstance, on its face at least, suggests that she does have some capacity to contribute effectively to the process.

10 Much of her material presents the issues that we are called on to address in a manner of contestation. The role of the Tribunal is to seek to reach the correct and preferable decision having regard to all relevant material. The better way I think to see the role of the Tribunal in decisions reviewing administrative decisions is that it is engaged in an exercise of inquiry. There is no strict contest.

11 We are looking at a matter that has been raised by A in relation to B (the guardian) and it is a process of inquiry that we are engaged in. So ideally we should not see these cases as involving winners and losers.

12 Cases of the present type are affected by the extra dimension that there is a third person, who is the subject of guardianship and who is the person whose interests must be the focus of attention. In this case she is not able to express her own wishes, which obviously complicates the exercise.

13 So this is an inquiry into what is in the best interests of the subject person. There is a community interest obviously in bringing an end to controversy.

14 The guardian vested with responsibility for DFI’s health care needs to be able to get on with its task in as uninterrupted a way as can be achieved. Obviously an application of the present kind has already caused the diversion of significant resources of that office to the resolution of this matter.

15 I agree with Mr Free that there could be no confidence that were we to grant another adjournment that we would be any better placed by that time, which is sixteen weeks from now.

16 There are also remarks in the communications that indicate hostility to these processes and a lack of confidence in this institution (the Tribunal). There is nothing I should really say in response to that other than to make the observation that comments of that kind have been made on a number of occasions in communications by FI in this case.

17 As it happens, this is the jurisdiction vested with the statutory responsibility of review. It may be that FI has an alternative course open to her that involves invoking the protective jurisdiction of the Supreme Court.

18 The submissions refer to another public interest consideration that supports refusal of this application and that is the state of affairs in respect of the personal injuries proceedings in Queensland. These are proceedings commenced on behalf of the protected person DFI.

19 Obviously the motor vehicle accident that led to her incapacitation was a shocking one and horrific for her. It is clearly in the interest of the estate and the future management of her health care needs that any funds that might be available by way of a damages verdict be obtained.

20 So to the extent that these proceedings here are delaying the resolution of those proceedings, that is clearly a factor that militates in favour of bringing these proceedings to an end so that at least those proceedings can be continued efficiently.

21 For the various reasons I have given, in my view Mr Free’s submissions must be endorsed.

22 I, therefore, refuse the application for adjournment and dismiss the application on the ground that the applicant has failed to appear in the proceedings.

23 The ground that was canvassed on the previous occasion, I should note I think in these reasons, is not pressed: that is that there has been a want of prosecution of the proceedings. I think it is fair to say that the proceedings have been well prosecuted at certain points but we have reached a situation now where it seems to me it would be preferable, as I think is also inferred by Mr Free’s submissions, that this Tribunal make no substantive decision on the material before it and simply let that material stand.

24 Having dismissed the proceedings on ground 3 of s 73(5)(g), I notice Mr Free has noted that there is a right to seek reinstatement of proceedings if there is a reasonable explanation for any failure to appear. That may be a difficult application to make in the present matter given the history I have outlined but nevertheless the facility is there.

25 Being a continuing relationship clearly there is always the possibility of a further new application in future.

26 There is a large body of material in existence now as a result and it may well be that that will prove independently useful to the Trustee and Guardian in making the decisions that need to be made in this case from time to time.

27 So with those remarks I will conclude my consideration of the application for the adjournment and the respondent’s application for dismissal. The applicant’s written application for adjournment is refused, the respondent’s application for dismissal is granted.