Gartrell v State of NSW (Public Guardian) & Live Better Services Pty Ltd

[2025] NSWCATAD 102

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Gartrell v State of NSW (Public Guardian) & Live Better Services Pty Ltd [2025] NSWCATAD 102

Hearing dates:

30 April 2025

Date of orders:

06 May 2025

Decision date:

06 May 2025

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member

Decision:

The First Respondent’s application for miscellaneous orders (summary dismissal) is dismissed.

Catchwords:

PRACTICE AND PROCEDURE – summary dismissal of proceedings under s55(1)(b) of the Civil and Administrative Act 2013 – whether the applicant’s discrimination claims are frivolous or vexatious or otherwise misconceived or lacking in substance.

HUMAN RIGHTS – discrimination – on the ground of disability – in the provision of goods and services

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

Guardianship Act 1987 (NSW)

Cases Cited:

Battenberg v The Union Club [ No 2] [2003] NSWADT 187

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65

Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73

Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179

Texts Cited:

N/a

Category:

Procedural rulings

Parties:

Andrew Gartrell (Applicant)
State of NSW (Public Guardian) (First Respondent)
Live Better Services Pty Ltd (Second Respondent)

Representation:

Applicant (Self Represented)

Solicitors:
Crown Solicitor (First Respondent)

Counsel:
A Nicholas (First Respondent)

File Number(s):

2024/00440681

Publication restriction:

N/a

REASONS FOR DECISION

1. Mr Andrew Gartrell (“the applicant”) brought two discrimination complaints on behalf of his son, Mr Richard Gartrell against the first respondent and the second respondent pursuant to s 49M of the Anti-Discrimination Act 1977 (NSW) (“the Act”). The complaints allege discrimination of the ground of a disability in the provision of goods and services. Mr Richard Gartrell is a 23 year old man diagnosed with moderate Autism Spectrum Disorder, significant intellectual disability and obsessive compulsive disorder. Mr Gartrell does not generally communicate verbally.

2. The first respondent is Mr Richard Gartrell’s guardian. The second respondent provides Mr Gartrell with accommodation. The applicant’s complaint is that the first respondent and the second respondent have mistreated his son because of his disabilities, including administering him with chemical restraints as a tool to manage his behaviour. The complaint periods are 16 February 2022 to 22 August 2024 and 23 August 2024 to November 2024.

3. The first respondent made an interlocutory application on 2 April 2025 that the proceedings before the Tribunal be summarily dismissed pursuant to s 102 of the Act on the basis that the proceedings are misconceived or lacking in substance because no cause of action against the first respondent lies under the Act because of s 100 of the Guardianship Act 1987 (NSW).

4. For the reasons that follow, I have decided to dismiss the application for summary dismissal.

The material before the Tribunal and brief chronology

5. In support of its application, the first respondent filed submissions and documents in Schedule A and Schedule B. Documents in Schedule A outline the decisions made by the first respondent during the complaint period and documents in Schedule B evidence the decisions referred to in Schedule A.

6. Mr Gartrell relied on documents and submissions filed in response. I take the following narrative from the first respondent’s submissions.

7. The first respondent has been appointed as Richard’s guardian since 3 October 2017. Guardianship orders have been made by the Guardianship Division of this Tribunal.

8. On 6 April 2023, following a review of the guardianship orders, the applicant was appointed as a guardian with the function of advocacy. At the same time the first respondent was reappointed separately to make decisions with respect to Mr Gartrell’s healthcare, medical and dental treatment services and restrictive practises.

9. In September 2023 the applicant lodged a request with the Tribunal for a review of the guardianship order made on 6 April 2023, seeking that the applicant be appointed as his son’s guardian in place of the first respondent. On 18 February 2024, the Tribunal denied that request and reappointed the first respondent as sole guardian.

10. The applicant made a complaint to Anti-Discrimination NSW on 22 August 2024 alleging that Mr Gartrell had been discriminated against on the grounds of his disability in the provision of goods and services by the first respondent and the second respondent. A further complaint was made on 8 November 2024.

11. On 27 November 2024 Anti-Discrimination NSW referred the complaint to the Administrative and Equal Opportunities Division of this Tribunal pursuant to s 93C(a) of the Act having determined that the complaint could not be resolved by conciliation on the basis that the applicant had raised concerns about its impartiality and apprehended bias. There was no consideration of the merits of the complaint and the respondents did not provide written responses to the complaints. On 17 February 2025 the parties attended mediation but we're not able to reach an agreement.

Principles as to summary dismissal

12. Section 102 of the Act, like s 55(1)(b) of the CAT Act allows for a proceeding to be dismissed in whole or in part at any stage if the Tribunal is satisfied that the proceedings are misconceived or lacking in substance, or if the Tribunal considers that the proceedings are vexatious or frivolous.

13. The principles as to the Tribunal’s power to dismiss proceedings under s 102 of the Act and s 55(1)(b) of the CAT Act are well known. A complaint or part of a complaint can be dismissed if it is “so clearly untenable that it cannot possibly succeed.” General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130.

14. In a dismissal application, the applicant’s case in the substantive proceedings is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].

15. In Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11] the Appeal Panel considered the predecessor to s102 of the Act and stated that:

Summary dismissal is not appropriate where there is a serious question of fact to be determined: Spellson v George (1992) 26 NSWLR 666 or where a serious question of credit is involved. Importantly, if factual issues are likely to be affected by evidence in the possession of the defendant, that matter alone may make it inappropriate to dismiss the matter. Material in summonsed documents or answers on cross examination may lead to the proof of factual matters about which the plaintiff has no direct evidence. (Wickstead v Browne (1992) 30 NSWLR 1). The commonly-stated test of `taking the evidence at its highest' needs to be understood in this context. The evidence that is available to a Tribunal when assessing whether to dismiss a complaint before the completion of an inquiry is not all that a Tribunal must take into account. That evidence, even taken `at its highest' may not be enough to withstand an application for dismissal. But the nature of proof of discrimination complaints in many circumstances is such that it will often be appropriate to have regard as well to the reasonable possibility that documents and evidence to be led by the respondent, and cross-examination of the respondent's witnesses, will provide the necessary causative link between the conduct complained of and the ground for that conduct having occurred.

16. A complaint is misconceived or lacking in substance if it can be demonstrated that there exists no factual or legal basis for the allegations or that the allegations lack merit. Battenberg v The Union Club [ No 2] [2003] NSWADT 187 at [15].

Submissions on summary dismissal

17. The first respondent relied on s 100 of the Guardianship Act. It is in the following terms:

No matter or thing done by the Minister, the Secretary, the Public Guardian, an employee or any other person shall, if the matter or thing was done in good faith and with reasonable care for the purposes of executing this Act, subject the Minister, the Secretary, the Public Guardian, the employee or that other person personally to any action, liability, claim or demand.

18. The starting point in considering provisions in the Guardianship Act is by recognising that it is intended to benefit persons with disabilities.

19. The first respondent submitted that the “matters or things” done by the first respondent were done in good faith and with reasonable care. It relied on the documents in Schedules A and B and submitted that it acted pursuant to the orders made by the Tribunal.

20. The applicant submitted that the first respondent did not act with reasonable care. Mr Gartrell pointed to the Orders made by the Tribunal which stated that chemical restraint was only to be applied as a last resort to prevent Mr Gartrell harming himself or others.

21. The Guardianship Order made on 18 February 2024 states:

CONDITIONS

5. the conditions of this order are:

a) Standard Condition

in exercising this role the guardian shall take all reasonable steps to bring Richard Gartrell to an understanding of the issues and to obtain and consider his views before making significant decisions.

B) NDIS Restrictive Practices Condition

the guardians may only consent to the use of the types of restrictive practises permitted under this order to influence Richard Gartrell’s behaviour:

(i) as a last resort to prevent Richard Gartrell harming himself or others; and

(ii) in accordance with the behavioural support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment approach upon Richard Gartrell, and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires a plan to be amended

22. The applicant pointed to incident reports in the documents relied on by the first respondent that stated that the second respondent was regularly chemically restraining Mr Gartrell as a day to day ‘management tool’ contrary to the orders made by the Tribunal that the chemical restraint occur as a last resort or in circumstances of self-harm or risk to another person.

23. A restrictive practice authorisation dated 21/08/2025 stated that Mr Gartrell had been administered a chemical restraint 10 times in the last 12 months “and is to be offered when Richard demonstrates excessive fixation and OCD related behaviours where staff are unable to redirect him.”

24. The applicant also submitted that the documents that refer to Mr Gartrell giving consent cannot be taken at face value as Mr Gartrell has no or limited opportunities to object or question the treatment he is receiving.

Consideration

25. I consider that this proceeding raises issues which are in factual and legal dispute between the parties. As such, this is not a proceeding that should be summarily dismissed.

26. The Tribunal will be required to make factual findings as to whether the Tribunal Orders and any Plans made pursuant to it were complied with. The first respondent’s function is to make decisions about whether to give or withhold consent as to whether restrictive practices such as chemical restraints should be given to Mr Gartrell.

27. Any finding as to whether the first respondent acted with reasonable care or in good faith will depend on the factual findings. Other than asserting in its submissions that the Tribunal ought to be satisfied that its conduct was done in good faith and with reasonable care for the purposes of s 100 of the Guardianship Act, the first respondent did not refer to any document to show that the applicant’s claims were not reasonably arguable.

28. The first respondent submitted that an anonymisation order be made in regard to the applicant’s name. The applicant opposed such an order and no such order is made.

Order

29. I make the following order:

1. The first respondent’s application for miscellaneous orders (summary dismissal) 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

Decision last updated: 06 May 2025