Klewer and National Disability Insurance Agency - [2019] AATA 4974

Klewer and National Disability Insurance Agency [2019] AATA 4974 (25 November 2019)
Division:NATIONAL DISABILITY INSURANCE SCHEME DIVISION
File Number: 2018/4118
Re:Robert Klewer
APPLICANT

AndNational Disability Insurance Agency
RESPONDENT

DECISION
Tribunal:The Hon. John Pascoe AC CVO, Deputy President
Date:25 November 2019
Place:Sydney

1.Until any further order of the Tribunal, this matter be held in abeyance pending the appointment of a Guardian Ad Litem for the Applicant, Robert Klewer.
2.The final hearing in this matter be heard by a different Member of the Tribunal and that I recuse myself from any further involvement.
3.If the Applicant and the Respondent agree on an appropriate way for this matter to proceed whilst fully protecting the best interests of the Applicant, either party is at liberty to approach the Tribunal.

Note to above orders
1.It is noted that the Respondent has indicated a willingness to assist in facilitating the appointment of a Guardian Ad Litem.

................................[sgd]........................................
The Hon. John Pascoe AC CVO, Deputy President
CATCHWORDS
PRACTICE AND PROCEDURE – National Disability Insurance Scheme - appointment of guardian ad litem – where Applicant seeks review of statement of participant supports – where Applicant is represented by his mother – where the mother has previously been found to be a vexatious litigant – whether Tribunal has power to appoint a guardian ad litem – best interests of Applicant – procedural fairness for Respondent – matter held in abeyance pending appointment of guardian ad litem
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – ss 2A, 33
Guardianship Act 1987 (NSW)
CASES
Attorney General in and for the State of NSW v Klewer (No 3) [2010] NSWSC9
Klewer v Sydney Children’s Hospital Specialty Network [2015] NSWSC 1493
Klewer v Roberts [2018] NSWCATAP 225
Luck and Department of Human Services [2009] AATA 800
Sullivan v Civil Aviation Authority [2014] FCAFC 93
Tarrant and ASIC [2013] AATA 926
REASONS FOR DECISION
The Hon. John Pascoe AC CVO, Deputy President
25 November 2019

The Applicant in this case, Mr Robert Klewer, is thirty-one years old and has a range of impairments including, most significantly, an acquired brain injury. He lives with his mother, Ms Lucy Klewer, who is his primary carer.
The Tribunal has had very limited opportunity to hear from Mr Klewer directly, and his mother has been acting as his representative before the Tribunal.
On the face of it, the case is not a complex one. The decision under review is a decision of the Respondent to affirm an earlier determination to approve the statement of participant supports in the Applicant’s National Disability Insurance Scheme (‘NDIS’) plan.
The issues for determination are:
1. whether overnight care for the Applicant for 10 hours a night, seven days per week, is a reasonable and necessary support and, if so,
2. whether Ms Klewer should be funded to provide that support.
The Respondent claims that there is no evidence that the night time care is required, and that in any event the Applicant’s mother is not the appropriate person to provide that care.
The complexity in this matter arises from the need to ensure procedural fairness for all parties and in particular to ensure that the Applicant is properly represented.
On 23 August 2019, at a directions hearing held by telephone, leave was given for the Applicant and his mother to appear at the final hearing by telephone. This was not opposed by the Respondent at the time.
On 31 October 2019 the Respondent requested an urgent directions hearing to address a number of issues, but most relevantly, the appointment of a Guardian ad Litem (GAL) for the Applicant. This was because the Respondent had become very concerned by the influence Ms Klewer appeared to exercise over the Applicant and also had fears as to procedural fairness. The Respondent had also become aware of relevant proceedings in NSW which were put before the Tribunal.
Ms Klewer on behalf of her son opposed the appointment.
At a telephone directions hearing held on 4 November 2019 which was meant to take a reasonably short period of time, but in fact ran for almost two hours, Ms Klewer constantly interrupted, denigrated the Respondent’s representatives and implied that merely by listening to the Respondent’s arguments I was exhibiting bias. Ms Klewer was particularly upset by the Respondent’s reference to litigation involving her in New South Wales where she was declared a vexatious litigant, and found her not to be a suitable person to represent her son. The Respondent also referred to Ms Klewer’s conviction for assault.
At the conclusion of that directions hearing, Ms Klewer ultimately agreed to an independent third party being present with the Applicant when he gave his evidence and suggested a person who had assisted him in the past. I asked her to provide the details of that person after the directions hearing to allow the Respondent to consider whether the presence of that person would satisfy their concerns. The information was also important for the Tribunal in addressing the issue of procedural fairness.
On 13 November 2019, an interlocutory hearing was held. This was because it became apparent that the parties could not reach any agreement as to how the hearing should be conducted. Essentially, the Respondent insisted on an independent legal practitioner being present whilst the Applicant gave evidence if he was to give evidence by phone, so that it could be sure that he was able to respond independently of his mother. Ms Klewer insisted that she select any third party who was to be present and that the Applicant would not consent to anybody suggested by the Respondent. When the matter was listed for an interlocutory hearing, I asked the parties to address the following issues:
1.Does the Tribunal have power to appoint a litigation guardian/Guardian Ad Litem, and if so, on what legal basis?
2.If the Tribunal does have the power, are there grounds which support the making of such an order?
3.If a litigation guardian/Guardian Ad Litem were to be appointed, what would their role be in the current case?
The major issue for the interlocutory hearing was therefore the Respondent’s application for the Tribunal to appoint a GAL. This involved consideration of whether Ms Klewer is an appropriate person to represent the Applicant, whether the Tribunal and the Respondent can be confident that the Applicant’s voice is heard in a fair and transparent manner without a GAL, and whether in the absence of a GAL the substantive hearing can be conducted in a way which ensures procedural fairness for all parties.
The Respondent gave extensive submissions which contended that the Tribunal had the power to appoint a GAL and that one should be appointed in this case due to the following two considerations:
1.To ensure that the proceedings are conducted in a manner that is in the best interests of the Applicant, given his cognitive impairments; and
2.To ensure that procedural fairness is afforded to the Respondent.
The Respondent also alternatively submitted that if the Tribunal decided not to appoint a GAL, a direction should be made that requires an independent person to be present with the Applicant while he is giving his evidence at the hearing, and that his mother not be present.
In the further alternative, if neither approach was taken the Respondent submitted that the Tribunal hearing should be held in Coffs Harbour (where the Applicant and his mother live) and that the Applicant be directed to give his evidence in person rather than over the phone and that he give evidence independently of his mother (who is also required for cross-examination by the Respondent), and without his mother in the room.
Ms Klewer provided submissions saying that the Tribunal does not have the power to appoint a GAL, and regardless that the Applicant could (and would) only be properly represented through her.
Prior to the interlocutory hearing, Ms Klewer wrote to the Tribunal asking that I recuse myself. The Respondent prepared submissions on this issue for the interlocutory hearing. At the beginning of the interlocutory hearing I advised the parties that I would not be recusing myself at this early stage of proceedings, which only related to case management. In any event it was difficult to see how my involvement in the matter to date could have raised any reasonable apprehension of bias.
I note that since the interlocutory hearing Ms Klewer has made several other requests for me to recuse myself before making any Orders.
At the interlocutory hearing it became apparent that it was quite impossible to proceed to the hearing on the basis of any agreement between the parties as to how the Applicant’s interests would be properly represented and procedural fairness accorded to all parties. In short, Ms Klewer was at best intransigent about the role she would play, claiming only she could properly represent her son.
Of particular concern was the fact that the independent person, who was a legal practitioner in Coffs Harbour previously proposed by the Respondent to be present in the room with the Applicant if and when he gives his evidence by telephone in order to ensure that he was given the opportunity to respond to questions himself, free of the influence of his mother, wrote a letter to Mills Oakley (the Respondent’s representatives) saying that she would fear for her personal safety if she were to attend the Applicant’s home for the purposes of the hearing. This was because Ms Klewer became aware of her identity and made a phone call to her office demanding to speak with her and protesting her involvement in the matter. Given Ms Klewer’s behaviour it was difficult to see how any other representative would not have similar concerns.
Other solutions were discussed, including assistance for Mr Klewer from a third party who was known to him. However, it turned out that the person Ms Klewer had in mind for the role was not available. Another person was discussed, but in any event Ms Klewer made it quite clear that she would not absent herself from any part of the hearing and stated that she would interfere if she felt it necessary during the Applicant’s cross-examination. She did not appear to consider that this was inconsistent either with her appearing as a witness or procedural fairness more generally.
The interlocutory hearing ended without any resolution and with Ms Klewer suggesting that whatever decision the Tribunal made would be irrelevant as she would be in the hearing room with her so, whatever the circumstances. I note that during the course of the interlocutory hearing Mss Klewer on several occasions handed the phone to a third party, purportedly her son (although I have no reason to believe otherwise), who agreed with her statements.
By the end of the hearing Ms Klewer was alleging undue influence on the Tribunal on the part of the Respondent and attacked the integrity of the Respondent’s representatives as well as the legitimacy and outcome of proceedings in the NSW Supreme Court and the NSW Civil and Administrative Tribunal (NCAT) referred to by the Respondent, insofar as those proceedings related to her.
CONSIDERATION
There are a number of aspects of this matter that are deeply troubling. Ms Klewer did not appear to understand the inappropriateness of her insistence on representing her son given she would, if his Application were successful, be the recipient of the funds from the Respondent, her role as a witness, and the need to ensure procedural fairness. I found her rude, obdurate and at times threatening. Further, Ms Klewer’s behaviour as manifested before the Tribunal must be considered in the light of a history of proceedings in NSW.
Ms Klewer has been found by the NSW Supreme Court to be a vexatious litigant. She also has been convicted of assault in relation to other proceedings. The findings of the Supreme Court are very important and in my view cannot be ignored. In Attorney General in and for the State of NSW v Klewer (No 3) [2010] NSWSC9, the Court outlined Ms Klewer’s extensive history of bringing actions in various courts, actions which almost always have been unsuccessful. The NSW Attorney General submitted the following in regards to Ms Klewer, which were accepted by the Honourable Harrison J:
The Attorney General also submitted that three characteristics emerged from all of this, which encapsulate Ms Klewer’s approach to litigation. The first is her inability to understand the difference between allegations and evidence. She seems to believe that merely making allegations or claims, no matter how extreme or fanciful, in some way constitutes evidence of the matters alleged. Secondly, she habitually refused to accept the adverse decisions of the court. Thirdly, she has an inability or an unwillingness to understand or comprehend the reasons that have led to the failure of her applications. This has caused her on a regular basis to distort or simply to ignore the findings made against her.
His Honour said at [335]:
…. I consider that these proceedings were instituted with the intention of annoying or embarrassing the person against whom they were brought or a person associated or connected with an organisation against which they were brought. I consider that they therefore also brought for collateral purposes and not for the purpose of having the courts adjudicate on the issues to which they give rise. They were by their very nature vexatious.
His Honour went on to state at [338]:
With one exception, all of Ms Klewer’s sixty proceedings and appeals that were not either discontinued or withdrawn by her have been dismissed. In most cases Ms Klewer has been ordered to pay the successful party’s costs. This demonstrates a significant determination and resolve on her part to continue in the face of difficulty or opposition with a degree of stubbornness.
In all of these circumstances I find that Ms Klewer habitually and persistently and without any reasonable cause has instituted vexatious legal proceedings.
Further, and more importantly, the NSW Supreme Court has previously found that the Applicant in these proceedings was not capable of representing himself in proceedings before the Court and that a GAL or tutor should be appointed.
In Klewer v Sydney Children’s Hospital Specialty Network [2015] NSWSC 1493 the Court was asked to consider an application for the Applicant’s brother, who was acting as his tutor in those proceedings, to be discharged from that role. The observations made by Wilson J in that case encapsulate my own experiences with Ms Klewer and the Applicant, and I respectfully adopt them.
I note that when describing the reasons provided by the brother as to why he wished to be discharged as a tutor, her Honour made the following observation at [28]:
Inferentially, Mr Klewer [the Applicant’s brother] wished to act in accordance with counsel’s advice, and the plaintiff and his mother did not.
As the Court had previously refused to grant Ms Klewer leave to act as the Applicant’s tutor, the Applicant advised that he wished to act for himself in those proceedings. Her Honour stated at [33]:
The plaintiff advised his Honour through counsel then acting for him that he wished to act for himself in the proceedings, without the assistance of a tutor. He specifically did not wish to have the NSW Trustee and Guardian appointed as tutor (something firmly confirmed by the plaintiff’s mother when the matter was before me).
Her Honour said at [49]:
Although the plaintiff contends that he can conduct his claim herself without need for a tutor, it was his mother who spoke on his behalf for the majority of the time spent on the telephone. Ms Klewer claimed not to have a speaker or hands free option on her mobile telephone that would permit the plaintiff to hear the proceedings, but assured the Court that “…I can explain everything to him”.
After deciding that the Applicant’s brother should be discharged from his role as tutor, her Honour then went on to consider whether or not the Applicant had capacity to act for himself in the proceedings. At [58] she considered the opinion of a Dr Parsonage who had written a report relating to the Applicant:
Dr Parsonage opined that the plaintiff had significant cognitive impairment and is heavily reliant upon his mother to make decisions for him in most aspects of his life. The doctor concluded that the plaintiff’s views about the case were a repetition of those of his mother. Dr Parsonage had considerable reservations about the plaintiff’s legal capacity.
After her Honour attempted to speak to the Applicant in order to determine his understanding of the proceedings, she made the observations at [62] and [66]:
During the telephone hearing I was able to speak to the plaintiff for only a brief period before his mother again took control of the telephone and spoke for her son.
……..
Ms Klewer thereafter took the telephone, complaining that the Court had raised “issues” about her “character” that were not material to the matter to be determined. She accepted that she had taken the telephone from her son, preventing the Court from further hearing from him directly, but asserted that it was necessary that she do so because “…you are attacking his mother…”
Her Honour made the observation at [82] that the brief discussion she had with the Applicant by telephone ‘did not displace concerns about the plaintiff’s capacity’.
Having considered both the medical evidence before him and her own interactions with the Applicant and Ms Klewer, her Honour found at [88] – [94]:
It was apparent during our conversation that the plaintiff deferred to and relied upon his mother in all matters connected with the litigation (and more generally). Ms Klewer having assured her son that he will receive 1.5million dollars from his suit, the plaintiff has adopted that assurance as an incontestable truth.
The Court’s conclusion in that regard is consistent with the opinion of Dr Parsonage.
Considering the medical evidence, and in light of the telephone discussion with the plaintiff, I am not satisfied that he has the capacity to act for himself, and to make difficult legal or financial decisions without disinterested assistance.
It seems inevitable that the assistance the plaintiff would seek would be that of his mother, and Ms Klewer would act on a de facto basis as manager and director of her son’s litigation, a role this Court refused to permit her to take on a formal basis.
The plaintiff himself conceded that he would need his mother’s assistance if he was to manage the conduct of his case (at T6:15 – 24),
“HER HONOUR: But what I am trying to work out, it is really hard to navigate the court system. It is hard to make your way in the court system.
PLAINTIFF: Yes. That is why, that is why I need my mum’s help.
HER HONOUR: I guess that is my concern, Robert, because another judge of this court, not me, but another judge who looked at your case would not allow your mother to help you as your tutor.
PLAINTIFF: Well that’s wrong, that’s wrong.”
The pervasive influence of the plaintiff’s mother was evident throughout the telephone conference, and was separately noted by Dr Parsonage.
I have concluded on the (limited) evidence available to the Court that the plaintiff lacks the capacity to act in this matter on his own behalf. Allowing him to do so would do no more than hand the management of the litigation to the plaintiff’s mother, and in my view that would be contrary to the interests of the plaintiff.
In proceedings before the NSW Civil and Administrative Tribunal (NCAT), a decision was made early on that Ms Klewer was not an appropriate person to represent her son as she had been declared a vexatious litigant (Klewer v Roberts [2018] NSWCATAP 225). It is apparent from the proceedings before NCAT that a GAL was later appointed to represent the Applicant.

At the telephone directions hearing held before this Tribunal on 4 November 2019, and at the interlocutory hearing held on 13 November 2019, the difficulties referred to by the Supreme Court in relation to Ms Klewer’s conduct were clearly evident. Despite the fact that she allowed the Applicant to speak on a couple of occasions, it was certainly not possible to form a conclusion that he was speaking independently.
More significantly there is no evidence that the Applicant’s condition has improved since the decision of the NSW Supreme Court that he was not competent to conduct litigation on his own behalf and that a GAL was necessary. This is reinforced by the medical evidence that was filed with the Tribunal (but not tested) which indicates that the Applicant was totally dominated by his mother.
Although it was not raised by the Applicant, either at the telephone directions hearing or the interlocutory hearing, it is important to note that in his initial application to the Tribunal the Applicant himself requested the appointment of a GAL due to his brain injury. No explanation was given as to why this was not pursued.
Although the Tribunal is not bound by the findings of the NSW Supreme Court or those of the NCAT, in my opinion they must be given very significant weight. In the case of the Supreme Court they are the findings of a superior court with a long history of dealing with the Applicant and his mother. They reflect almost exactly the difficulties experienced before this Tribunal. Indeed I find it difficult to see how those findings could be ignored and this Tribunal proceed on the basis that the Applicant is in fact capable of representing himself, albeit through his mother rather than an independent qualified legal practitioner. This is particularly so in circumstances where the Applicant’s mother could be seen to have a vested interest in the outcome of the proceedings.
In all of the circumstances I do not believe, if there is to be procedural fairness, that I can allow this matter to proceed in the absence of a GAL being appointed to protect the best interests of the Applicant and to ensure that his voice is properly heard. I have considered other alternatives including requiring the Applicant to be present at the hearing in person with suitable assistance (not his mother), but this does not overcome the clear and unequivocal findings of the NSW Supreme Court that the Applicant is not capable of representing himself. There is no evidence to refute this finding. In fact, medical reports filed with the Tribunal reinforce it.
The appointment of a Legal Aid lawyer similarly does not overcome the findings of the NSW Supreme Court nor my own concerns because one cannot be satisfied that the Applicant is capable of giving instructions (in fact the Supreme Court said that he was not) nor that the Applicant will not be influenced by his mother when giving those instructions.
It was quite apparent from the manner in which Ms Klewer conducted herself at the telephone directions hearing, the interlocutory hearing, and in the flood of at times somewhat hysterical correspondence sent to the Registry, that the characteristics observed by the Supreme Court have not changed in any way. It was appropriate for the Respondent to raise concerns about these behaviours.
For the interests of justice to be served, the Tribunal must be satisfied that the Applicant is independently represented and that his voice is heard free of his mother’s influence. On the basis of all of the evidence before me, I do not think this is possible without a GAL.
It goes without saying that the Respondent is also entitled to procedural fairness and this includes being satisfied that the answers being given by the Applicant or on his behalf properly represent his position, free of outside influence.
Ms Klewer submitted that the Tribunal does not have the power to appoint a GAL and it appears that it has not happened before. In this regard, I note that the NCAT has specific power to appoint a guardian under the Guardianship Act 1987 (NSW). Unlike the NCAT, there is no specific power in the Administrative Appeals TribunalAct 1975 (Cth) (AAT Act) for the Tribunal to appoint a GAL. The Tribunal does however have very wide power to determine its own procedure under paragraph 33(1)(a) of the AAT Act which states:
1In a proceeding before the Tribunal:
(a)the procedure of the Tribunal is, subject to this Act and the regulations and to any other enactment, within the discretion of the Tribunal;
…….
In my view, the provisions of this section are sufficiently wide for the Tribunal to take action, including the postponement of the final hearing of this matter and requiring the appointment of a GAL, where it is quite apparent that there can be no procedural fairness without such an appointment being made. There is some support for this view.
In Luck and Department of Human Services [2009] AATA 800, Deputy President Forgie considered the extent of the power granted to the Tribunal under subsection 33(1). She said at [25]:
Section 33(1)(a) gives the Tribunal wide power to decide how it will deal with any application or matter that it must resolve. Its discretion is limited only by the need to observe procedural fairness and to ensure that the procedure is appropriate to the proceeding.......
In Sullivan v Civil Aviation Authority [2014] FCAFC 93, the Full Court of the Federal Court said the following in regards to subsection 33(1) at [88]:
… The charter given by this provision to the Tribunal to be the master of its own procedure, together with the emphasis placed upon informality and the freedom not to be bound by the common law rules of evidence, were hallmarks of the Tribunal being espoused even before the Administrative Appeals Tribunal Act was enacted in 1975.
The Court in Sullivan cited with approval the decision of Kerr J and then Senior Member Redfern in Tarrant and ASIC [2013] AATA 926 where the Tribunal stated at [75] that ‘the procedure of the Tribunal always remains within the Tribunal’s independent control’.
The objective of the Tribunal is set out in section 2A of the AAT Act:
2A Tribunal’s objective
In carrying out its functions, the Tribunal must pursue the objective of providing a mechanism of review that:
(a)is accessible; and
(b)is fair, just, economical, informal and quick; and
(c)is proportionate to the importance and complexity of the matter; and
(d)promotes public trust and confidence in the decision‑making of the Tribunal.
In order to properly ensure that it provides a mechanism of review that is ‘fair’, the Tribunal must carry out its functions in a manner which guarantees procedural fairness. Further, a decision-maker cannot be seen as promoting public trust and confidence in its ability to carry out its function without ensuring that parties are able to properly present their case.
It would be surely completely inconsistent with that objective if the Tribunal were forced to proceed with a hearing in circumstances where it is quite clear, especially given the findings of a superior court which are directly on the issue, that the best interests of justice would not be served.
Ms Klewer has made further requests that I recuse myself from these proceedings, and in light of the findings I have made as to her suitability to represent her son it is appropriate for me to do so and for the matter to be heard by another Member of the Tribunal when it is ready to proceed.
I acknowledge that the appointment of a GAL does not appear to have previously arisen before the Tribunal. However it must also be said that particularly in cases involving the NDIS, such questions are likely to arise more frequently in the future. At the very least the current circumstances highlight the need for consideration as to whether the Tribunal should have similar powers enshrined in legislation to those currently available to NCAT.
It would seem appropriate for an application to be made to the Guardianship Division of the NCAT; especially given the very serious issue in this case and the need to find an effective solution in the best interests of the Applicant.
I also acknowledge the administrative difficulties in ensuring that a GAL is appointed, but administrative difficulty cannot be the deciding issue. The best interests of justice must prevail. I note further that the Respondent has indicated a willingness to assist in the process of appointing a GAL. I note also the provisions of section 69 of the Act which appear to contemplate the provision of legal assistance to a party.
ORDERS
For the reasons above, I make the following orders:
1.That until any further order of the Tribunal, this matter be held in abeyance pending the appointment of a Guardian Ad Litem for the Applicant, Robert Klewer.
2.That the final hearing in this matter be heard by a different Member of the Tribunal and that I recuse myself from any further involvement.
3.If the Applicant and the Respondent agree on an appropriate way for this matter to proceed whilst fully protecting the best interests of the Applicant, either party is at liberty to approach the Tribunal.

I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of The Hon. John Pascoe AC CVO, Deputy President

...............................[sgd].........................................
Associate
Dated: 25 November 2019

Date of hearing: 13 November 2019

Advocate for the Applicant: Ms L Klewer

Counsel for the Respondent: Ms M Fisher

Advocate for the Respondent: Mr J Pattinson

Solicitors for the Respondent: Mills Oakley Lawyers

Date of hearing:	13 November 2019
Advocate for the Applicant:	Ms L Klewer
Counsel for the Respondent:	Ms M Fisher
Advocate for the Respondent:	Mr J Pattinson
Solicitors for the Respondent:	Mills Oakley Lawyers