NSM

Case [2020] NSWCATGD 84 4 August 2020

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NSW Civil and Administrative Tribunal

New South Wales

Amendment notes

Medium Neutral Citation: NSM [2020] NSWCATGD 84
Hearing dates: 04 August 2020
Date of orders: 04 August 2020
Decision date: 04 August 2020
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
Decision:
The guardianship order for NSM made on 1 August 2019 has been reviewed. The order now is as follows:
1. The Public Guardian is appointed as the guardian.
2. This is a continuing guardianship order for a period of two years from 4 August 2020.
3. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below.
FUNCTIONS:
4. The guardian has the following functions:
a) Access
To decide what access NSM has to others and the conditions of access.
b) Accommodation
To decide where NSM may reside.
c) Health care
To decide what health care NSM may receive.
d) Medical/Dental consent
To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent.
CONDITION:
5. The condition of this order is:
a) Standard Condition
In exercising this role the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions.

Catchwords:
GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed
PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal

Legislation Cited:
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c)
Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(e), 4(g), 14, 14(1)-(2), 14(2)(a)(i), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(b), 25C, Pt 5

Cases Cited:
Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
IF v IG [2004] NSWADTAP 3
IR v AR [2015] NSWSC 1187
Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427
P v NSW Trustee and Guardian [2015] NSWSC 579
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
ZKF v ZKG [2019] NSWCATAP 64

Texts Cited:
NSW Civil and Administrative Tribunal, Message from the President, “Temporary changes to NCAT operations”, 10 July 2020, accessed 3 November 2021

Category: Principal judgment
Parties:
007: Review of Guardianship Order

NSM (the person)
Public Guardian (appointed guardian)
BYM (joined…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: NSM [2020] NSWCATGD 84
Case: [2020] NSWCATGD 84
Decision Date: 04 August 2020

CaseChat Overview and Summary

NSM, a permanent resident in an aged care facility, was the subject of a review of a guardianship order by the Public Guardian. The dispute centred on allegations of neglect and abuse, the separation of NSM from their spouse, and the adequacy of the aged care facility in meeting NSM's service needs. Additionally, concerns were raised about the suitability of the proposed guardian. The Family and Community Court was tasked with deciding these matters.

The court had to determine whether the Public Guardian should continue as the guardian of NSM, given the allegations and the evidence presented. The court also had to assess the appropriateness of the adjournment request and whether the evidence timetable was adhered to. The court needed to consider the claims of actual bias against a Tribunal member, which were ultimately unsupported. The court was required to weigh the evidence on the ability of the proposed guardian to meet statutory criteria and the impact of family conflict on the decision-making process.

In its reasoning, the court noted that the allegations of neglect and abuse were unsupported and that the aged care facility was meeting NSM's service needs. The court also found that the proposed guardian was suitable for the role, despite opposition from a separate representative and a family member. The court rejected the adjournment request, emphasising the importance of compliance with the evidence timetable in Tribunal proceedings. The court found that the hearing could proceed in the absence of certain evidence, as long as parties had a reasonable opportunity to be heard within the limits of presentation time. The unsupported allegations of actual bias against a Tribunal member were dismissed due to a lack of evidence. Consequently, the Public Guardian was reappointed as the guardian of NSM, with a continuing guardianship order for two years, including specific functions and conditions.

The final order appointed the Public Guardian as NSM's guardian, with a limited guardianship order for two years. The guardian was granted functions related to access, accommodation, health care, and medical/dental consent. The condition of the order required the guardian to take reasonable steps to ensure NSM understood the issues and considered their views before making significant decisions.

Orders

Orders of the court

The guardianship order for NSM made on 1 August 2019 has been reviewed. The order now is as follows:

1. The Public Guardian is appointed as the guardian.

2. This is a continuing guardianship order for a period of two years from 4 August 2020.

3. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below.

FUNCTIONS:

4. The guardian has the following functions:

a) Access

To decide what access NSM has to others and the conditions of access.

b) Accommodation

To decide where NSM may reside.

c) Health care

To decide what health care NSM may receive.

d) Medical/Dental consent

To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent.

CONDITION:

5. The condition of this order is:

a) Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

NSM [2020] NSWCATGD 84

Cases Citing This Decision

No citing cases yet.

Cases Cited

IR v AR [2015] NSWSC 1187
Citation 1 (Para 107)

…a manner consistent with the statutory duty imposed by s 4 of the Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was therefore not satisfied that BYM met the criterion in s 17(1)(c) of the Act.…
P v NSW Trustee and Guardian [2015] NSWSC 579
Citation 2 (Para 57)

…he Act, s 3(2). She has a significant “need for services to help [her] function normally in community with others” ( P v NSW Trustee and Guardian [2015] NSWSC 579, [303]) and is incapable of managing her person: the Act, s 3(1).…
Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98
Citation 3 (Para 48)

…These principles are succinctly set out in the decision of the Court of Appeal in Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98, at [68]–[73]:…
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48
Citation 4 (Para 49)

…n the form of prejudgment requires an assessment of the state of mind of the judge in question: Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 at 437 [33].…
South Western Sydney Area Health Service v Edmonds [2007] NSWCA 16
Citation 5 (Para 97)

…y proved; that such a finding should not be made lightly; and that cogent evidence is required: South Western Sydney Area Health Services v Edmonds [2007] NSWCA 16 at [97] and the authorities there cited. 69 Where the issue is actual bias in the form of prejudgment, the appellant had to establish that the primary…
IF v IG [2004] NSWADTAP 3
Citation 6 (Para 60)

…atters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).…
W v G [2003] NSWSC 1170
Citation 7 (Para 107)

…uardianship order, I was not satisfied that he would be able to do so in a manner consistent with the statutory duty imposed by s 4 of the Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was theref…
Minister for Immigration And Multicultural Affairs v Jia Legeng [2001] HCA 17
Citation 8 (Para 72)

…o be incapable of alteration, whatever evidence or arguments may be presented’: Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507 at [72] per Gleeson CJ and Gummow J (Hayne J agreeing at [176]). See also Kirby J at [127]. 70 As Gleeson CJ and Gummow J observed in that cas…
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1999] FCA 119
Citation 9

…“68 A finding of actual bias is a grave matter: Sun v Minister for Immigration and Ethnic Affairs (1997) ( Sun v Minister ) 81 FCR 71 at 127 per Burchett J. Authority requires that an allegation of actual bias must be distinctly made and clearly proved; that such a finding should not be made lightly; and tha…
[2015] NSWCATAP 77 [2015] NSWCATAP 77
Citation 10 (Para 22)

…“[55] In O’Neill v T and I Engines Pty Ltd [2015] NSWCATAP 77 at [22], the Appeal Panel identified the following principles governing applications for an adjournment: (1) matters should almost always proceed on the date fixed for hearing, for the reasons enunciated above, (2) an application for an adjournment should…
NCAT Act and the principles in Armee v Brealey [2017] NSWCATAP 141
Citation 11 (Para 121)

…Refusing an adjournment may be inappropriate if it has the effect of depriving a party from adequately presenting the parties case: Armee v Brearley [2017] NSWCATAP 141 at [121] and [135]. However, in considering an adjournment application, the Appeal Panel must take into account all the relevant facts and circumstan…
Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
Citation 12 (Para 41)

…erning adjournment requests were recently set out in the decision of the NCAT Internal Appeal Panel in the decision of Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 at [55]–[56]:…
ZKF v ZKG [2019] NSWCATAP 64
Citation 13 (Para 107)

…y s 4 of the Act: W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 at [25] (per Windeyer J); IR v AR [2015] NSWSC 1187 at [36] (per Lindsay J); ZKF v ZKG [2019] NSWCATAP 64 at [31]). I was therefore not satisfied that BYM met the criterion in s 17(1)(c) of the Act.…

Legislation Cited

Civil and Administrative Tribunal Act 2013 (NSW) 36, 36(1), 38, 38(5)(c), 38(6)(a), 65
7 mentions (from Para 31)
Guardianship Act 1987 (NSW) 3(1)
2 mentions (from Para 1)
Mental Health Act 2007 (NSW)
1 mention (from Para 3)

Medium Neutral Citation:	NSM [2020] NSWCATGD 84
Hearing dates:	04 August 2020
Date of orders:	04 August 2020
Decision date:	04 August 2020
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member
Decision:	The guardianship order for NSM made on 1 August 2019 has been reviewed. The order now is as follows: 1. The Public Guardian is appointed as the guardian. 2. This is a continuing guardianship order for a period of two years from 4 August 2020. 3. This is a limited guardianship order giving the guardian(s) custody of NSM to the extent necessary to carry out the functions below. FUNCTIONS: 4. The guardian has the following functions: a) Access To decide what access NSM has to others and the conditions of access. b) Accommodation To decide where NSM may reside. c) Health care To decide what health care NSM may receive. d) Medical/Dental consent To make substitute decisions about proposed minor or major medical or dental treatment, where NSM is not capable of giving a valid consent. CONDITION: 5. The condition of this order is: a) Standard Condition In exercising this role the guardian shall take all reasonable steps to bring NSM to an understanding of the issues and to obtain and consider their views before making significant decisions.
Catchwords:	GUARDIANSHIP – review of guardianship order – permanent resident of aged care facility – unsupported allegations of neglect and abuse by Public Guardian – concerns over separation of subject person and spouse – service needs met by aged care facility – suitability of proposed guardian – supporting material not received – no evidence on ability to meet statutory criteria – family conflict – separate representative and family member oppose proposed guardian – Public Guardian reappointed PROCEDURE – rejection of adjournment request – guiding principle in Tribunal proceedings – non-compliance with evidence timetable – hearing proceeded in absence of certain evidence – reasonable opportunity to be heard – limits on presentation time of parties – unsupported allegations of actual bias of Tribunal Member – no evidence to support recusal
Legislation Cited:	Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(5)(c), 38(6)(a)-(c) Guardianship Act 1987 (NSW), ss 3(1)-(2), 4, 4(a)-(e), 4(g), 14, 14(1)-(2), 14(2)(a)(i), 15(3), 16(3), 17(1), 17(1)(a)-(c), 25(2)(a)-(b), 25C, Pt 5
Cases Cited:	Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 IF v IG [2004] NSWADTAP 3 IR v AR [2015] NSWSC 1187 Michael Wilson & Partners Limited v Nicholls & Others [2011] HCA 48; 244 CLR 427 P v NSW Trustee and Guardian [2015] NSWSC 579 Reid v Commercial Club (Albury) Ltd [2014] NSWCA 98 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220 ZKF v ZKG [2019] NSWCATAP 64
Texts Cited:	NSW Civil and Administrative Tribunal, Message from the President, “Temporary changes to NCAT operations”, 10 July 2020, accessed 3 November 2021
Category:	Principal judgment
Parties:	007: Review of Guardianship Order NSM (the person) Public Guardian (appointed guardian) BYM (joined…