TBZ

[2020] NSWCATGD 80

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

TBZ [2020] NSWCATGD 80

Hearing dates:

07 October 2020

Date of orders:

07 October 2020

Decision date:

07 October 2020

Jurisdiction:

Guardianship Division

Before:

J S Currie, Senior Member (Legal)
Dr W Longley, Senior Member (Professional)
E Lyne, General Member (Community)

Decision:

SND is joined as Carer.

Today’s hearing is adjourned to a day to be confirmed by the Registry.

Catchwords:

PROCEDURE – procedural fairness – hearing rule – no prior notice of hearing – communication barriers between parties – application not provided to party – right to access documents filed in support of application – potential for prejudice if hearing were to proceed – hearing adjourned

Legislation Cited:

Guardianship Act 1987 (NSW), s 3D

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Principal judgment

Parties:

001: Guardianship Application

TBZ (subject person)
Ageing and Disability Commission (applicant)
SND (carer)
Public Guardian (statutory party)

002: Financial Management Application

TBZ (subject person)
Ageing and Disability Commission (applicant)
SND (carer)
NSW Trustee and Guardian (statutory party)

Representation:

Nil

File Number(s):

NCAT 2020/00288374

Publication restriction:

Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

REASONS FOR DECISION

ADJOURNMENT OF GUARDIANSHIP APPLICATION AND FINANCIAL MANAGEMENT APPLICATION

Background

1. TBZ, aged 20 years, is reported to have been diagnosed with Autism Spectrum Disorder (level 3) and an intellectual disability and to have only limited expressive and receptive communication.

2. TBZ lives with her mother and carer SND in Southern Sydney.

3. On 6 October 2020 the Tribunal received from the NSW Ageing and Disability Commission (“the Commission”) two applications which sought respectively the appointment of a guardian and of a financial manager for TBZ. The responsible officer for the applications was OZD, a Senior Case Coordinator at the Commission.

4. The Commission sought an urgent hearing of the two applications on the basis of its assertion that TBZ was at risk from neglect, insufficient care and denial of appropriate access to medical care, due to inadequate supervision and care by her mother and carer.

The Guardianship Application

5. In the guardianship application it was asserted that as carer SND was not making decisions for TBZ that were in her best interests and safety. The Commission sought the urgent appointment of the Public Guardian as TBZ’s guardian and the grant of the functions of access, accommodation, “medical, dental” (which we understood to encompass the two functions normally described as health care and medical and dental consent) and services.

The Financial Management Application

6. In the financial management application it was asserted that TBZ has no access to or awareness of her disability support pension and no access to her financial assets and the Commission sought, on an urgent basis, a financial management order under which the management of TBZ’s estate would be committed to NSW Trustee and Guardian.

Listing of the matter before us

7. The matter was added at short notice to our hearing list on the afternoon of the hearing day. Unfortunately, because of hearing commitments to other matters we received the supporting documentation relevant to the applications only some 25 minutes prior to the commencement of the hearing.

Issues and our decision

8. Our task was to consider both applications. For the reasons explained below, we decided to consider adjourning the hearing of both applications on the Tribunal’s own motion. In that regard we had to decide:

1. whether an adjournment was justified by the circumstances of the matter and in particular by any denial of procedural fairness to SND;

2. whether the proposed adjournment was likely to prejudice the welfare or interests of TBZ; and

3. if an adjournment were to be granted, the duration of the adjournment and any other terms.

9. We decided that:

1. an adjournment was justified on the basis that SND would be denied procedural fairness if the hearing were to proceed on this day;

2. the proposed adjournment would be unlikely to prejudice TBZ’s welfare and interests; and

3. it was appropriate to adjourn the hearing of both applications to a date to be fixed, noting that the hearing needed to be held prior to 14 October 2020 and that the Applicant and the Registry would make urgent arrangements to provide SND with the applications and supporting documentation.

10. These are our reasons for those decisions.

Parties, participants and statutory provisions

11. Appendix A to these reasons identifies the parties to the proceedings and the participants in the hearing. [Appendix removed for publication.] Appendix B sets out the relevant statutory provisions which we have referred to [Appendix removed for publication].

Procedural fairness

12. At the outset OZD of the Commission told us that she had attempted to telephone SND earlier on the afternoon of the hearing to discuss the applications, but as we understood it she had not been able to reach SND. OZD told us that there had been substantial communication barriers between the Commission and SND and that due to TBZ’s disabilities OZD and other Commission representatives had found it very difficult to engage with her.

13. We were able to establish telephone contact with SND. She asserted that she had not had any prior notice of the proceedings, was not aware of the existence or the implications of the Applications and had received no specific notice of them although she “knew there had been a complaint”. We explained the nature of the applications briefly to SND. She indicated that she was opposed to the guardianship application but may be more equivocal about the financial management application. She asserted that she had had no warning or notice of these proceedings. We understood her to indicate a wish to obtain legal advice on the applications.

14. We did not understand SND’s assertions in this regard to be refuted by the Commission.

15. OZD and her colleague Mr Z, who is also a Senior Case Coordinator at the Commission, confirmed that arrangements could be made for a copy of the applications and the documentation which supported them to be hand-delivered to SND on the day following this hearing.

16. It seemed clear and we found that a continuation of the hearing of either application on this day would constitute a clear denial of procedural fairness to SND.

17. For avoidance of doubt, we confirm that we regarded the procedural unfairness as so apparent and SND’s opposition, at least to the guardianship application, so clear that we could not properly consider the making of a temporary guardianship order or an interim financial management order at this hearing. We did not understand the Commission to press any claim for the making of such temporary or interim orders.

18. SND was acknowledged in the Guardianship Application as the carer of TBZ and there seemed no dispute that she was in fact the carer: see s 3D of the Guardianship Act 1987 (NSW), the text of which is set out in Appendix B to these Reasons [Appendix removed for publication]. We joined SND to both applications, as TBZ’s carer.

TBZ’s welfare and interests

19. It was put to us by the representatives of the Commission that there was substantial urgency required for the hearing of the applications. That arose partly from what the Commission asserted concerning TBZ’s living conditions and her neglect, but in particular the urgency arose by reason of the fact that SND has been charged with criminal offences which are set down for hearing on 14 October 2020 (that is one week from the date of this hearing). The Commission understands that the hearing of the criminal charges may result in a custodial order. That would place TBZ at even greater risk to her health safety and welfare.

20. We made contact with the Tribunal’s Registry and arranged for the urgent relisting of the matter. Although a definite hearing date and time could not be ascertained at this hearing, arrangements were subsequently made for the urgent delivery to SND by the Registry of the application and supporting documentation and the Registry was made aware of the desirability of a hearing date prior to 14 October 2020 being arranged.

21. On that basis we were satisfied that SND’s welfare and interests would not be prejudiced by the making of an adjournment order in the terms and subject to the arrangements described below.

22. The appropriate order would be one which the matter is formally “adjourned to a date to be fixed by the Tribunal”; but we noted that urgent arrangements will be made by the Commission and the Registry for the delivery of a copy of the Applications and supporting documentation to SND); and that the Registry will do its best to re-list the applications for hearing prior to 14 October 2020.

23. We ordered accordingly.

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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: 01 November 2021