Vu v NSW Trustee and Guardian

[2011] NSWADTAP 45

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

VU v NSW Trustee and Guardian [2011] NSWADTAP 45

Hearing dates:

18 March 2011

Decision date:

06 October 2011

Jurisdiction:

Appeal Panel - External

Before:

S Higgins, Deputy President
J Millar, Judicial Member
M Bolt, Non-Judicial Member

Decision:

1.Leave to appeal on the merits is refused.

2.Appeal dismissed.

Catchwords:

APPEAL - question of law - procedural fairness - bias

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987
NSW Trustee and Guardian Act 2009
Powers of Attorney Act 2003

Cases Cited:

Ebner v Official Trustee in Bankruptcy [2000] HCA 63
FX v NSW Trustee & Guardian (External) [2011] NSWADTAP 31
K v K [2000] NSWSC 1052
Minister for Immigration and Multicultural affairs v Jai (2001) 2005 CLR 507
Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
Re R [2000] NSWSC 886
Reg v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
S v S [2001] NSWSC 146

Category:

Principal judgment

Parties:

VU - Appellant
NSW Trustee and Guardian - First Respondent
VV - Second Respondent
VW -Third Respondent

Representation:

VU (Appellant in person)
NSW Trustee and Guardian (First Respondent) (submitting appearance)
Jessep & Storm Solicitors (Second Respondent)
CBD Legal (the Protected Person)

File Number(s):

108007

Publication restriction:

s 126 of the Administrative Decisions Tribunal Act 1997 applies

 Decision under appeal 

Date of Decision:

2010-07-16 00:00:00

File Number(s):

C/43673

REASONS FOR DECISION

Introduction

1. EXTERNAL APPEAL (S Higgins, Deputy President; J Millar, Judicial Member; M Bolt, Non-Judicial Member) The appellant, VU has appealed against a decision of the Guardianship Tribunal to make orders concerning her mother, VW. The orders made by the Guardianship Tribunal were (a) a guardianship order in respect of VW under the provisions of the Guardianship Act 1987. The Public Guardian and VU were appointed separately as the guardians and the order was a continuing order for 12 months, and (b) an order that the estate of VW be made subject to management under the provisions of the NSW Trustee and Guardians Act 2009, with the management of her estate being committed to the NSW Trustee.

1. VU has appealed against the Guardianship Tribunal's decisions on a question of law. In addition to this VU seeks leave to appeal on the merits of the Guardianship Tribunal's decision: see the Administrative Decisions Tribunal Act 1997 (the ADT Act), subsection 118B(1).

1. VW has three children, two daughters and a son. She is an 85 year old widow who resides in a dementia-specific high-care unit in a nursing home. On 20 March 2008, VW appointed her daughter, VU (the appellant) as her attorney under an enduring power of attorney. At the same time, VW appointed VU as her enduring guardian. Prior to November 2009, VW was living in her own home. For 5 years, VV, VW's son, had been living with her, on a permanent basis, as her carer. On 23 November 2009, VW was admitted to hospital after dislocating her shoulder. VW was transferred from the hospital to the nursing home on 30 November 2009.

1. On 5 December 2009, VW wrote a letter revoking her enduring power of attorney and guardianship and gave her son full use of her home.

1. On 8 December 2009, VV applied to the Guardianship Tribunal for a review of the enduring guardianship appointment his mother had made on 20 March 2008. On 14 December 2009, VV made a further application to the Guardianship Tribunal seeking review of the enduring power of attorney appointment his mother had made on 20 March 2008. On 10 March 2010, a further application was made by VV to the Guardianship Tribunal. In this application, VW sought an order from the Guardianship Tribunal for the appointment of a guardian and financial manager for VW. The applications were listed for hearing on 17 March 2010. On the application of the appellant, VU, the hearing was adjourned to 16 July 2010.

1. The Guardianship Tribunal made its decision on 16 July 2010. The Guardianship Tribunal provided the parties with a copy of its reasons for decision under the cover of a letter dated 19 August 2010. VU's appeal to this Tribunal was lodged on 29 September 2010. In VV's reply to VU's Notice of Appeal, he asserted that this Tribunal had no jurisdiction to hear and determine the appeal as it had been lodged out of time. Paragraph 118B(2)(a) of the ADT Act provides that appeals to which that section applies (i.e. external appeals which include appeals from the Guardianship Tribunal) must be made within 28 days after the 'decision-maker' (in this case the Guardianship Tribunal) provides the party with the written reasons the subject of appeal. However, paragraph 118(2)(b) of the ADT Act gives the Appeal Panel a discretion to extend that time.

1. At the commencement of the hearing of this appeal, the Appeal Panel heard oral submissions from the parties in regard to this issue. It was not disputed that VU lodged her appeal out of time. How long out of time was not altogether clear, however, it was no more than 12 days out of time. After considering the written and oral submissions we made an order extending the time for VU to lodge her appeal to 29 September 2010. Brief reasons for this decision were also given at that time.

1. At the conclusion of the hearing of the appeal we made orders for the filing and serving of written submissions, by VV and the representative of VW, in response to the written submissions that had been filed by VU that day. An order was also made for VU to file and serve written submissions in reply (if any). The parties each filed written submissions in accordance with these orders.

Relevant legislative framework

1. The relevant legislative framework in which the decision of the Guardianship Tribunal was made is briefly described below.

1. The jurisdiction of the Guardianship Tribunal includes:

(a) the making of and reviewing guardianship orders: Part 3 of the Guardianship Act 1987 (the G Act);

(b) the making and reviewing of financial management orders: Part 3A of the G Act;

(c) reviewing the appointment (or purported appointment) of an enduring guardian: subsection 6J(1) of the G Act; and

(d) reviewing an enduring power of attorney: section 33 of the Powers of Attorney Act 2003 (PA Act).

1. There is no dispute that the Guardianship Tribunal, when conducting proceedings, is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit. In addition, proceedings are to be conducted with as little formality and legal technicality and form as the circumstances of the case permit: subsection 55(2) of the G Act.

1. Reviewing an enduring guardian - The jurisdiction to review an appointment of an enduring guardian arises where a person who, in the opinion of the Guardianship Tribunal has a genuine concern for the welfare of the appointor (in this case VW), requests the Guardianship Tribunal to conduct a review: see paragraph 6J(1)(b) of the G Act. On reviewing the appointment of an enduring guardian the Guardianship Tribunal may revoke the appointment, or confirm the appointment with or without varying the functions of the enduring guardian: subsection 6K(1) of the G Act. However, the Guardianship Tribunal cannot revoke the appointment of an enduring guardian unless the enduring guardian requested the appointment, or the Tribunal is satisfied that it is in the best interest of the appointor that the appointment be revoked: subsection 6K(2) of the G Act.

1. Where the Guardianship Tribunal decides to revoke the appointment of an enduring guardian, it is given power to proceed as if an application for a guardianship order under Part 3 of the G Act had been made and/or an application for a financial management order under Part 3A had been made in respect of a person who appointed the enduring guardian: subsection 6K(3) of the G Act. It is noted that in VV's proceedings before the Guardianship Tribunal, the Tribunal did not revoke the 2008 appointment by VW of VU as her enduring guardian.

1. Reviewing a power of attorney - The Guardianship Tribunal's powers in reviewing an enduring power of attorney include declaring that a power of attorney is invalid, vary the terms of the power of attorney, removing a person from the office as an attorney and appoint a substitute attorney and revoking a power of attorney: section 36 of the PA Act and 25F(d) of the G Act.

1. Subsection 37(1) of the PA Act, gives the Guardianship Tribunal the power to treat an application for review of an enduring power of attorney as an application for a financial management order under Part 3A of the G Act. This power, however, can only be exercised where the Guardianship Tribunal decides to make no orders under section 36 of the PA Act.

1. A Guardianship order - An application for a guardianship order can be made by the person for whom the order is sought, the Public Guardian and any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person for whom the order is sought: section 9 of the G Act.

1. Before making a guardianship order, the Guardianship Tribunal must be satisfied of the matters set out in section 14 of the G Act. That section provides:

14 Tribunal may make guardianship orders

(1) If, after conducting a hearing into any application made to it for a guardianship order in respect of a person, the Tribunal is satisfied that the person is a person in need of a guardian, it may make a guardianship order in respect of the person.

(2) In considering whether or not to make a guardianship order in respect of a person, the Tribunal shall have regard to:

(a) the views (if any) of:

(i) the person, and

(ii) the person's spouse, if any, if the relationship between the person and the spouse is close and continuing, and

(iii) the person, if any, who has care of the person,

(b) the importance of preserving the person's existing family relationships,

(c) the importance of preserving the person's particular cultural and linguistic environments, and

(d) the practicability of services being provided to the person without the need for the making of such an order

1. Accordingly, a decision to make a guardianship order under section 14 of the G Act is a 2 stage process. The first stage involves a decision that the person is in need of a guardian. If satisfied that the person is in need of a guardian, the Guardianship Tribunal must then consider whether it should exercise its discretion to make a guardianship order after taking into account the considerations in subsection 14(2).

1. Where the Guardianship Tribunal considers that a guardianship order should be made, it must then determine whom to appoint as the guardian. That decision is made having regard to the factors set out in subsection 15(3) of the G Act. That subsection provides:

15 Restrictions on Tribunal's power to make guardianship orders

[...]

(3) A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person

1. Where the Guardianship Tribunal makes a guardianship order under section 14 of the G Act, section 6I of the Act provides that any enduring guardian appointment made by the person the subject of the guardianship order (i.e. the protected person) is suspended while the guardianship order is in force.

1. A Financial Management order - An application for a financial management order can be made by the NSW Trustee, or any other person who, in the opinion of the Tribunal, has a genuine concern for the welfare of the person for whom the order is sought: section 25I of the G Act. Section 25F sets out other circumstances in which the Guardianship Tribunal can make a financial management order, including where the Tribunal makes no orders under section 36 of the PA Act. Section 25K sets out the circumstances where the Guardianship Tribunal cannot make a financial management order. These circumstances are not relevant to VW.

1. The Guardianship Tribunal can only make a financial management order where it is satisfied of the matters set out in section 25G. That section provides:

25G Grounds for making financial management order

The Tribunal may make a financial management order in respect of a person only if the Tribunal has considered the person's capability to manage his or her own affairs and is satisfied that:

(a) the person is not capable of managing those affairs, and

(b) there is a need for another person to manage those affairs on the person's behalf, and

(c) it is in the person's best interests that the order be made.

1. Where the Guardianship Tribunal exercises its discretion to make a financial management order, it orders the estate of the person to be subject to management under the NSW Trustee and Guardian Act 2009: subsection 25E(1) of the G Act. However, it must also decide who to appoint as manager. Subsection 25M(1) of the G Act provides that the Tribunal may appoint a 'suitable person' as manager of the person's estate, or commit the management of that estate to the NSW Trustee.

1. Where the Guardianship Tribunal makes a financial management order under section 25E of the G Act by ordering the estate of a protected person be subject to management under the NSW Trustee and Guardian Act 2009, section 50 of the PA Act suspends any existing power of attorney executed by the protected person while the management order is in force.

Grounds of appeal

1. In her amended notice of appeal, VU identified two grounds of appeal on a question of law. These were:

(a) denial of procedural fairness; and

(b) apprehended bias.

1. Both grounds concern questions of law and it is convenient to deal with these first as the appellant, VU, has an automatic right to appeal on errors of law: see paragraph 118(1)(a) of the ADT Act.

1. The other grounds of appeal concerned the merits of the decisions of the Guardianship Tribunal to (a) appoint the Public Guardian and VU as guardians for VW and (b) order the management of the estate of VW be committed to the NSW Trustee. There is no appeal as of right in regard to the merits of the decision of the Guardianship Tribunal. An appeal on the merits only lies where the Appeal Panel grants leave to appeal on the merits: see s 118(1)(b) of the ADT Act.

1. VV and the guardian ad litem for VW, contended that VU had failed to establish any error of law and opposed the granting of leave to appeal on the merits.

Denial of procedural fairness

1. It is not disputed that the rules of procedural fairness include a rule that a person whose legal rights and obligations will be affected by a decision must be given a fair hearing. A fair hearing includes giving parties a reasonable opportunity to understand the matters at issue and also an opportunity to present their case and respond to any adverse material.

1. In her amended notice of appeal, VU said that she had been denied procedural fairness on 2 occasions. The first occasion was 16 March 2010 and the second occasion was during the hearing on 16 July 2010.

1. 16 March 2010 - as we have already mentioned, VV's application to the Guardianship Tribunal was first heard on 17 March 2010. VU's complaint was that despite a number of telephone calls, the Guardianship Tribunal failed to provide her with all the documents relevant to VV's applications until 5.00pm on the afternoon of 16 March 2010. She said she received these by email and that they included a substantial change in details of the hearing in that, her brother was 'applying to have Guardianship and Attorney for our mother granted to him.'

1. There is no dispute that the Guardianship Tribunal provided documents to VU late in the afternoon of 16 March 2010. That documentation we assume included the further application her brother, VV, had lodged with the Guardianship Tribunal on 10 March 2010. These further applications being for the appointment of a guardian and a financial manager.

1. A failure to give a party an adequate opportunity to consider and respond to documents that are adverse to or, affect the rights of that party will amount to a denial procedural fairness. On the material before the Appeal Panel this is not what occurred on this occasion. It is regrettable that the Guardianship Tribunal provided the relevant documentation to VU so close to the hearing. However, as VV's applications did not proceed to a full hearing that day it cannot be said that VU was denied procedural fairness. In this regard we note from the transcript of that day that, at the commencement of the hearing, having acknowledged the late receipt of documentation by VU and the fact that VU had provided documents that morning, the Guardianship Tribunal informed the parties that the matter would be adjourned so that each party had sufficient time to consider and respond to the documents.

1. 16 July 2010 - In her amended notice of appeal, VU said that during the hearing on 16 July 2010, the Guardianship Tribunal 'varied' the decisions it was going to make. That is, the Guardianship Tribunal decided to treat VV's applications for review as an application for a financial management order and an application for a guardianship order and in doing so:

(a) VU was given inadequate notice of the Tribunal's intention to make this 'variation'; and

(b) VU was not given an adequate opportunity to take advice, consider her position or make submissions in regard to the 'variations'.

1. In our view, VU's assertions are misconceived and not supported by the material before the Appeal Panel. As pointed out by the Guardianship Tribunal, at page 2 of its reasons for decision, it had before it 4 applications by VV. There were 2 review applications and an application for the appointment of a guardian and an application for the appointment of a financial manager. As we have outlined above, under the G Act, an application for the appointment of a guardian requires the Guardianship Tribunal to first make a guardianship order under section 14 of the G Act and an application for the appointment of a financial manager requires the Tribunal to first make a financial management order under section 25E of the G Act.

1. We note that on 17 March 2010, following a question by VU, the Guardianship Tribunal expressly made reference to the 4 applications that were before it: see T of 17/03/10 at p7 (Exhibit A4). The Guardianship Tribunal also provided an explanation of what these applications were and the orders that the Tribunal could make and the basis on which they were made.

1. The transcript of the adjourned hearing on 16 July 2010 does not evidence the Guardianship Tribunal having departed from the orders sought in the applications that were before it and which were explained to the parties on 17 March 2010. That is, it did not in any sense 'vary' the decisions, or orders it could or might make. At all times it acted in accordance with the orders sought in the applications that were before it.

1. Nor does the material before the Appeal Panel evidence VU having not been given an opportunity to take advice, or consider her positions in regard to the orders sought. In this regard we note that VU participated fully in the discussions before the Guardianship Tribunal on 16 July 2010 in regard to the appointment of a guardian and a financial manager and at no time did she indicate that she wanted to seek advice or make submissions in regard to these issues.

1. We also note that the Guardianship Tribunal did not accept VW's December 2009 letters of revocation and confirmed VU's appointment as enduring guardian and enduring attorney. As explained above, both appointments were suspended by reason of the guardianship and financial management orders made by the Guardianship Tribunal, which were clearly orders open to it on the basis of the applications made by VV.

1. Accordingly, we find that VU has failed to establish this ground of appeal.

Bias

1. In her amended notice of appeal, VU, contended that the Guardianship Tribunal erred by reason of apprehended bias.

1. The principle, which has evolved from the fundamental rule of natural justice, that a judicial officer should be free from bias, reflects a concern with the need to maintain public confidence in the administration of justice. This concern is expressed in the cognate principle that, not only must justice be done, it must be seen to be done.

1. It is well accepted that bias, actual or apprehended, is a departure from the fundamental principle that the Tribunal be independent and impartial. Actual bias is established where it is shown that the decision maker's state of mind 'is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may present it': see Minister for Immigration and Multicultural Affairs v Jia (2001) 205 CLR 507 at 532.

1. The test for apprehended bias is that a fair-minded observer might reasonably apprehend that a decision-maker might not bring an impartial mind to the resolution of the question to be decided: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; Reg. v. Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, at pp 258-263 and Livesey v. New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, at pp 293-294.

1. The High Court in re Ebner emphasised that the test for apprehended bias is an objective one and requires a real possibility of apprehended bias.

1. In her amended notice of appeal, VU contended that the following events were evidence of apprehended bias by the Guardianship Tribunal;

(a) the Tribunal repeatedly interrupting her while she was giving evidence thus failing to ensure that she was given reasonable opportunity to present her case;

(b) the Tribunal failed to correctly name and identify her;

(c) the Tribunal made assumptions and findings of fact where there was no evidence to support the findings, or the only evidence available indicated that the assumptions were incorrect;

(d) the Tribunal failed to properly record the proceedings.

1. In support of her argument on bias, VU tendered into evidence an affidavit of Eric Mark Evans who said he had attended both hearings as an observer. We understand that he had attended with VU. In his affidavit Mr Evan's asserted that in his opinion the person appointed to represent VW and the Guardianship Tribunal Members were each biased against VU. Mr Evans also gave some examples of what he considered to have been conduct of a biased nature.

1. Although we do not level any criticism of the opinions expressed by Mr Evan's in his affidavit, they are his subjective opinions and of little assistance in the Appeal Panel in determining whether, as objectively assessed, the Guardianship Tribunal was biased as alleged by VU.

1. Interruptions - When asked to point to examples of interruptions in the transcript of the hearings before the Guardianship Tribunal, VU was only able to point to one interruption during the course of the hearing on 16 July 2010. That interruption was to the effect that the Tribunal member said to UV that she had 'better be quick' in her explanation.

1. We accept VU's evidence that she found the proceedings before the Guardianship Tribunal to be extremely stressful. However, we do not find that the interruption pointed to by her was other than a comment about the need to progress the hearing on that day in a timely manner. The Tribunal Member could perhaps have expressed this need in a better way, however her failure to do so does not mean that she ceased to be impartial.

1. Tribunal failed to correctly name and identify VU - The decision and orders of the Guardianship Tribunal, incorrectly state VU's middle name. VU in her written submissions stated that this error had been pointed out to the Tribunal's case officer at the commencement of the proceedings. There did not appear to be any dispute that the middle name of VU has been incorrectly recorded in the decision of the Guardianship Tribunal. However, this of itself does not evidence bias by any of the Members of the Guardianship Tribunal hearing and determining VV"s applications. The error is clearly an administrative error and one, which can and should be corrected.

1. Tribunal made assumptions and findings of fact where the assumptions were incorrect and there was no evidence to support the findings - VU in her written and oral submissions pointed to numerous alleged errors in the reasons for decision of the Guardianship Tribunal. These included the fact that (a) VV was the son from VW's first marriage and VU was the daughter from her second marriage, when all 3 children were from VW's first marriage; (b) the date on which VU was appointed VW's attorney; (c) which police station placed an apprehended domestic violence order on VV and (d) VU failing to provide documents. We do not accept that each of the matters raised by VU were errors of fact. Nevertheless, even if the findings of fact as identified by VU were incorrect, they were findings of fact that were open to the Guardianship Tribunal on the material before it. Furthermore, the fact that some of these findings may have been incorrect does not of itself evidence bias. That is, when objectively assessed they do not evidence that the Guardianship Tribunal may not have brought an impartial mind to the resolution of the questions it had to decide.

1. Tribunal failed to properly record the proceedings - VU and Mr Evans contended that the transcript of the hearing on 17 March and 16 July 2010 failed to record everything that was said. They also pointed to the fact that the transcript regularly made reference to 'not transcribable'. This is not unusual, particularly where a hearing is informal as is the case of a hearing before the Guardianship Tribunal. In any event the Members of the Tribunal hearing an application made before the Guardianship Tribunal do not have any involvement in or responsibility for the recording of the hearing before it. Nor do the Members of the Tribunal have any involvement in or responsibility for the preparation of the transcript. The provision of recording services and transcript services is an administrative support function. Who provides that function we do not know, but we note that in this appeal, Liston & Clifton Lawyers, the then solicitors acting for VU, had had filed and served the transcript of the hearing before the Guardianship Tribunal on 24 February 2011.

1. Accordingly, we find that UV has failed to establish this ground of appeal.

Application for leave to appeal on the merits

1. The principles applicable to the granting of leave to extend an appeal to the merits was recently set out by the Appeal Panel in FX v NSW Trustee & Guardian (External) [2011] NSWADTAP 31 at [34] and [35]. As pointed out by the Appeal Panel in FX, the ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. However, the Appeal Panel pointed out that the Supreme Court had provided some guidance on this issue in K v K [2000] NSWSC 1052 and S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886. The Appeal Panel, in following the principles set out in these decisions, said at [35] the following:

'35. Those cases interpret s 67(1)(b) of the Guardianship Act which is the equivalent provision to s 118(B)(1)(b) of the ADT Act in relation to appeals from Tribunal decisions to the Supreme Court. In K v K Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal under s 67' but went on to make a number of observations on this point. See para [10] to [15]. After considering the relationship between the Court and the Tribunal Young J observed at [15] the following:

'It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases even if they are not questions of the law may well be subjects on which the Court will grant leave to appeal. On the other hand it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indicators that the Tribunal has gone about the fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interest of justice for it to be reviewed'.

1. As pointed out by the Appeal Panel, in FX , at [36], the fact that the appellant disagrees with the decision of the Guardianship Tribunal is not a sufficient basis to grant leave to appeal on the merits of a decision. What the appellant must show is that the fact-finding exercise was, as expressed by Young J, to have undergone in such a way that it was unfair and that it would be in the interests of justice for it to be reviewed.

1. In our view, having regard to all the material before it, we find that those circumstances do not arise in this appeal. As we have already indicated, the findings that were made by the Guardianship Tribunal were clearly available to it on the material that it had before it. On this basis alone, we would not grant leave to VU to appeal on the merits of the decision of the Guardianship Tribunal.

1. We also note that during the course of the hearing VU said that her reason for appealing was to have her appointment as the enduring guardian and attorney restored. She acknowledged that there was a major conflict between her brother and herself, and inferred that she would voluntarily submit her powers to the Public Trustee and the Public Guardian. That is, she appeared to agree with the orders that were made but was dissatisfied with the findings of the Guardianship Tribunal in regard to her role as enduring guardian and attorney for her mother. While we can understand VU's concern, VU also needs to understand the role of the Guardianship Tribunal as set out in the G Act and the PA Act and the orders it can make. These, as we have pointed out, the Guardianship Tribunal explained to her during the first day of hearing. In making this comment we are not in anyway critical of VU.

Conclusions and orders

1. For the reasons set out above, we find that VU has failed to establish: (a) any errors of law in the decision of the Guardianship Tribunal and (b) any grounds on which leave should be granted to appeal on the merits of that decision. Accordingly, the appropriate order is to formally refuse leave to appeal on the merits and also dismiss the appeal.

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Decision last updated: 06 October 2011