Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ERT v Secretary, Department of Communities and Justice [2021] NSWCATAD 307 Hearing dates: On the papers Date of orders: 22 October 2021 Decision date: 22 October 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: D M Jay, Senior Member Decision: Application dismissed. Catchwords: ADMINISTRATIVE LAW – jurisdiction of the Tribunal – whether Tribunal has power to consider applications for grants of private funding for legal counsel under the (NSW) Children and Young Persons (Care and Protection) Act 1998 Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Administrative Decisions Review Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Cases Cited: BKW v Department of Family and Community Services [2014] NSWCATAD 205 The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) (1961) 106 CLR 48 Blair v Curran (1939) 62 CLR 464 Texts Cited: None cited Category: Principal judgment Parties: ERT (Applicant) Secretary, Department of Communities and Justice (Respondent) Representation: Solicitors: Applicant (Self Represented) Care Legal (Respondent) File Number(s): 2021/00192205 Publication restriction: A non-publication Order is made under s 64 (1) of the Civil and Administrative Tribunal Act 2013 (No. 2) (NSW) in respect of the names of private individuals, and other information which might identify them. Judgment 1. This is an application for summary dismissal pursuant to s 55 of the (NSW) Civil and Administrative Tribunal Act 2013 (the NCAT Act). 2. The applicant is ERT (the Applicant). He filed an Administrative Review Application on 5 July 2021 (the Application). The relief he seeks is in the following terms: For a continual time i have been applying for financial assistance by the recognised funding in the Aftercare Ministerial guidelines for foster care funding in NSW post 16 years of age. In 2017 I was denied any legal supports identified by Ministerial after care provisions. I was denied legal advice where I strongly advocate my needs to be. 1. On 29 July 2021 the Tribunal made directions that the Respondent file an application for summary dismissal along with any evidence and written submissions in support. The Applicant was referred to the Legal Assistance Referral Scheme for advice as t the summary dismissal application. 2. The Respondent's legal representative filed an Application for Miscellaneous Matters on 27 September 2021 (the SD Application) and submissions and evidence on 25 August 2021. 3. The Applicant filed his submissions and evidence in support on the SD Application on 20 September 2021. Background to Application 1. The Applicant was born on 1 October 1996 and was under the care of the Minister for Family and Community Services from 26 May 1998 to 1 October 2014 (when he turned 18). 2. A Leaving Care Plan was approved for the applicant by the Secretary of the Department of Communities and Justice in September 2014. 3. The Applicant had been convicted and placed on a good behaviour bond in February 2017 after pleading guilty to an offence. On 4 May 2017 the Applicant requested support for private legal representation from the Respondent. His application for assistance to Legal Aid was declined on the basis that the appeal had no reasonable prospects of success. He had been granted legal aid for legal representation in respect of the original trial. 4. On 4 September 2017 Marie New, Executive District Director, wrote to the applicant and advised him that he had been provided with all after care support outlined in Leaving Care Plan and recommended he contact local Community Legal Centres for further assistance. Ms New stated that any requests that are not related to reasonable and essential after care needs or correspondence that does not raise new issues would not be responded to further. I note that the time for lodging the appeal (and presumably the benefit of obtaining private legal assistance) expired in about June 2017. 5. The Applicant continued to correspond with staff of the Department of Family and Community Services in 2017 and 2018 insisting on a grant of funding for legal representation (amongst other things) under his Leaving Care Plan. 6. On 4 September 2018 the applicant lodged an Application in the Consumer and Commercial Division of NCAT seeking orders that the Respondent "do work or services (required by the Central Coast Legal Centre) to the approximate value of $10000" and to adjust his Leaving Care Plan to include funding for "a legal retainer, household establishment and a after care allowance for 6 months". That application was withdrawn by consent and the applicant commenced in the Administrative and Equal Opportunity Division of NCAT. 7. On 14 March 2019 the application in the Administrative and Equal Opportunity Division was dismissed by Senior Member Dr J Lucy for want of jurisdiction (the AEOD Dismissal). 8. The Respondent continued to engage with the Applicant including reviewing his Leaving Care Plan. On 24 August 2020, the Department of Communities and Justice (DCJ) reviewed the Applicant's Leaving Care Financial Plan in accordance with the DCJ Leaving and After Care Financial Guidelines. DCJ has approved $13,500 in additional After Care Funding in accordance with the After Care Review Plan. The SD Application 1. By the SD Application the Respondent seeks that the Application be dismissed on the following bases: 1. The Tribunal has no jurisdiction as the decision not to fund legal representation is not an administratively reviewable decision under the (NSW) Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 2. The Applicant is estopped from pursuing the Application as he seeks to relitigate the matters dealt with by the AEOD Dismissal. 3. The application is out of time. The Respondent's Submissions on Jurisdiction 1. The Respondent submits the relevant legislation that applies to decisions about after care funding is in Chapter 6 the Care Act. Administratively reviewable decisions under the Care Act are prescribed in s 245 of the Care Act and do not include decisions to decline to fund private legal representation for an appeal against a criminal conviction. Applicant's Submissions on Jurisdiction 1. The Applicant's submissions did not directly address the issue of want of jurisdiction. In broad terms he pointed to statistics which showed many persons under the care of the Minister have a criminal record and that "the respondent has not provided any legal clarification as to what is a care leaver entitlements are (sic)". Decision 1. The statutes establishing New South Wales Civil and Administrative Tribunal, the NCAT Act (section 30) and the (NSW) Administrative Decisions Review Act 1997 (the ADR Act) circumscribe its jurisdiction. Pursuant to s 9(1) of the ADR Act, the Tribunal has administrative review jurisdiction over the decision of an administrator if enabling legislation provides that applications may be may to the Tribunal for an administrative review under the ADR Act. 2. For the purposes of this Application the "enabling legislation" is the Community Services (Complaint, Review and Monitoring) Act 1993 (the CS Act). Specifically, s 28(1) of the CS Act provides that a person may apply to NCAT for an administrative review of decisions under s 245 of the Children and Young Persons (Care and Protection) Act 1998 (the Care Act). 3. Section 164 of the Care Act provides that the Minister is responsible for the provision of accommodation for any child or young person for whom the Minister has parental responsibility and s 165 provides that the Minister is to provide or arrange for such assistance for certain children and young persons who leave out of home care until they reach the age of 25 years including "financial assistance and assistance for obtaining accommodation, setting up house, education and training, finding employment, legal advice and accessing health services". 4. Section 245 of the Care Act sets out the decisions that are administratively reviewable by NCAT as follows: 1. a decision of the relevant decision-maker to suspend a person's authorisation as an authorised carer or to impose conditions on a person's authorisation, 2. a decision of the relevant decision-maker to cancel a person's authorisation as an authorised carer, other than a decision to cancel an authorisation granted on a provisional basis or a decision to cancel an authorisation on the occurrence of an event prescribed under section 137(2)(e), 3. a decision of the relevant decision-maker to grant to, or to remove from, an authorised carer the responsibility for the daily care and control of the child or young persons, 4. a decision of the Secretary to transfer a child protection order to a participating State under Division 1 of Part 2 of Chapter 14A, 5. a decision of the Minister or the Secretary belonging to such class of decisions as may be prescribed by the regulations, 6. a decision of the Minister or the Secretary under section 246 with respect to the accommodation of a child or young person, 7. a decision of a relevant decision-maker to refuse to make a decision referred to in this section that the decision-maker is empowered and has been requested to make, 8. a decision of a designated agency to disclose high level identification information concerning the placement of a child or young person, 9. a decision of a designated agency to refuse to disclose information concerning the placement of a child or young person, 10. a decision of the Secretary or a designated agency as to the suitability of a person to be a guardian. 1. It is correct to say that the Tribunal has no power to enquire at large into matters that take its interests but over which it has no jurisdiction. There is a duty not to hear such a case: The Mutual Life and Citizens' Assurance Company Ltd v Attorney General (Qld) (1961) 106 CLR 48. 2. It is clear that decisions made under s 165 of the Care Act are not the subject of administrative review under s 245. The applicant feels aggrieved that he has not been granted funding to retain private lawyers to conduct an appeal for a conviction that occurred in 2017. In my view, s 165 of the Care Act permits funding for legal advice but does not provide for funding to engage private legal counsel. Next, a decision made by the Respondent under s 165 is not administratively reviewable decision under s 245 and the Tribunal has no jurisdiction to review it. For that reason, the Application must be dismissed. 3. Section 32 of the CS Act permits the Tribunal in its discretion to decline to hear or determine an application if, in the opinion of the Tribunal the applicant has available an alternative and satisfactory means of redress. If the Tribunal is not correct in its determination that there is no jurisdiction to review the decision, then it is the opinion of the Tribunal that the appropriate and satisfactory means of addressing the issue is to refresh an application to either Legal Aid or through a Community Legal Centre. Estoppel 1. The Respondent submits that the Applicant is seeking to relitigate issues that have been determined in the 2019 Application. At paragraph 73 of the Respondent's Submissions it is put: As was held in A v Secretary, Department of Communities and Justice (No 5) [2020] NSWSC 1340 at [88], it is an abuse of process to re-litigate the same issues which have already determined by the Court. The decision to decline the provision of financial assistance for legal support has already been determined by the Tribunal. 1. I assume that the Respondent relies on a res judicata estoppel. That form of estoppel occurs when "the very right or cause of action claimed or put in issue in the former proceedings, passed into judgment so that it merged and no longer has any independent existence": Blair v Curran (1939) 62 CLR 464 at 532 per Dixon J. 2. I was not provided with the reasons for decision for the 2019 Application. It is not clear to me the basis on which that Tribunal determined that it did not have jurisdiction. There is insufficient material before me to determine what was the subject of the hearing or the matters determined in it. In those circumstances, I decline to find that there is an estoppel. Application Filed Out of Time 1. The Respondent submits that unless an extension of time is granted under s 41 of the NCAT Act an application for review of an administratively reviewable decision must be brought within 28 days after the day on which the internal review is taken to be finalised. There was no review in this matter but the Respondent notes that the After Care Financial Plan was completed by the Respondent on 24 August 2020 and the Application was filed on 5 July 2021. It is submitted that it is not in the interests of justice to extend time in this case. 2. The Applicant did not file an application to extend time to hear the Application. 3. If I had found that the Tribunal has jurisdiction, I would not have granted an extension of time to bring the Application. 4. In BKW v Department of Family and Community Services [2014] NSWCATAD 205 at [18] and [34] it was held that time limits should generally be strictly enforced unless the interests of justice require an extension to be granted, and in that matter a delay of 6 weeks was considered a substantial delay in proceedings of this nature. 5. There is significant and substantial delay having regard to the nature of the application in relation to a request for funding for litigation was determined some 9 months before this application was lodged. The period of time is greater than the period of time referred to in BKW v Department of Family and Community Services. Even if the decision was set aside or varied the matter in issue (the funding of an appeal for a criminal conviction in 2017) has passed. 6. In the absence of the matters referred to in the previous paragraph I would have declined any application to extend the time to hear the application. Determination 1. For each of the reasons given above, I find that the Tribunal has no jurisdiction to review the decision the subject of the application. The application is dismissed. Order 1. Application dismissed. ********** 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 Amendments 22 October 2021 - Restricted 22 October 2021 - Paragraph 2 - Applicant is ERT DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021