Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZAG v NSW Trustee and Guardian [2016] NSWCATAP 19 Hearing dates: 2 November 2015 Date of orders: 02 November 2015 Decision date: 21 January 2016 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President M Schyvens, Deputy President B McPhee, Senior Member Decision: 1. The time for lodging the appeal is extended to 31 July 2015. 2. Appeal upheld. 3. The orders made by the Guardianship Division on 4 May 2015 are set aside. 4. The matter is remitted to be reconsidered by the Tribunal with further evidence. 5. Order 2 does not come into effect until the Guardianship Division re-determines the application. Catchwords: APPEAL – procedural fairness – 2 days' notice of hearing inadequate – urgency does not justify short notice - failure to adequately disclose material prior to hearing – failure to suggest an adjournment STATUTORY INTERPRETATION – meaning of phrase "given reasons for the decision" in r 25(4)(c) of the Civil and Administrative Tribunal Rules 2014 – applicability of posting rule presumption Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Interpretation Act 1987 (NSW) Guardianship Act 1987 (NSW) NSW Trustee and Guardian Act 2009 (NSW) Cases Cited: Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 Italiano v Carbone and Ors [2005] NSWCA 177 Kioa v West (1985) 159 CL `R 550 Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 Melville and Ors v Townsville CC [2003] QCA 456 Re O'Connell and Secretary, Department of Social Security (1991) 23 ALD 408 Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 Soong v Deputy Commissioner of Taxation [2011] NSWCA 26 Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 Texts Cited: Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013, Lawbook Co) DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) Category: Principal judgment Parties: ZAG (Appellant) NSW Trustee and Guardian (1st Respondent) Public Guardian (2nd Respondent) ZAQ (3rd Respondent) Representation: Solicitors: Legal Aid NSW (Appellant) Family and Community Services (3rd Respondent) File Number(s): AP 15/46103 Publication restriction: Internal appeal decisions from Guardianship Division proceedings are anonymised to remove any information that may identify any person involved in the Tribunal's proceedings: s 65 of the Civil and Administrative Tribunal Act 2013 (NSW). Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 4 May 2015 Before: A. BeckettF. DuffyJ. Koussa File Number(s): C/59068 2015/2907 reasons for decision Introduction 1. ZAG has appealed from two decisions of the Guardianship Division of the Tribunal. The first was to make a guardianship order in relation to her and appoint the Public Guardian as her guardian. The second was to make a financial management order in relation to her and to appoint the NSW Trustee and Guardian as her manager. The main grounds of appeal are that the Tribunal breached the rules of procedural fairness by failing to give ZAG adequate notice of the hearing, failing to adequately disclose the issues and material to be considered at the hearing and failing to suggest that she apply for an adjournment. We have decided that the Tribunal breached those rules and have set aside the Guardianship Division's decisions. The matter is to be reconsidered by the Guardianship Division having regard to any further evidence that may be provided. 2. Before she turned 18 in April 2015, ZAG was under the care of the Minister for Family and Community Services. On 1 April 2015 ZAQ, who was a manager with the Department of Family and Community Services, applied for a guardianship order and a financial management order in relation to ZAG. The hearing was set down for 4 May 2015. 3. The two active parties to the proceedings were the appellant, ZAG, and the Departmental Manager, ZAQ. We will refer to him in these reasons as the Departmental Manager. Neither the NSW Trustee and Guardian nor the Public Guardian chose to play any role in the proceedings. Was the appeal lodged within time? 1. A preliminary issue in these proceedings is whether the appeal was lodged within time and, if not, whether we should accept it. 2. An internal appeal must be lodged "within 28 days from the day on which the appellant was notified of the decision to be appealed or given reasons for the decision (whichever is the later)." Civil and Administrative Tribunal Rules 2014 (NSW) (NCAT Rules), r 25(4)(c). The Tribunal may extend the time for the lodgement of an appeal: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 41. ZAG applied in writing for the time to be extended but submitted, in the alternative, that the appeal had been lodged within time. 3. The Tribunal gave its orders on 4 May 2015 and delivered written reasons dated 29 May 2015. Those reasons were posted to the parties on 1 June 2015. According to ZAG's solicitor, ZAG says she moved house and did not receive the written reasons until 3 July 2015. That was the day the NCAT Registry emailed the reasons to her solicitor. On the basis of a decision interpreting a provision of the Social Security Act 1991 (Cth), ZAG submitted that time does not begin to run until she actually received the written reasons: Re O'Connell and Secretary, Department of Social Security (1991) 23 ALD 408. In addition, she submitted that s 76 of the Interpretation Act 1987 (NSW) does not apply because the reasons are not being "served". 4. We are not aware of any case in which the phrase "the appellant was . . . given reasons for the decision" in r 25(4)(c) of the NCAT Rules has been considered in any detail. But the Queensland Court of Appeal interpreted a similar phrase in much the same context in Melville and Ors v Townsville CC [2003] QCA 456. The relevant phrase in that case was in s 65(1) of the Land Court Act 2000 (Qld): A party intending to appeal against a decision of the Land Court must, within 42 days after the court's decision is given to the party, serve notice of appeal against the decision on - (a) all other parties to the proceeding on which the decision was made; and (b) the registrar of the Land Appeal Court. (Emphasis added) 1. At [27], Philippides J (with whom Jerrard JA and Dutney J agreed) interpreted the words "given to the party" as having their ordinary meaning of "delivered" or "handed over". The Court accepted that the phrase necessarily implies notification to the party. The Court also acknowledged, at [28], that there is a presumption that if the decision is "given to" a party by posting it as a letter, "service is taken to be effected at the time when the letter would be delivered in the ordinary course of the post, unless the contrary is proved (see ss 39 and 39A of the Acts Interpretation Act)." This rule is sometimes called the "posting rule presumption": DC Pearce and RS Geddes, Statutory Interpretation in Australia, (8th ed 2014, LexisNexis Butterworths) at 302. A similar presumption is created by r 13(4) of the NCAT Rules. Unless the contrary is proved, the time at which the notice was served is at the end of the fourth working day after the date on which the notice was posted. 2. The letter containing the reasons for decision was posted on 1 June 2015. Rule 13 of the NCAT Rules applies to the "service, giving and lodgment of notices or documents". Pursuant to r 13(4), ZAG is taken to have been given the reasons on 5 June 2015, the fourth working day after the letter was posted. 3. ZAG's solicitor told the Appeal Panel that ZAG had told her that she did not receive the letter because she had moved house. Even if ZAG did not receive the letter, the posting rule presumption applies because there is no evidence that the letter was not delivered: Soong v Deputy Commissioner of Taxation [2011] NSWCA 26. In all the circumstances we find that ZAG was given reasons for the decision on 5 June 2015. The Notice of Appeal was filed on 31 July 2015 and is therefore 28 days late. Should the appeal be accepted out of time? 1. The time for lodging an appeal may be extended even though the time has expired: NCAT Act, s 41. The principles for determining whether an appeal should be accepted out of time were set out by the Appeal Panel in Jackson v NSW Land and Housing Corporation [2014] NSWCATAP 22 at [22]: (3) Generally, in an application for an extension of time to appeal the Appeal Panel will be required to consider: (a) The length of the delay; (b) The reason for the delay; (c) The appellant's prospects of success, that is usually whether the applicant has a fairly arguable case; and (d) The extent of any prejudice suffered by the respondent (to the appeal), 1. The relatively lengthy delay (28 days) is outweighed in this case by three factors: the efforts made by ZAG's solicitors to obtain a copy of the reasons and to file a Notice of Appeal promptly after receiving those reasons; the prospects of success on appeal and the fact that the Departmental Manager does not oppose time being extended. The time for lodging the appeal is extended to 31 July 2015. Guardianship Division's decision 1. On 4 May 2015, the Guardianship Division made a guardianship order in relation to ZAG for one year and appointed the Public Guardian as her guardian. The Public Guardian was given the functions in relation to access (deciding what access ZAG has to others and the conditions of that access) accommodation (deciding where ZAG should live) and health care (deciding what health care ZAG may receive). 2. The Tribunal also made a financial management order on the same date. The estate of ZAG was subject to management under the NSW Trustee and Guardian Act 2009 (NSW) and the management of the estate was committed to the NSW Trustee and Guardian. Grounds of appeal 1. The grounds of appeal were a failure to afford procedural fairness by not: 1. giving ZAG adequate notice of the hearing; 2. disclosing to ZAG the issues and the material to be considered at the hearing; 3. suggesting that she apply for an adjournment. 1. ZAG has the right to appeal on these grounds because they are questions of law: NCAT Act, s 80(2)(b). 2. ZAG withdrew the grounds of appeal that the Tribunal erred by not appointing a separate representative for her and by failing to provide adequate reasons. Given our conclusion in relation to the grounds of appeal relating to procedural fairness, we decided at the Appeal Panel hearing that there was no need to address several other grounds of appeal relating to various provisions of the Guardianship Act 1987 (NSW). Adequacy of notice period 1. According to her solicitor, the first time ZAG became aware of the hearing was on Monday 4 May 2015, the day of the hearing. That morning she says she received a phone call from the Guardianship Division's registry. When the hearing commenced, the Presiding Member telephoned her so that she could participate in the hearing by phone. 2. ZAG did not file a statement or affidavit but her solicitor says ZAG told her that she did not receive any written notice of the hearing. 3. The Departmental Manager gave evidence that ZAG was informed of the hearing on Friday 1 May 2015. He filed a statement of service in which he stated that on 1 May 2015 he served the notice of hearing and a copy of the applications for guardianship and financial management on a person who was the Out of Home Care Coordinator in the accommodation where ZAG was living. It was his understanding that that person then forwarded a copy of the notice of hearing and the applications to ZAG by email. The Departmental Manager said he received a telephone call from ZAG on 1 May 2015 during which the scheduled hearing in the Guardianship Division was discussed. 4. The Departmental Manager gave evidence that a case-worker had received a telephone call from ZAG on 1 May 2015 and that the hearing was discussed. He also gave evidence that another case worker made arrangements with ZAG on 1 May 2015 to collect her and her father from a train station and transport them to the hearing the following Monday. 5. At the hearing on 4 May 2015, the Tribunal asked ZAG when she was on the phone, whether she knew why they were having the hearing. ZAG replied, "No, I don't." 6. The statement of service from the Departmental Manager does not clearly set out the manner in which ZAG was served with the notice of hearing or the applications for guardianship and financial management. He did not provide a statement as to how service was effected nor was he asked to give evidence as to that matter at the Appeal Panel hearing. ZAG did not attend the Appeal Panel hearing nor was any statement tendered from her as to whether, and if so when, she was notified of the hearing or served with the applications or other material. 7. Despite its informal nature, the evidence satisfies us that ZAG was given notice of the hearing on Friday 1 November 2015. While ZAG's denied that that was the case, we accept the Departmental Manager's evidence that he personally spoke to ZAG on that day and that the hearing was discussed. He also gave evidence which is less reliable, but nevertheless credible, that two other people spoke to her on that day about the hearing. 8. The Tribunal is required to comply with the rules of procedural fairness which are sometimes called the rules of natural justice: NCAT Act, s 38(2). Those rules require that a person be given a fair hearing before decisions are taken which affect their interests: Re Refugee Tribunal; ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [101]. A fair hearing includes adequate notice of the hearing so that a party may participate fully and effectively. Commentators Aronson and Groves make the point that notice should alert the recipient to the issues which need to be addressed and provide sufficient information to enable adequate participation: Aronson and Groves, Judicial Review of Administrative Action, (5th ed 2013 Lawbook Co) at 518. 9. There is no legislative requirement to serve a notice of a hearing within a certain time frame. Relevant factors were identified by the Federal Court in Ogawa v Minister for Immigration and Citizenship (2011) 199 FCR 51 at 58 and by Aronson and Groves at 521-522. Based on those authorities, the adequacy of the length of the notice period is dependent on factors including: 1. the complexity of any issue of fact or law to be canvassed at the hearing; 2. any previous opportunities given which enable the person to assemble relevant evidence and submissions; 3. the nature of any further material that may need to be obtained; 4. the ability of the person affected to prepare an argument in response to the notice; and 5. any need for urgency. 1. The jurisdiction of the Guardianship Division is a protective one. The principles which must be applied when exercising functions under the Guardianship Act include that "the welfare and interests of such persons should be given paramount consideration": Guardianship Act, s 4. Of particular relevance in these proceedings is ZAG's inability to prepare an argument at short notice in response to an application for guardianship and financial management. The evidence disclosed, and there was no dispute, that ZAG is a vulnerable person having been under the care of the Minister for Family and Community Services until she turned 18 in April 2015. She had not had any previous opportunity to assemble evidence in response to the applications. Two days was a manifestly inadequate time for her to do so. 2. If there was some imminent threat to ZAG's safety or wellbeing or to the safety or well-being of others, a short, or indeed no notice period, may be justified. There was some evidence of urgency in this case. 3. Having filed the applications on 1 April 2015, the Departmental Manager wrote to the Guardianship Division on 16 April seeking a hearing in the week of 27 April 2015. He said he had just become aware that ZAG was about to turn 18 and would be eligible to receive a considerable sum of money that had been held in trust for her. That money was apparently compensation in relation to a sexual assault perpetrated on ZAG by her father. The Departmental Manager said that he was very concerned that if ZAG had access to that money she would be vulnerable to having people with whom she associated access the money with or without her consent. That view was based on ZAG's previous spending behaviour. ZAG submitted that she did not know about the money and had taken no steps to have it paid to her. We accept that evidence. The Departmental Manager conceded that as at the date of the hearing on 4 May 2015, he had not given ZAG a letter from the NSW Trustee and Guardian dated 23 March 2015, advising ZAG that she may be eligible to receive funds held on her behalf. 4. There was also evidence before the Guardianship Division that ZAG had recently been charged in relation to a stolen vehicle and was on bail. At the time of the hearing, police were investigating further allegations that her father had sexually assaulted her in January 2015. 5. While these circumstances justify the applications for guardianship and financial management being dealt with quickly, the threat to ZAG's safety or well-being was not great enough to warrant scheduling a hearing on 2 days' notice. 6. The inadequacy of the notice period persuades us that the decisions to make guardianship and financial management orders should be set aside and the matters remitted to the Guardianship Division to be reconsidered. This is not a case where it can be said that the breach of procedural fairness would have made no difference to the outcome of the case: Stead v State Government Insurance Commission [1986] HCA 54; 161 CLR 141 at 145. If she had adequate notice of the hearing, ZAG may have been able to provide relevant evidence in relation to the issues in the proceedings. That evidence may have led the Tribunal to the conclusion that a guardianship or a financial management order was not justified. 7. The remaining two grounds of appeal relating to breaches of procedural fairness flow from the fact that the notice period was inadequate. Disclosure of issues and materials to be considered 1. ZAG's solicitor told the Appeal Panel that ZAG had told her that she did not receive a copy of the applications or any of the other documents lodged in support of those applications. At the hearing, the Presiding Member asked ZAG whether she had received any of the papers that had been sent to her. When asked whether she had picked up any papers from the Tribunal ZAG replied saying, "No, I haven't." 2. The relevant documents were mailed to ZAG's last known address on 29 April 2015. However, it was a condition of her bail that she not live at that address. In those circumstances we are not satisfied that ZAG received copies of the documents including the applications. 3. A person who might be affected by a finding should be given the opportunity to adduce evidence and make submissions rebutting the potential adverse finding: Mahon v Air New Zealand Ltd [1983] UKPC 29; [1984] AC 808 at 820-821. This common law principle is articulated in s 38(5)(c) of the NCAT Act which requires the Tribunal to " ... take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings." 4. In order to provide evidence and make submissions, a party must be aware of all the "credible, relevant and significant" material that will be considered: Kioa v West (1985) 159 CLR 550 at 628-629. It may be sufficient in some circumstances to inform the party of the "gravamen or substance" of the issue, rather than provide complete copies of all the material: Pilbara Aboriginal Land Council Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at 557. In this case ZAG did not receive the applications for guardianship and financial management or any other documents. During the hearing, the Tribunal made several attempts to obtain ZAG's views in relation to that material but those attempts were insufficient. The material, or at least its substance, should have been disclosed to ZAG prior to the hearing so that she had a reasonable opportunity to respond to it. Duty to self-represented parties to suggest an adjournment 1. ZAG was connected by phone to the hearing but she hung up on occasions and then answered the phone again when the Tribunal telephoned her. 2. ZAG did not request an adjournment of the hearing, nor did the Tribunal suggest that she do so. Giving a party a reasonable opportunity to present his or her case includes offering a self-represented party an adjournment, where appropriate, even if it is not requested: Italiano v Carbone and Ors [2005] NSWCA 177. 3. It follows from our conclusions about the inadequacy of the notice period and the failure to adequately disclose the materials, that the Tribunal should have suggested an adjournment. Orders 1. The time for lodging the appeal is extended to 31 July 2015. 2. Appeal upheld. 3. The orders made by the Guardianship Division on 4 May 2015 are set aside. 4. The matter is remitted to be reconsidered by the Tribunal with further evidence. 5. Order 2 does not come into effect until the Guardianship Division re-determines the application. 1. The reason for Order 5 is that during the course of the Appeal Panel hearing, the Departmental Manager disclosed to ZAG, through her solicitor, for the first time, that she was eligible to receive the money held in trust for her by the NSW Trustee and Guardian. While she has not requested that that money be paid to her, because she was not aware that she was eligible to receive it, she is entitled to do so. If no financial management order remains in force and ZAG makes that application, the NSW Trustee would have no basis for refusing to pay the money to her. Evidence given by the Departmental Manager satisfies us that if ZAG had access to that money others may obtain access to it either with or without her consent. ********** 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 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: 21 January 2016