Civil and Administrative Tribunal New South Wales Medium Neutral Citation: ZDV v ZDW [2017] NSWCATAP 68 Hearing dates: 16 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Appeal Panel Before: Hennessy LCM, Deputy President Decision: The application for a stay is refused. The matter is listed for mediation on 10 March 2017 at 10 am at a venue to be advised. The matter is listed for call-over at 9.30 am on 14 March 2017. Catchwords: STAY – where 30 day guardianship order appointing the Public Guardian made – subject person in hospital - daughter of subject person sought stay of decision so subject person could return to usual place of residence – utility of appeal when order made on temporary basis – referral to mediation Legislation Cited: Guardianship Act 1987 (NSW), s 3, s 4 Civil and Administrative Tribunal Act 2013 (NSW), s 43 Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Procedural and other rulings Parties: ZDV (Appellant) ZDW (1st Respondent) ZDX (2nd Respondent) NSW Trustee and Guardian (3rd Respondent) The Public Guardian (4th Respondent) ZDY (5th Respondent) ZDZ (6th Respondent) ZEA (7th Respondent) ZEB (8th Respondent) ZEC (9th Respondent) ZED (10th Respondent) ZEE (11th Respondent) Representation: Appellant (self-represented) M O'Kane (separate representative for 2nd Respondent) File Number(s): AP 17/07019 Publication restriction: Nil Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Guardianship Division Date of Decision: 10 February 2017 Before: Ms Susan Roberts, Senior Member (Legal)Dr Sally McSwiggan, Senior Member (Professional)Prof Philip Foreman, General Member (Community) File Number(s): 64259 ex tempore decision 1. DEPUTY PRESIDENT HENNESSY: On 10 February 2017 the Guardianship Division made a 30 day guardianship order appointing the Public Guardian as ZDX's guardian with a function of deciding where she should live. The function also included a coercive power to authorise others including New South Wales Police and the Ambulance Service to take ZDX to a place approved by the Public Guardian, to keep her in that place and to return her to that place should she leave it. 2. One of ZDX's daughter, ZDV, has appealed from this decision and applied for a stay of the decision pending further order of the Tribunal. The effect of a stay would be that ZDX could make her own decision about where she should live for the next 28 days. 3. The Guardianship Division convened an urgent hearing on the basis of an email dated 9 February 2017 from a medical practitioner. The email was sent in circumstances where ZDX was an in-patient at a hospital and where she had expressed a view that she wanted to be discharged and go back to her own home. 4. The Tribunal made a temporary guardianship order the following day but written reasons have not been provided as of today. I understand from the material before me, and from what I have heard today, that ZDX's adult children have a difference of opinion about where their mother should be discharged to from the hospital and where she should live in the longer term. I joined ZEC as a respondent to the proceedings as there was no objection to that course and it appears that she was a statutory party in any event being a carer of ZDX. 5. The power to grant a stay is conferred by s 43 of the Civil and Administrative Tribunal Act 2013 (NSW). That provision states in part that: "A pending appeal does not affect the operation of the decision to which the appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending appeal relates as it considers appropriate to secure the effectiveness of the determination of the application or appeal." 1. The Civil and Administrative Tribunal Act does not specify the factors to be taken into account in determining whether the discretionary power to stay the operation of a decision should be exercised. 2. In the case of Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 the President of the Tribunal, Justice Wright, summarised the principles at [9]. I will not repeat those principles in full but in a general sense the President noted that a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of the discretion. 3. The rule is that the applicant, or appellant in this case, has the onus of satisfying the Tribunal that it is appropriate to make an order. The mere lodgement of the notice of appeal is insufficient to stay the decision. An order staying the operation of a decision would generally be appropriate where it is reasonable to secure the effectiveness of the appeal. This is similar to the considerations applied by courts where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted or where unless a stay is granted an appeal will be rendered nugatory. 4. In those circumstances the discretion should generally be in favour of granting a stay. The Tribunal may also take into account the strength or otherwise of the case put by the party, and weigh the balance of convenience and the competing rights of the parties. 5. The decision in this case is affected very significantly by the fact that it is made under the Guardianship Act 1987 (NSW). Section 4 of that Act sets out the general principles, including the principle that it is the duty of everyone exercising functions under the Act, with respect to persons who have disabilities, to observe certain principles. The first principle is that the welfare and interest of such person should be given paramount consideration. That is the touchstone in this case. ZDX's welfare and interests are paramount. 6. The notion of a successful party being entitled to the benefit of a favourable decision is not as relevant in guardianship proceedings as it is in adversarial proceedings. As I have said, the principle that the welfare and interests of the subject person should be given paramount consideration means that the focus must be on ZDX's best interests. The central question for the Guardianship Division was whether ZDX was a person in need of a guardian as defined in s 3 of the Guardianship Act. I am not in a position today to assess the evidence that was before the Guardianship Division last Friday, to make a decision on the merits as to whether ZDX is a person in need of a guardian. I have not reviewed the expert evidence on that point, nor is it appropriate that I do so. 7. The difficulty with a stay application in the present proceedings is that it would necessitate a review of the merits of the guardianship decision. That is because I cannot determine what is in ZDX's best interests without making my own assessment of whether or not she is indeed a person in need of a guardian. There is nothing on the face of the Tribunal's order which suggests that an appeal is likely to succeed. I have heard the evidence and the submissions today that procedural fairness was not afforded, and I understand those submissions. Nevertheless, I am mindful of the fact that the application was made on an urgent basis on 15 February 2017 and determined the following day. In those circumstances there is authority for the proposition that urgency will modify the need for procedural fairness. Whether or not in this case those principles should have been modified to the extent that they were is something that only the Appeal Panel can determine on the substantive hearing of this matter. 8. I have suggested to the parties today that a mediation may be an appropriate course, and each of the parties has agreed with a caveat on the part of ZEC about the binding nature or otherwise of such a mediation, given doubts about ZDX's capacity. I am confident that a mediation can take place within those parameters by a mediator appointed by the Tribunal. However, I have pointed out that this is not a matter where the parties are free to resolve the matter between themselves, except in relation to the appeal which could be withdrawn without the consent of the Tribunal. However, there are other applications before the Guardianship Division involving the same parties that have not yet proceeded to hearing or have not been finally determined. If they were to be resolved that would require the consent of a three-member panel of the Guardianship Division. 9. What I propose to do is set a date for mediation and then a date for the matter to be returned to the Appeal Panel Directions List if mediation is unsuccessful. ********** 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: 30 March 2017