ADK v NSW Trustee and Guardian

[2011] NSWADTAP 60

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ADK v NSW Trustee and Guardian [2011] NSWADTAP 60

Hearing dates:

30 September 2011

Decision date:

16 December 2011

Jurisdiction:

Appeal Panel - External

Before:

Magistrate N Hennessy, Deputy President
Mr J Millar, Judicial Member
Dr B Field, Non-Judicial Member

Decision:

1. The decision of the Guardianship Tribunal made on 28 March 2011 in relation to ADM is set aside.

2. The whole matter is remitted to be heard and decided again with the hearing of further evidence if necessary.

3. These orders take effect on the date on which the Guardianship Tribunal determines the matter again.

Catchwords:

APPEAL - procedural fairness - adequate notice of hearing - confidential evidence - disclosure of medical reports - adequacy of reasons - findings of fact on material issues

Legislation Cited:

Guardianship Act 1987
Administrative Decisions Tribunal Act 1997
Evidence Act 1995

Cases Cited:

Barghouthi v Transfield Pty Ltd [2002] FCA 666
XYZ v State Trustees Limited [2006] VSC 444
Pilbara Aboriginal Land Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539
KA v Public Guardian [2004] NSWADTAP 25
KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; [1986] HCA 7 (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311
Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992
Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88
Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502
J v Lieschke (1987) 69 ALR 647
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41) Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Pettitt v Dunkley [1971] 1 NSWLR 376 Public Service Board of New South Wales v Osmond [1986] HCA 7; [1986] HCA 7; (1986) 159 CLR 656
Absolon v NSW TAFE [1999] NSWCA 311 Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 Nominal Defendant v Kostic [2007] NSWCA 14
Nikolovski v Telstra Corp Ltd [2002] FCA 846
Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430
Re B (No. 1) [2011] NSWSC 1075
Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57
Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247
Re Pergamon Press Ltd [1971] Ch 388 Ansell v Wells (1982) 43 ALR 41

Texts Cited:

Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th, Lawbook Co 2009

Category:

Principal judgment

Parties:

ADK (Appellant)
AEJ (2nd Appellant)
NSW Trustee and Guardian (1st Respondent)
ADL (2nd Respondent)
ADM (3rd Respondent)
Guardianship Tribunal (Decision Maker)
Crown Solicitor

Representation:

ADK (Appellant - in person)
AEJ (2nd Appellant - in person)
James McCaffrey & Associates (ADM -Linda Fisher GAL)
Crown Solicitor's Office (Crown Solicitor)

File Number(s):

118005

 Decision under appeal 

Citation:

2011/965

Date of Decision:

2011-03-28 00:00:00

File Number(s):

C/46858

REASONS FOR DECISION

Introduction

1. ADK has appealed against a decision of the Guardianship Tribunal appointing the Public Guardian as his mother's guardian. ADK and his mother, ADM, had lived together from 1998 until 6 February 2011 when ADM was admitted to Westmead Hospital. About a week after her admission a social worker at the hospital applied to the Guardianship Tribunal for a guardianship order. The following day, the social worker formally requested that the application be withdrawn. The Tribunal did not consent to the withdrawal of the application and the matter was listed for hearing on 28 March 2011.

1. The Guardianship Tribunal made a guardianship order and gave the Public Guardian the functions of determining where ADM should live, the health care she should receive and the services with which she should be provided. ADM is currently living in an aged care facility. ADK wants his mother to live with him at home.

1. After we heard the appeal, but before handing down a decision, the Guardianship Tribunal received an application from the Public Guardian for a variation of the guardianship order. The Guardianship Tribunal heard that application on 18 October 2011. The Tribunal decided to vary the guardianship order by adding a function of determining who should have access to ADM. The Tribunal has adjourned a second application for review of the guardianship order made by ADM's daughter, AEJ, until 19 December 2011.

1. Even though the decision of the Guardianship Tribunal which ADK has appealed against will be reviewed on 19 December, we consider it appropriate to determine this appeal. ADK has a right to appeal on "any question of law" but must obtain the Tribunal's permission ('leave') before appealing on other grounds including the merits of the Guardianship Tribunal's decision: Administrative Decisions Tribunal Act 1997 ( ADT Act ), s 118B(1).

Parties and representation

1. The appellant, ADK, represented himself. ADM was not capable of participating in the hearing and the Tribunal appointed a guardian ad litem (GAL) to represent her: ADT Act , s 71(4). The GAL instructed Ms Kaiti, solicitor and then Mr McCaffrey, solicitor, to represent her. ADM's daughter, AEJ, was joined as a second appellant and represented herself: ADT Act , s 67(2A)(b). She had not been notified of the Guardianship Tribunal proceedings and was not a party to those proceedings. The Guardianship Tribunal said that it was available to make submissions in relation to its practices and procedures but otherwise did not participate in the proceedings.

1. The NSW Trustee and Guardian chose not to play any role in the proceedings. Because the social worker who made the application to the Guardianship Tribunal chose not to participate in the appeal, there was no contradictor. We appointed the Crown Solicitor to make relevant submissions: ADT Act , s 67(4). Ms Shirm undertook that role.

Background

1. Prior to her admission to Westmead Hospital, ADM and her son had been living together in accommodation provided by Housing NSW. On admission to hospital, ADM came under the care of Dr Loh, a staff specialist in the Geriatric Medicine Department. Dr Loh wrote a detailed report dated 14 March 2011. He recorded that, on admission, ADM had told a nurse that she did not want to be with her son and that she did not want her son to be allowed into the Emergency Department because he had physically assaulted her. During various consultations with Dr Loh ADM disclosed, in what was said to be a "matter of fact" manner, that her son had physically assaulted her. She mentioned an old injury to her thumb. While Dr Loh could find no evidence of recent injury, ADM volunteered that her son had lost his temper and she did not wish to return to live with him. A friend of ADM corroborated ADM's accounts of "ongoing domestic violence."

1. Dr Loh contacted ADM's general practitioner, Dr Malouf. Dr Malouf had concerns for ADM's safety while she was in the care of her son. Dr Loh referred ADM to a clinical neuro psychologist, Ms Harvey, for assessment of her cognitive capacity. Ms Harvey wrote a report dated 4 March 2011 which concluded that she suspected vascular cognitive impairment to be the most likely cause of ADM's "marked problems with higher-order thinking, particularly deficient reasoning skills." Dr Loh had earlier ruled out any evidence of delirium which would account for her confusion and was of the opinion that ADM had vascular dementia and Alzheimer's dementia.

1. Dr Loh contacted ADK on 10 February 2011 and wrote in his report that ADK was initially agreeable to his mother being placed in a nursing home. However, when he spoke to ADM the following day, he says that she was abusive and aggressive and was refusing to go into a nursing home. ADM repeated that view to Dr Loh a few days later. Dr Loh suspected that ADK may have spoken to his mother and attempted to persuade her not to agree to move to a nursing home. Dr Loh says in his report that nursing staff told him that ADK had had also been behaving aggressively and abusing staff. It was about this time that a social worker at the hospital applied to the Guardianship Tribunal for a guardianship order. Dr Loh says that ADK became increasingly agitated given the impending hearing and the possibility that his mother would not be returning to live with him.

1. The reasons Dr Loh gave for deciding to withdraw the application for guardianship were the distress it was causing both ADM and her son. He added that:

I had some concerns that if this situation was to remain in its high tensile state, that this would have further implication for [ADM's] well-being and [ADM] was making it quite clear to me in the second week that there was a degree of emotional interdependence of which I had not previously been aware and that this obviously should influence our future planning on her behalf.

It was discussed with my colleagues from social work that if we were to take a more accommodating approach, that perhaps some rapport could be established with [name deleted] the social worker from ACAT who previously was known to the patient and with whom [ADK] seemed to have a constructive and worthwhile relationship.

1. An application to the Tribunal cannot be withdrawn except with the consent of the Tribunal: Guardianship Act , s 64A. The Tribunal did not consent to the withdrawal. That decision is not appellable to the Appeal Panel of the ADT: Guardianship Act , s 67A.

Grounds of Appeal

Introduction

1. ADK is not a lawyer and did not identify, in his lengthy written submissions, a question of law for consideration by the Appeal Panel. Similarly his sister, AEJ, gave lengthy submissions but is not legally trained. As no transcript of the Guardianship Tribunal proceedings was available, we obtained a copy of the tape recording and listened to it prior to the hearing. During the hearing, we raised some issues relating to the conduct of the proceedings and, in particular, whether ADK had been given a reasonable opportunity to respond to evidence which was adverse to him. The Appeal Panel has a duty to identify a potential error of law even if a self-represented appellant is not able to do so: Barghouthi v Transfield Pty Ltd [2002] FCA 666; XYZ v State Trustees Limited [2006] VSC 444 at [434].

1. We identified the following potential errors at the hearing and invited the parties to make further written submissions on those questions after listening to the tape recording of the Guardianship Tribunal proceedings:

(1)   Failing to provide ADK with adequate notice of the hearing;

(2)   Failing to provide ADK with an adequate opportunity to respond to adverse material in circumstances where the Tribunal:

(a)   did not provide ADK with a copy of the medical report from Dr Loh or of the report prepared by the applicant social worker;

(b)   heard Dr Malouf's evidence in private;

(c)   conveyed the substance of Dr Malouf's allegations but did not give ADK an adequate opportunity to respond to those allegations.

(3)   Failed to give adequate reasons for its decision.

Procedural fairness principles

1. There is no express requirement in the Guardianship Act that the Tribunal comply with the rules of procedural fairness. Despite the absence of a statutory obligation to that effect, the Tribunal has a common law duty to afford procedural fairness to the parties. That means that persons be given a fair and unbiased hearing before decisions are taken which affect their rights or interests. Two fundamental requirements of fairness are notice of the hearing and an opportunity to be heard before a decision is made: Aronson, Dyer and Groves, Judicial Review of Administrative Action , 4th, Lawbook Co 2009 at 557.

1. The precise content of the rules of procedural fairness depends on the statutory framework, the nature of the jurisdiction and relevant case law. The Guardianship Tribunal's jurisdiction is protective - the welfare and interests of the subject person are to be given paramount consideration: Guardianship Act , s 4. Nevertheless, other parties whose interests are affected must also be afforded procedural fairness. A person, such as ADK, who has been caring for his mother for over ten years and has been helping her make decisions about her everyday life such as what health and other services she should receive, is adversely affected by a decision to appoint someone else to make substitute decisions for her. The removal of a right or privilege may "reflect poorly on the applicant's conduct, character or professional reputation.": Pilbara Aboriginal Land Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs (2000) 103 FCR 539 at [46]. If, prior to an application for the appointment of a guardian, a person is the privileged position of making decisions on behalf of the subject person, that person's interests will be affected by removing that privilege: KA v Public Guardian [2004] NSWADTAP 25.

1. The content of the rules of procedural fairness increases in proportion to the seriousness of the consequences involved. The consequences of a decision of the Guardianship Tribunal to appoint the Public Guardian to make decisions for ADM are not nearly as serious for ADK as they are for his mother. Nevertheless, ADK's credibility, self-esteem and reputation will be affected by a decision to take away a privilege that he has previously enjoyed.

1. If a document contains information which is credible, relevant or significant to a decision, that document, or at least the substance of it, should be disclosed to the relevant person. In KV v Protective & Ors; KW & Ors v KV & Ors (No.2) [2004] NSWADTAP 48 at [27], the Appeal Panel stated that procedural fairness will sometimes require that access be given to the entire document:

...However, as was the case in Ansell v Wells , there are times when a party will need to respond to a document and cannot realistically do so unless they have access to a copy of the whole document. As Blackwood notes, (supra at 128) "Normally that opportunity is given to the person by providing him or her with a copy of the document that contains the adverse information ." Unless there is a persuasive reason for not disclosing a medical report, a copy of the whole report should be disclosed if the content is disputed.

1. If the document is to be provided, a reasonable time must be given for a party to inspect and make comments on the document: Moore v Guardianship and Administration Board [1990] VR 902.

Notice of hearing

1. The purpose of providing adequate notice of a hearing is so that a person whose interests may be affected by the hearing can participate effectively. That means giving the person enough time to gather any relevant evidence and prepare submissions.

1. ADK received the application for a guardianship order on 15 February 2011 but he was not given notice that the hearing was scheduled for 28 March 2011 until 25 March. While there was no evidence as to when the Guardianship Tribunal allocated the hearing date, it is apparent from a report of the Tribunal's Case Officer dated 21 March 2011, that the hearing date had been allocated by that time. ADK received notice four days later. There is no reference in the Tribunal's reasons for decision to any particular urgency, although it is apparent from Dr Loh's report that a decision needed to be made quickly as to whether ADM would be placed in an aged care facility or be discharged back home.

1. When ADK attended the Guardianship Tribunal hearing, he says he had not been given a copy of Dr Loh's report or the report from the social worker who had made the application. While the Case Officer's report records that Ms Harvey's report had been released to all parties, ADK also denies having received that report before the hearing. Despite his denials, ADK admits receiving two letters before the hearing. He says, towards the beginning of the hearing words to the effect of:

A woman from registry rang to say she was going to send letters. One turned up on Tuesday, one on Wednesday. I've highlighted things. I've gone through all these papers. When things are blatantly wrong, do I get a chance to explain things to you?

1. The legal member replied saying, "Yes, it's important that you do get that opportunity."

1. While we have no direct evidence as to what these "letters" were we are satisfied that one was Ms Harvey's report. We think it more likely, given the Tribunal's records, that ADK was sent a copy of that report and that he now does not recall that he received it. The second document may have been the case officer's report to the Guardianship Tribunal. We are not satisfied that ADK received a copy of Dr Loh's report or the report from the social worker prior to or at the hearing.

1. Whether or not the period of three days notice was adequate depends on factors such as the complexity of the issues, the material to be considered and any need for urgency: Bakewell v MacPherson (unreported, SA Supreme Court (Full Ct), 25 September 1992, at 21-22.) In this case, the factual issues were not particularly complex. The main issue was whether or not it was in ADM's best interests for her son to continue to make the decision about where she should live, or whether another person should make that decision. The issue depended, to a significant extent, on whether the Tribunal accepted the allegations of abuse and manipulation that had been made against ADK. It also depended, to a lesser extent, on whether despite some risk of abuse, it was nevertheless in ADM's best interests given the emotional interdependence of her relationship with her son, that he continue to make decisions for her. The hearing was urgent because a decision needed to be made about where ADM was to live.

1. In our view, given the urgency of the situation, the period of three days notice was reasonable if ADK had been given copies of all the relevant reports and had been aware of the allegations that were being made against him. The short notice period, by itself, does not amount to a breach of the rules of procedural fairness.

Confidential documents

1. While neither Dr Loh's report, nor the report from the social worker, were before the parties at the hearing, the Tribunal made some reference to the content of Dr Loh's report. For example, the Tribunal noted that Dr Loh's report expressed concerns about ADM's lack of capacity and the emotional interdependence between ADM and ADK. It was said that that interdependence may affect ADM's decision making capacity. However no reference was made during the hearing to Dr Loh's allegations of ADK behaving in an abusive, manipulative and aggressive manner towards ADM.

1. The social worker gave evidence by phone at the hearing, but the substance of her report was not put to ADK. The Guardianship Tribunal had received the report on the day of the hearing. It made several allegations in relation to ADK, including that ADM was "physically and verbally abused by her son . . on the morning of her admission", that ACAT social workers have responded to allegations of abuse made by ADM against her son but that ADM has declined to act and has decided to stay at home with the support of her son.

1. The Tribunal refers to the social worker's oral evidence in its reasons for decision but not to the content of the report which is marked "confidential". Nevertheless, we are satisfied that the Tribunal did consider it. In Applicant VEAL of 2002 v Minister for Immigration and Multicultural Affairs (2005) 225 CLR 88, the High Court found that a failure by the Refugee Review Tribunal (RRT) to comply with its general law obligation to draw "credible relevant and significant" information to the attention of the relevant person invalidated the RRT's decision even though the decision claimed that it attached no weight to the information. By failing to bring at least the substance of the allegations in the social worker's report to ADK's attention, the Tribunal has breached the rules of procedural fairness.

1. ADK did not know the case he had to meet because he did not receive a copy of the report from Dr Loh or the social worker before the hearing. Nor did the Tribunal convey the substance of all the adverse allegations in those report. It follows that he did not have an adequate opportunity to respond to most of the credible, relevant and significant information the reports contained.

Confidential evidence

1. The tape recording reveals that the Tribunal members telephoned ADM's general practitioner, Dr Malouf, and asked him if he would prefer to give his evidence privately. He responded with words to the effect of:

It might be better - I'm not sure what you want to ask me but if it involves [ADK] he may not want to hear what I've got to say.

1. After hearing from Dr Malouf in private, the Tribunal reconvened and told the parties that they had telephoned him during the break. The legal member said that it was the Tribunal's duty to summarise the evidence even though that evidence might upset ADK. The evidence was summarised in the following terms. Unsolicited comments made by ADK, as an aside, have been included in brackets.

ADM cares a lot about ADK and that ADK has done a great job caring for her;

ADM does not say what she is really thinking because she does not want to upset ADK but most of the time she can make up her mind about things;

ADM might be a bit afraid of ADK;

Dr Malouf has seen evidence on ADM's body from time to time, nothing serious, indicating that ADM has been pushed over or scratched, for example finger nail marks on her hand; (ADK: - "I know what he's talking about there.")

ADM told Dr Malouf that on one occasion ADK had tried to choke her but he had not seen any evidence of that; (ADK: "Mmm")

Dr Malouf has seen ADK become verbally aggressive with ADM on occasions (ADK: "Oh when we've had an argument?")

1. In relation to one allegation, the Presiding member said that it may or may not be true. Without prompting, ADM then said, "It is true." ADK's response was, "Up to a point." The legal member added that Dr Malouf was worried about whether ADK was capable of continuing to care for ADM because when he spoke to her by herself she expressed a very strong desire to be in supported accommodation. The Tribunal Member then said, "Did you want to say something quickly [ADK]? ADK then made a comment about the effect on his mother of the B12 injections.

1. Pursuant to s 56 of the Guardianship Act :

Proceedings before the Tribunal shall be open to the public unless the Tribunal, in any particular case, determines that the proceedings shall be conducted wholly or partly in the absence of the public.

1. In addition, the Tribunal "is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks fit": s 55(1). Neither of these provisions expressly gives the Tribunal power to hear evidence in the absence of the other parties to the proceedings. Despite the fact that the Guardianship Tribunal's jurisdiction is essentially protective, there is no express power in the Act allowing the Tribunal to withhold any part of the evidence from one party in contested proceedings. Courts have inherent jurisdiction to admit evidence and yet withhold it from an affected party: Nicopoulos v Commissioner for Corrective Services 2004 NSWSC 502 at [88]. In that case Smart J noted at [71] that "It is a particularly serious step for a Court to consider material not made available to one of the parties in the proceedings before it." Although it is not beyond doubt, we find that because the Tribunal is not bound by the rules of evidence, it has power to admit evidence but rule that that evidence not be disclosed to a particular party or parties. That power is necessary because of the protective nature of the jurisdiction: J v Lieschke (1987) 69 ALR 647 Brennan J at 653.) Even so, as with courts, it is a serious matter for the Tribunal to accept secret evidence from a party or a witness.

1. Adverse information may be withheld from the person affected where there is a compelling need for confidentiality, secrecy or speed in the making of a decision: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57 at 100 per McHugh J, at 116 per Kirby J. The Tribunal did not disclose its reasons for taking Dr Malouf's evidence in the absence of the other parties. The only indication as to why that was thought necessary is Dr Malouf's comment that ADK may not want to hear what he had to say. With respect to the Tribunal, that is not a sufficient reason to deny ADK and ADM's representative, the opportunity to hear Dr Malouf's evidence first hand. The critical factual issue in this case was whether or not it was safe for ADM to return home and continue living with her son. ADK was entitled to know, from Dr Malouf directly, what was alleged against him. It was not sufficient merely to convey the substance of that evidence to ADK: Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] Ch 388; Ansell v Wells (1982) 43 ALR 41.

1. While the Tribunal disclosed most of Dr Malouf's evidence to ADK and the other parties, it did not disclose that ADM had told him that she preferred to live in a nursing home or the concerns he had in relation to ADK spending ADM's money. ADK and ADM's representative should have been given the opportunity to hear and deal with that evidence first hand.

1. More significantly, the Tribunal was obliged to give ADK a reasonable opportunity to respond to each of Dr Malouf's allegations. It was not sufficient for the Tribunal to relay those allegations and then to ask him if he had something to say. To comply with the rules of procedural fairness, ADK needed to be asked to respond to each allegation. In such circumstances, even though the Tribunal is not bound by the rules of evidence, the legal member should consider whether it is appropriate to advise such a person of the right to privilege in respect of self-incrimination: Evidence Act 1995, s 128.

Adequacy of reasons

1. Subject to some exceptions which are not applicable to these proceedings, the Guardianship Tribunal has a duty to provide each party with "formal written reasons" for its decisions: Guardianship Act , s 68(1B). However, no decision of the Tribunal will be invalid because of any informality or want of form: s 68(2). Some tribunals, including the Administrative Decisions Tribunal, are bound in their reasons for decision to set out "the findings on material questions of fact, referring to the evidence or other material on which those findings were based": ADT Act , s 89(5)(a). There is no equivalent provision in the Guardianship Act but at common law there is a judicial duty to give adequate reasons: Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269-70; Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond [1986] HCA 7; [1986] HCA 7; (1986) 159 CLR 656. That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66].

1. A trier of fact is required to determine whether an asserted fact, such as whether ADK had physically or verbally abused or assaulted ADM or behaved in an intimidating or aggressive manner towards her is 'true': Jegatheeswaran v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 263 at 274. It has been held in numerous cases that making findings on material questions of fact is essential if reasons are to be adequate: Nominal Defendant v Kostic [2007] NSWCA 14; Nikolovski v Telstra Corp Ltd [2002] FCA 846. In Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 Meagher JA set out three fundamental elements of a statement of reasons:

First, a judge should refer to relevant evidence.

Secondly, a judge should set out any material findings of fact and any conclusions or ultimate findings of fact reached.

Thirdly, a judge should provide reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found.

1. The Court of Appeal reiterated these principles in Alchin v Daley [2009] NSWCA 418. Sackville AJA (with whom McColl and Young JJA agreed) noted, among other things, that:

The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute. (citations omitted)

1. The fact that the Guardianship Tribunal conducts its procedures informally and is not bound by the rules of evidence, does not absolve it from its duty to make relevant findings of fact. The questions the Tribunal said it had to determine were:

Is ADM some one at the Tribunal would make an order because she has a disability which prevents her from being able to make important life decisions?

Should the Tribunal make guardianship order and if so, what order should we may?

Who should be the guardian?

How long should the order last?

1. In relation to the first question the Tribunal reviewed the medical evidence as to ADM's capacity and was satisfied that she has mild dementia which affects her executive functioning. In our view, the reasoning on this element of the Tribunal's decision was adequate.

1. The second question, whether a guardianship order should be made, involved the Tribunal applying s 14(2) of the Act. That provision states that:

(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. With respect, the Tribunal's reasoning in relation to the question of whether a guardianship order should be made were not adequate for three reasons. They do not address the factors set out in s 14(2), they do not include findings of fact on material questions and they do not address and weigh up the reasons Dr Loh gave for withdrawing the application.

1. Rather than considering the factors in s 14(2) the Tribunal went straight to a consideration of the functions that a guardian should have. The Tribunal did not consider the question of whether a guardianship order should be made at all. Rather, it assumed that there was a need for a guardian to make certain decisions and went on to address the questions of what functions the guardian should have. Secondly, the Tribunal failed to make relevant findings of fact including whether or not the appellant had physically or emotionally abused his mother and, if so, whether that abuse was likely to continue in the future. Applying s 14(2)(d), there was no need for a guardianship order if ADK could organise and provide services for his mother. No finding was made about that issue. Finally, having initially come to the view that a guardianship order was appropriate, Dr Loh subsequently changed his mind. The reasons for that change of mind were relevant to the question of whether a guardianship order should be made but were not mentioned.

1. Next, the Tribunal turned to the question of who should be appointed as the guardian, noting that the Tribunal has to be satisfied, pursuant to s 17, that any person appointed as a private guardian has:

a personality generally compatible with the personality of the person under guardianship;

no undue conflict of interest with the person under guardianship

be able and willing to exercise the functions imposed by the order.

1. The Tribunal's reasoning was as follows:

ADK gave evidence that although he objected to the appointment of the Guardian, if one were to be appointed, that he should be the preferred candidate.

The separate representative wished the Tribunal to record his respect and admiration for ADK, who has cared for his mother for a long time. However, he suggested that there were issues of objectivity which may indicate that it would be in ADM's best interests to the decision maker not to be a family member. It was submitted by everyone, with the exception of ADK and ADM that the Public Guardian should be appointed.

ADM herself gave evidence that she is a bit afraid of her son and it affects her decision-making capacity. With that in mind, the Tribunal is of the view that it would be in ADM's best interests to appoint the Public guardian.

1. The Tribunal did not make a finding about the matters set out in s 17. The Tribunal merely referred to issues of objectivity and to ADM's evidence that she was a "bit afraid" of her son. The Tribunal formed an adverse view of ADK's suitability to make substitute decisions for his mother without making any relevant findings or giving reasons. Nor did the Tribunal refer to a second applicable principle, namely that the Public Guardian should not be appointed in circumstances in which some other person can be appointed: s 15(3): Re B (No. 1) [2011] NSWSC 1075 (15 September 2011) at [66]. No finding was made that ADK could not be appointed.

Leave to appeal against the merits of the Tribunal's decision

1. As we have decided to set aside the Guardianship Tribunal's decision and remit the matter to be heard and decided again, with the hearing of further evidence if necessary, there is no need to extend the appeal to the merits of the Tribunal's decision.

Conclusion

1. The Guardianship Tribunal breached procedural fairness by failing to provide ADK with an adequate opportunity to respond to adverse material. In particular, the Tribunal did not provide ADK with a copy of a medical report and a report from a social worker each of which contained allegations that ADK had abused and manipulated his mother. In addition, the Tribunal heard evidence from Dr Malouf in secret and while the majority of the allegations he made were conveyed to ADK, he was not given an adequate opportunity to respond to those allegations.

1. The Tribunal's reasons were inadequate because it did not refer to or apply various legal principles including the relevant factors to be taken into account when deciding whether to make a guardianship order. The Tribunal also failed to refer to or apply the principle that the Public Guardian should not be appointed if another person could be appointed. Finally the Tribunal failed to make critical findings of fact as to whether ADK had abused or manipulated his mother and, if so, whether he was likely to continue to do so if they were to live together.

Orders

1. The decision of the Guardianship Tribunal made on 28 March 2011 in relation to ADM is set aside.

2. The whole matter is remitted to be heard and decided again with the hearing of further evidence if necessary.

3. These orders take effect on the date on which the Guardianship Tribunal determines the matter again.

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Decision last updated: 19 December 2011