AFX v NSW Trustee and Guardian

[2012] NSWADTAP 4

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AFX v NSW Trustee and Guardian [2012] NSWADTAP 4
Hearing dates:	27 January 2012
Decision date:	06 February 2012
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President J Millar, Judicial Member Dr B Field, Non-Judicial Member
Decision:	The appeal is dismissed.
Catchwords:	EXTERNAL APPEAL - decision of Guardianship Tribunal to appoint NSW Trustee and Guardian as AFX's financial manager - no question of law identified - appeal dismissed
Legislation Cited:	Guardianship Act 1987 Administrative Decisions Tribunal Act 1997
Category:	Principal judgment
Parties:	AFX (Appellant) NSW Trustee and Guardian (First Respondent) AGJ (Second Respondent) Guardianship Tribunal (Decision maker)
Representation:	Counsel L Karp (Second Respondent) AFX (Appellant in person) Family and Community Services Housing NSW (Second Respondent)
File Number(s):	118009
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal	Citation: Unreported Date of Decision: 2011-09-27 00:00:00 Before: Mr J Currie Ms R Rayner Ms J Koussa File Number(s): C/48415; 2011/6776

REASONS FOR DECISION

Introduction

1. AFX has appealed against a decision of the Guardianship Tribunal to make a financial management order and to appoint the NSW Trustee as the manager of his estate. He has the right to appeal on a question of law but must obtain leave before appealing on any other ground: Administrative Decisions Tribunal Act , s 118B(1).

1. AFX appeared in person. The second respondent, AGJ is a Senior Client Services Officer with Housing NSW. He was the applicant for a financial manager order before the Guardianship Tribunal and was represented in the appeal by counsel. Neither the NSW Trustee and Guardian or the Guardianship Tribunal appeared at the hearing.

Background

1. AFX lives in Housing NSW accommodation. He receives a disability support pension from Centrelink. He uses a wheel chair because of paraplegia and has a hearing impairment. AFX has been in dispute with Housing NSW for some time in relation to his accommodation. As at the date of the Guardianship Tribunal hearing in September 2011, he had not paid rent since 8 June 2010. Housing NSW applied to the Consumer Trader and Tenancy Tribunal (CTTT) for an order for vacant possession. The CTTT ordered that AFX move out of his accommodation by 1 September 2011. He did not vacate the premises.

1. On 27 September 2011, the Guardianship Tribunal heard an application for a financial management order from the second respondent, AGJ. AFX was due to be evicted from his home the day after the Guardianship Tribunal hearing. The Guardianship Tribunal concluded that because of AFX's lack of insight into the consequences of his actions, he was not capable of managing his financial affairs. It also concluded that there was a need for another person to manage those affairs and that it was in AFX's best interest for an order to be made. AFX did not attend the Guardianship Tribunal hearing but his separate representative did attend.

Preliminary issues

1. Before responding to AFX's grounds of appeal we will address some preliminary issues which arose during the hearing. The first was that AFX had requested an "interpreter" to type out what was said during the hearing on a computer screen in Spanish so AFX could read it. The "interpreter" was also required to read out documents that are written in English as AFX says that he is illiterate. The reason for making such a request was that he could not write or read English and a hearing loop cannot be used because of his profound hearing loss.

1. AFX is easily able to understand and speak English. He can hear what is being said in the hearing room when he uses a hearing loop. We appreciate that the Tribunal is to take such measures as are reasonably practicable to ensure that AFX understands the proceedings and can participate in the proceedings: ADT Act , s 73(4).

1. In response to AFX's request for an "interpreter" to type out what was said at the hearing, the Tribunal wrote to him on 26 October 2011 saying that:

The measures that are reasonably practicable for us to take are to provide you with:

1. a hearing loop;

2. a sign interpreter;

3. a Spanish interpreter if you do not understand and speak English sufficiently to understand and reply to questions.

I note that you have previously indicated that you do not need a sign interpreter. I also note that you use hearing aids and that as long as you can hear what is being said, you can understand English and speak English sufficiently to participate in the hearing.

It is not reasonably practicable to provide you with a translator to type out what is being said during the hearing on a computer screen from English to Spanish.

Because the hearing is an oral hearing where you speak and are spoken to, we will not provide a translator to read documents that are written in English. You will not be required to read any documents during the hearing. A hearing loop will be available in the hearing room.

1. The second preliminary issue which AFX raised was that Mr Karp, counsel representing the second respondent AGJ, had not advised him of his intention to appear. The Tribunal received a notice of representation from Ms Eccelston, a solicitor employed by Family and Community Services. Every party has a right to legal representation and there is no obligation to disclose to the other parties prior to the hearing who that legal representative is going to be: ADT Act , s 71(1)(b).

1. The final preliminary issue we wish to raise is AFX's conduct during the hearing. He behaved in a rude and threatening manner, at one stage saying that, "There will be bloody violence this year." We told AFX that it was not acceptable to abuse or threaten members of the Tribunal and adjourned briefly so he could compose himself. When we resumed AFX had removed the hearing loop and declined to make eye-contact with the Members of the Tribunal. Later, he inserted a hearing aid in his right ear. He eventually responded to our question as to whether he had anything further to say, replying that he had said everything that he wanted to say. It was during the period when AFX had removed the hearing loop that Mr Karp made his submissions.

Grounds of appeal

1. AFX lodged a Notice of Appeal which contained the following grounds:

(1) Under which Commonwealth or state housing laws does it state that NSW Housing or the Guardianship Tribunal has a legal right to interfere or decide into a tenant's personal affairs be it legal or medical. Refer to added document Guardianship Act 1987 - section 25G grounds for making financial management order.

(2) The grounds of the application to the Guardianship Tribunal is frivolous and vexatious and abuse and a criminal offence by Guardianship Tribunal and NSW Housing and witness in the following way: e-mail not known -phone not known-financial gain -- false accusation -- false document and application and information --NSW Housing taking on the legal authority of a judge and criminal courts. Refer to Added Documents: Guardianship Act 1987 - Part 9 Miscellaneous - section 105, Crimes Act 1900 - Part 4B- Part 5A False and Misleading Information

(3) The hearing by the Guardianship Tribunal is unlawful because the hearing was done by phone which I was at a disadvantage because of hearing disability -- refer to Disability Discrimination Act 1992.

(4)   This order is also unlawful because the CTTT and Housing has discriminated against [AFX]. This discrimination is being deal by NSW Equal Opportunity Tribunal.

Discussion

1. The first ground is a rhetorical question which AFX answers himself when he quotes s 25G of the Guardianship Act 1987. The Guardianship Tribunal has power to make financial management orders pursuant to that section:

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. In relation to the second ground, AFX said that Housing NSW's motive in applying to the Guardianship Tribunal was financial gain. The motive of the applicant is irrelevant to the question of whether the Tribunal has made an error of law in the decision. AFX also said that $40, not $10 is being deducted from his pension each week to pay for the arrears in his rent. The Guardianship Tribunal's decision was made before the NSW Trustee decided how much to deduct to cover rental arrears. The amount that is being deducted is not relevant to the question of whether the Guardianship Tribunal's decision should stand.

1. We accept that s 105 of the Guardianship Act 1987 makes it an offence to make a statement or furnish information to the Guardianship Tribunal that the person knows to be false or misleading. There is no evidence whatsoever that any witness in the Guardianship Tribunal proceedings made a statement which they knew to be false or misleading. In any case, this Tribunal has no power to find that any person has committed an offence pursuant to that provision.

1. In relation to the third ground, it is correct, as AFX points out, that two witnesses from NSW Housing gave their evidence to the Guardianship Tribunal by phone. The reason for doing so is contained in a letter from the second respondent, AGJ, to the Guardianship Tribunal dated 23 September 2011. The letter states, in part, that the two witnesses:

. . . will not be attending in person but available through phone conferencing from their local Housing NSW Office in Maroubra. . this method of communication is requested for the following reason:

AFX has made verbal threats of harm to Housing NSW Staff

AFX has stated that he refuses to deal with Staff from Housing NSW.

1. AFX cannot have been disadvantaged by the fact that two witnesses appeared by phone because he did not appear personally at the hearing. The background is explained in the Guardianship Tribunal's decision at p 2:

At the commencement of the hearing, the Presiding Member reported that he had spoken to AFX in the reception area of the Tribunal's premises prior to the commencement of the hearing, following a report from Tribunal Security that AFX had been observed to have metal objects in a bag and had refused to comply with a request from security to deposit that bag in safe custody with the receptionist pending the commencement of the hearing. The Presiding Member said that following a conversation with AFX and further requests for the bag to be deposited in safe custody and not brought to the hearing room, AFX indicated that he wished to take no part in the proceedings and that he wanted to go home. He requested that a taxi be called for him immediately. This was done and AFX left the Tribunal premises. Before he did so, the Presiding Member had told AFX that it was in his interests to participate in the hearing, and that if he did leave the hearing would proceed in his absence.

1. The final ground of appeal is not relevant. The lawfulness of the Guardianship Tribunal's decision is not affected by the actions of the Consumer Trader and Tenancy Tribunal or Housing NSW.

1. The appeal is dismissed.

**********

Decision last updated: 06 July 2012