AJF v NSW Trustee and Guardian

[2012] NSWADTAP 29

Administrative Decisions Tribunal

New South Wales

• Amendment notes

Medium Neutral Citation:	AJF v NSW Trustee and Guardian [2012] NSWADTAP 29
Hearing dates:	6 July 2012
Decision date:	26 July 2012
Before:	Magistrate N Hennessy, Deputy President Ms L Goodchild, Judicial Member Ms M Bolt, Non-Judicial Member
Decision:	The decisions of the Guardianship Tribunal in relation to AJE made on 28 October 2011 are affirmed.
Catchwords:	EXTERNAL APPEAL - decisions of the Guardianship Tribunal relating to guardianship and financial management - appeal on questions of law - procedural fairness issues - whether appeal should extend to the merits
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987 Interpretation Act 1987
Cases Cited:	Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767 Holt v Protective Commissioner (1993) 31 NSWLR 227 K v K [2000] NSWSC 1052 KA v Public Guardian [2004] NSWADTAP 25 Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490 Re R [2000] NSWSC 886 Tasker v Fullwood [1978] 1 NSWLR 20 Titan v Babic (1994) 49 FCR 546 W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220
Category:	Principal judgment
Parties:	AJF (Appellant) NSW Trustee and Guardian (First Respondent) AJH (Second Respondent) AJE (Third Respondent) AJG (Fourth Respondent)
Representation:	Counsel Mr Williamson (Appellant) Craney Family Solicitors (Appellant) No appearance (First Respondent) James McCaffrey & Associates - appearing for Ms L Fisher, guardian ad litem (Second Respondent) V L Hall - appearing for Ms D Doratis, guardian ad litem (Third Respondent) No appearance (Fourth Respondent) E Cho (Guardianship Tribunal)
File Number(s):	128003
Decision under appeal	Citation: 2011/6329 Date of Decision: 2011-10-28 00:00:00 File Number(s): C/48311

REASONS FOR DECISION

Introduction

1. AJF has appealed to the Appeal Panel against two decisions of the Guardianship Tribunal that relate to his mother, AJE. The first decision was to make a guardianship order for twelve months and to appoint the Public Guardian to make decisions about accommodation, health care, medical and dental treatment and services. The second decision was to make a financial management order and to appoint the NSW Trustee as his mother's financial manager.

1. AJF is entitled to appeal on a question of law but must obtain the Tribunal's leave before an appeal can be heard on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

1. The Guardianship Tribunal's decisions were in response to applications by AJF for guardianship and financial management orders in relation to both his parents. AJF made the applications anticipating that he would be appointed as his parents' guardian and financial manager. AJF has also appealed against the decisions relating to his father. That appeal has been considered in separate reasons: AJF v NSW Trustee and Guardian [2012] NSWADTAP 28.

Background

1. AJE is an 88-year-old woman who has been married to her husband AJH for over 60 years. They have three children, AJF, AJG and another adult son. AJE was represented at the hearing by a guardian ad litem. AJF was represented by counsel. His sister, AJG, chose not to participate. Ms Cho, representing the Guardianship Tribunal, participated by phone. Neither the Public Guardian nor the NSW Trustee chose to participate.

1. The applications for guardianship and financial management were heard on 28 October 2011. There was no dispute that AJE needed a guardian and a financial manager to make decisions for her or that the Guardianship Tribunal should exercise its discretion to appoint a person to undertake those roles. The sole issue before the Guardianship Tribunal was whether it should appoint AJF or the NSW Trustee and Guardian.

Appointment of guardians and financial managers

1. Once a guardianship order has been made, the Guardianship Tribunal may appoint an individual or the Public Guardian to be the person's guardian. When making a continuing guardianship order, the Guardianship Tribunal is not to appoint the Public Guardian where it could make an order appointing some other person: Guardianship Act 1987, s 15(3): W v G [2003] NSWSC 1170; (2003) 59 NSWLR 220, at [25].

1. The Guardianship Tribunal must not appoint an individual unless it is satisfied that:

(a)   the personality of the proposed guardian is generally compatible with that of the person under guardianship,

(b)   there is no undue conflict between the interests (particularly, the financial interests) of the proposed guardian and those of the person under guardianship, and

(c) the proposed guardian is both willing and able to exercise the functions conferred or imposed by the proposed guardianship order: Guardianship Act 1987, s 17(1).

1. In relation to the appointment of a financial manager, the Guardianship Tribunal may appoint a "suitable person" as manager or commit the management of the estate to the NSW Trustee: s 25M(1). Unlike the situation in relation to the appointment of a guardian, the legislation does not express a preference for the appointment of an individual rather than a public decision maker. Nevertheless courts have interpreted the fact that a "suitable person" is mentioned before the NSW Trustee in s 25M(1) as reflecting a sensible "hierarchy of choices": Holt v Protective Commissioner (1993) 31 NSWLR 227, 238 per Kirby P; Re R [2000] NSWSC 886 at [48].

1. The general principles applicable to the exercise of functions under the Guardianship Act must always be kept in mind. They include giving the welfare and interests of the subject person paramount consideration, taking into account the views of the subject person and preserving family relationships: s 4.

Grounds of appeal

1. Prior to the hearing, AJF was not legally represented. He filed a Notice of Appeal together with submissions. We have not taken into account that part of his submissions entitled "Background Overview" which is in the nature of a statement. Fresh evidence is not generally admitted unless the Appeal Panel gives leave to extend the appeal to the merits of the Tribunal's decision. For the same reason, we also declined to take into account a statement from AJF dated 29 June 2012. Some of the evidence in that statement was irrelevant and other parts were withdrawn during the course of the hearing.

1. At the hearing AJF's lawyer added one ground of appeal - that his client had been denied procedural fairness by the Guardianship Tribunal's failure to consider and grant an application for an adjournment. His lawyer did not press several others grounds. In particular, it was clarified that matters that occurred after the October hearing could not be the subject of appeal.

1. In summary, the grounds of appeal on questions of law were that the Guardianship Tribunal:

(1)   failed to afford procedural fairness by:

(a)providing a report from AJE's GP, Dr Martin dated 15 October 2011 only 2 days before the hearing;

(b)failing to provide a copy of a report from Ms Schrader dated 24 October 2011;

(c)not considering or granting an application for an adjournment;

(d)   not being given an adequate opportunity to present his case including failing to contact witnesses who would support his application;

(e)   not telling him that his application could result in the Public Guardian and/or NSW Trustee being appointed instead of him;

(f)   not telling him that lawyers would be appointed for his father but that he would not be legally represented unless he requested leave;

(2)   made findings on the basis of unreliable evidence from service providers and the separate representative for his father to reach a view as to his suitability as a substitute decision maker; and

(3)   failed to attempt conciliation.

Procedural fairness

1. In KA v Public Guardian [2004] NSWADTAP 25 at [9], the Appeal Panel summarised the principles relating to procedural fairness in the Guardianship Tribunal in the following terms:

When making decisions, the Guardianship Tribunal must afford procedural fairness to any person whose "interests, rights or legitimate expectations" are affected. (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 at 584 per Mason J; See, also Ainsworth v Criminal Justice Commission [1992] HCA 10; (1992) 175 CLR 564; Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408; Annetts v McCann [1990] HCA 57; (1990) 170 CLR 596.) The content of the hearing rule must be "appropriate and adapted to the circumstances of the particular case." (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Mason J at 585.) In the ordinary case, a person whose interests, rights or legitimate expectations are affected should be given an opportunity to deal with adverse information that is "credible, relevant and significant to the decision to be made." (Kioa v West [1985] HCA 81; (1985) 159 CLR 550 per Brennan J at 629.) While all documents which contain adverse material do not necessarily have to be provided to a party, the substance or gravamen of that material should be disclosed. (Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1979) 26 ALR 247; Re Pergamon Press Ltd [1971] CH 388; Ansell v Wells [1982] FCA 186; (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557.)

Failure to provide documents in time or at all

1. In a letter dated 20 October 2011, the Guardianship Tribunal sent AJF two documents including a Health Professional Report from Dr Martin dated 15 October 2011. AJF said that he did not receive this document until 26 October, 2 days before the hearing. We accept that evidence which accords with the presumption in s 76 of the Interpretation Act 1987 about deemed service.

1. There is nothing in the report that could be regarded as adverse to AJF, or about which AJF was not already on notice. In those circumstances receiving that document shortly before the hearing does not constitute a breach of procedural fairness on the part of the Guardianship Tribunal.

1. A report from Ms Schrader (case manager with Hunter Case Management Services) dated 24 October 2011 was not provided to AJF prior to or at the hearing. That report stated that, "Due to [AJE's] current hostility towards her son [AJF] the appointment of a formal guardian would be the best option for [AJE]." All documents which contain adverse material do not necessarily have to be provided to a party, but the substance of that material should be disclosed. AJF was already on notice of his mother's view that she did not want her son to be a substitute decision maker for her. The Guardianship Tribunal, in its reasons for decision, noted that the separate representative for AJE and her previous solicitor were both in favour of the Public Guardian being appointed. AJF was on notice prior to the hearing that that was their view. Even if AJF was not on notice that it was also Ms Schrader's view, that does not constitute a breach of procedural fairness.

Application for adjournment

1. During the hearing the Presiding Member put it squarely to AJF that the issue he needed to address was why he was an appropriate person to be his mother's guardian and/or financial manager given the evidence about tension and conflict between them. Having been directed to that issue, AJF eventually made the following comment:

Okay. Well, you've helped me focus a little closer. I've got a wealth of material here, a wealth of material that I would have wished that you had an opportunity to consider and, you know, given the serious nature of that material, I'm wondering whether this should be adjourned for four weeks but . . . I will go on.

1. The transcript indicates that the Public Guardian's representative interrupted AJF and objected to an adjournment before AJF finished his sentence with the words, "I will go on." The Presiding Member then said:

Well, it's a really very simple question. There are reports from the representatives saying that it would be best to have an independent guardian. There is the written statements from your mother. It seems that you and your sister have differing views and opposing views, and yet the guardian needs to be able to preserve family relationships - is one of the principles under the Guardianship Act. So I'm still coming to the point, how do you think you being appointed is the best thing for your father? Why should you be appointed versus an independent person who you are able to speak with and have the same relationship with as your sister?

1. On the basis of the transcript, we are satisfied that AJF did not request an adjournment. That explains why the Tribunal did not decide whether or not to grant an adjournment. Furthermore, when asked by the Appeal Panel, through his lawyer, to identify the "wealth of material" that AJF was referring to, we were told that it was several character references from people about his suitability as a substitute decision maker. AJF was contemplating requesting an adjournment, not so that he could have an opportunity to digest and respond to material recently served on him, but to provide evidence of his own suitability as guardian and financial manager.

1. AJF was on notice that the nature of his relationship with his parents was an issue in terms of his suitability as a substitute decision maker. That issue had been raised by his sister, AJG, in her statement to the Guardianship Tribunal, by geriatrician Tracy Brown in her reports following consultations on 3 August 2011 and by a member of the Aged Care Assessment Team (ACAT) following a visit in April 2011. The Presiding Member referred to evidence and submissions relating to tension and conflict between AJF and his mother when responding to AJF's query about an adjournment.

1. A decision maker may be obliged to adjourn a matter where it is in the interests of justice: Titan v Babic (1994) 49 FCR 546. That was not the case here. AJF knew that there was evidence which put in doubt his suitability as an alternative decision maker. He was given an adequate opportunity to respond to that evidence both before and during the hearing.

Opportunity to present his case

1. Two further matters relating to an alleged breach of procedural fairness were that AJF was not given a reasonable opportunity to present his case and that the Tribunal did not contact relevant witnesses.

1. AJF alleged that he was repeatedly interrupted and that the Presiding Member was 'aggressive' and 'intimidating'. The transcript reveals that the Presiding Member frequently directed AJF to speak about relevant issues. It is also clear from the transcript that when AJF was addressing the Tribunal on relevant matters, he was given a reasonable opportunity to state his case. While it is not possible to gauge the tone of the Presiding Member's voice or draw conclusions about gestures that were used, there is nothing overtly aggressive or intimidating in the words used. On the contrary, the transcript reads as if the Presiding Member was persistently attempting to inform and re-direct AJF in relation to the issues it had to decide.

1. AJF also submitted that the Presiding Member should have telephoned his mother's general practitioner, Dr Martin, so that he could give evidence about his suitability as a substitute decision maker. He emphasised that Dr Martin had known his parents for over 15 years and that he was in a much better position to express a view on that issue than health or legal professionals who had had more recent and fleeting contact. AJF also said that there was no telephone at the hearing which meant that the Tribunal was not able to contact Dr Martin.

1. Ms Cho, representing the Guardianship Tribunal, clarified that the Tribunal is provided with a mobile phone and can ring witnesses if they consider it appropriate. We accept that the Guardianship Tribunal could have telephoned Dr Martin had it considered it appropriate to do so.

1. Dr Martin's report related almost exclusively to his patient's capacity to make decisions about her everyday life and his finances. When providing the Health Professional Report Form dated 19 September 2011 to the Guardianship Tribunal he was not asked to express a view as to the suitability of AJF as a substitute decision maker.

1. Dr Martin had expressed a view on that issue in a letter dated 3 March 2011. He wrote that AJF should be appointed as guardian and financial manager for his parents. However, the letter did not state the basis on which Dr Martin had come to that view.

1. In circumstances where there was no issue about his mother's health or capacity and where Dr Martin's evidence about AJF's suitability for appointment was confined to an unsupported statement of opinion, it was not a breach of procedural fairness for the Tribunal to choose not telephone Dr Martin.

Notice as to potential adverse findings

1. AJF submitted that he was not put on notice of possible adverse findings, in particular that the Public Guardian and/or the NSW Trustee could be appointed instead of him.

1. It is a requirement of procedural fairness for a decision maker to clarify the case against a person, if there is any confusion. In EB & Ors v Guardianship Tribunal & Ors [2011] NSWSC 767, Hallen AsJ commented that, " [T]he Tribunal should ensure that parties, particularly ones who are self-represented, understand what needs to be established before an order is made or not made so that they are not disadvantaged in relation to the manner in which their case in opposition to the application is presented." (Emphasis added.) We are not aware of any such principle applying to an applicant.

1. The other respects in which AJF contended that he had not been adequately informed was in relation to the degree of informality and the need for legal representation. AJF expressed that view at one point during the hearing that he did not realise that the proceedings would be conducted in a formal manner.

1. On our reading of the transcript, the Guardianship Tribunal proceedings were conducted in an informal manner. The Presiding Member guided the discussion and attempted to allow everyone present to state their views and give oral evidence. Opportunities were provided for the questioning of witnesses. We do not accept AJF's submission that the proceedings were conducted in a formal manner.

1. The issue about legal representation appears to be that AJF's parents were assigned separate representatives but it was not explained to him that he could apply for legal representation. It is clear from the Tribunal's website that AJF must obtain leave before he can be represented by a lawyer.

Making findings of fact on the basis of unreliable evidence

1. The next ground of appeal was that the Guardianship Tribunal made findings on the basis of unreliable evidence from service providers, the Public Guardian's representative and the separate representative for his mother. That evidence related to tensions and conflict between AJF and his parents, especially his mother. Two of the points AJF made were that: the Public Guardian's representative did not state her qualifications or area of expertise and that Mr Trisley (former solicitor for his mother) and Ms Schrader gave unreliable evidence. A third point was that AJF was concerned that the Tribunal had made findings of fact based on evidence from people who had had little contact with his parents.

1. The Tribunal is not bound by the rules of evidence: Guardianship Act, s 55. The Public Guardian's representative was not put forward as an expert witness so her qualifications and/or area of expertise were irrelevant.

1. It is an error of law to make ultimate findings of fact for which there is no evidence whatsoever: Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390 at [90]; Aronson, Dyer and Groves, Judicial Review of Administrative Action, 4th edition, Lawbook Co 2009 at 4.105. Even findings of fact which are "perverse" or "contrary to the overwhelming weight of the evidence" do not constitute an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156 per Glass JA. Nevertheless, the Tribunal is obliged to make material findings of fact based on at least some logically probative evidence.

1. In this case there was consistent evidence from several people about the tensions between AJF and his parents which was relevant and reliable, in the sense that it was given by them based on what they had seen and heard. The Tribunal did not make an error by making findings that were based on that evidence.

Failure to conciliate

1. The final ground of appeal relates to the Guardianship Tribunal's failure to attempt conciliation. The Guardianship Tribunal is obliged to attempt to settle the matter before making a decision unless it considers that it is not possible, or appropriate, to do so: s 66.

1. The presiding member raised the possibility of the parties conciliating the matter during the hearing (Transcript 28/3/2012, p 4 and 5). Having raised the issue, we are satisfied that the Tribunal considered that it was not appropriate to attempt conciliation or that the attempt that was made was not successful. In any case, s 66 is a procedural provision any breach of which does not invalidate the ultimate decision: Tasker v Fullwood [1978] 1 NSWLR 20; Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490. Compliance with s 66 is irrelevant once the Tribunal proceeds to hearing and makes a determination: Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [21], [46], [169] and [251].

Leave to appeal on the merits

1. We have found no error of law in the Guardianship Tribunal's decision, but an error of law is not required before the Tribunal can extend the appeal to the merits of the Tribunal's decision: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 at [60]-[61]. However, a party must obtain the leave of the Appeal Panel before appealing "on any other ground": ADT Act, s 118B(1). We assume that if leave is sought to appeal against the merits of the Tribunal's decision, it is on the same grounds as were put forward in relation to the appeal on questions of law.

1. One possible basis for granting leave is that the Tribunal has gone about its fact finding process in an unorthodox manner or in a manner which is likely to produce an unfair result: K v K [2000] NSWSC 1052 per Young J at [15]. AJF was critical of the Tribunal's reliance on evidence from people who had had recent and limited contact with his family, as opposed to Dr Martin who had had a much longer involvement. In our view, that reliance is neither unorthodox nor likely to produce an unfair result. As we have explained, Dr Martin's evidence was directly relevant to the issues of AJE's capacity. While he had expressed a view in a letter several months before the hearing that AJF would be a suitable substitute decision maker for his parents, that view was not supported by any information or analysis. The Tribunal's failure to contact him to ask him questions about that opinion does not justify granting leave to appeal on the merits. Nor are we persuaded by any of the other matters raised by AJF that that is the desirable course.

Orders

The decisions of the Guardianship Tribunal in relation to AJE made on 28 October 2011 are affirmed.

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Amendments

16 August 2012 - typographical error, AJH should read AJE

Amended paragraphs: Coversheet

Decision last updated: 16 August 2012