ANGELINA SCIBERRAS No. SCGRG-99-346 Judgment No. S221

In the matter of ANGELINA SCIBERRAS and ORS
[1999] SASC 221

Case Stated by the Guardianship Board

PERRY J. This case involves a short point of construction of certain provisions in the Guardianship and Administration Act 1993 (“the Act”).
The matter comes to this Court by way of a case stated by the Guardianship Board (“the Board”). Section 65 of the Act empowers the Board to state such a case on any question of law.
The questions of law set out in the case stated are:
“1..... Does the Guardianship Board, constituted by either-
(a).... the President or a Deputy President, or
(b) a single member,
......... sitting alone, have jurisdiction to conduct a review of the circumstances of a protected person pursuant to s57 Guardianship and Administration Act 1993.
2.Does the Guardianship Board, so constituted, have power upon the hearing of such a review, to vary guardianship or administration orders applying to the protected person in such way as the Board may deem fit.
3...... Does the Guardianship Board, constituted by the President sitting alone, have power in the present proceedings pursuant to Section 57, to vary the guardianship and administration orders applying to the protected person in the manner proposed by the Minutes of Order (attached to the Case Stated and marked “C”).”
The questions of law arise in respect of a review conducted by the Guardianship Board pursuant to the provisions of s57 of the Act into the circumstances of Angelina Sciberras (“the protected person”). The circumstances leading up to the review, and the relevant sections of the Act, are as follows.
The Guardianship Board received an application made by Joan Stead of Western Domiciliary Care seeking guardianship and administration orders pursuant to s29 and s35 of the Act in respect of the protected person, now a resident of Allora Nursing Home at Woodville West.
Section 29 defines the circumstances in which a guardianship order may be made. Relevantly, it provides:
“(1).. If the Board is satisfied, on an application made under this Division-
(a).... that the person the subject of the application has a mental incapacity; and
(b) that the person the subject of the application does not have an enduring guardian; and
(c)... that an order under this section should be made in respect of the person.
The Board may, by order, place the person under-
(d)... the limited guardianship; or
(e) if satisfied that an order under paragraph (d) would not be appropriate, the full guardianship,
......... of such person or persons as the Board considers in all the circumstances of the case to be the most suitable for the purpose.
(2)A limited guardianship order is an order by which the Board specifies the particular aspects of the protected person’s care or welfare that are to be the responsibility of the appointed guardian or guardians.
(3)... …………..
(4)The Public Advocate may be appointed as the guardian, or one of the guardians, of the person, but only if the Board considers that no other order under this section would be appropriate.
(5)... ………..
(6)………”
Section 35, which relates to administration orders, in part provides:
“(1).. If the Board is satisfied, on an application made under this Division-
(a).... that the person the subject of the application has a mental incapacity; and
(b)    that an order under this section should be made in respect of the person.
The Board may by order appoint an administrator, or administrators, of-
(c)    a specified part of the person’s estate (a ‘limited administration order’); or
(d)... if satisfied that an order under paragraph (c) would not be appropriate, the whole of the person’s estate (a ‘full administration order’).
(2)... Any of the following may be appointed as an administrator under this section:
(a).... The Public Trustee;
(b)    ………..
(c)... ………..
(3)... The Public Trustee may only be appointed as a sole administrator under this section.
(4)An administration order-
(a).... may be subject to such conditions or limitations (including a limitation as to the duration of the order) as the Board thinks fit and specifies in the order; and
(b)    may confer such further powers (beyond those conferred by this Act) on the administrator as the Board thinks necessary or desirable for the proper administration of the estate and specifies in the order.”
On 30 August 1996, pursuant to s29 of the Act, the Board, constituted of three members, ordered that the Public Advocate be appointed limited guardian of Mrs Sciberras. The order was a limited guardianship order, in that it related only to her accommodation and health care.
On the same occasion, pursuant to s35 of the Act, the Board further ordered that Public Trustee be appointed full administrator of the estate of the protected person.
I turn now to the process of review. Section 57 provides in part:
“(1).. The Board must review the circumstances of a protected person-
(a).... in the case of a protected person who is being detained in any place pursuant to an order of the Board - within six months of the making of the order and thereafter at intervals of not more than one year; and
(b) in any other case - at intervals of not more than three years, for the purpose of ascertaining whether the order or orders to which the person is subject under this Act are still appropriate.
(2)... …………….
(3)The Board must, on completion of a review, revoke the order or orders to which the protected person is subject unless the Board is satisfied that there are proper grounds for the order or orders remaining in force.
(4)... If the Board is satisfied that there are proper grounds for an order remaining in force, the Board may, by order, vary the terms of the order.”
On 27 March 1997, pursuant to s57 of the Act, the Board, constituted by one member, conducted a review of the protected person’s circumstances.
On the review, the Board ordered that both the guardianship and administration orders remain in force, with some minor variation as to ancillary matters.
On 16 July 1998, the Board conducted a further review of Mrs Sciberras’ circumstances. Orders made on this review were subsequently quashed on appeal to the District Court, on the ground that the respondent Charles Sciberras, Mrs Sciberras’ son, had wrongly been deprived of an opportunity to appear at the review hearing and make submissions. The District Court remitted the matter to the Board for a re-hearing of the review proceedings.
On 2 February 1999 the review was listed for re-hearing before the Board, constituted by the President of the Board, sitting alone. Mrs Sciberras was not separately represented. The respondent Charles Sciberras appeared at the hearing, unrepresented. The Public Advocate, Public Trustee and the respondent Joan Stead appeared at the hearing and were represented by counsel instructed by the Crown Solicitor.
During the course of the review conducted by the Board, general agreement was reached between all parties present as to the appropriate orders to be made. The Board was satisfied that there were proper grounds for the guardianship and administration orders to remain in force. However, the Board considered it appropriate to vary the orders in relation to the limited guardianship. The Board ordered that the role and duties of the limited guardian should be restricted to those concerning accommodation only.
Draft minutes of order were prepared reflecting the agreement of all parties, which have been annexed to the case stated.
Following this review, the Board received a letter from Janet E Howell & Associates, Barristers and Solicitors, who had briefed independent counsel for the protected person in the appeal proceedings in the District Court. They contended that the Board constituted by a single member did not have jurisdiction to conduct a review pursuant to s57 of the Act. This was disputed by Mr Stevens, counsel on behalf of Public Trustee, the Public Advocate and Ms Stead.
The Constitution of the Guardianship Board is governed by s6 of the Act. Relevantly, the section provides:
“6.(1)... The Guardianship Board is established.
(2)Subject to this section, the Board will be constituted in relation to the hearing of any proceedings or the conduct of any other business of the following members:
(a)the President or a Deputy President; and
(b)a member of the panel constituted under section 8(1) and selected by the President or a Deputy President to be a member of the Board for the purpose of the hearing of those proceedings or the conduct of that business; and
(c)a member of the panel constituted under section 8(2) and selected by the President or a Deputy President to be a member of the Board for the purpose of those proceedings or that business.
(3)    ............
(4)    .............
(5)    The regulations may provide that, in relation to the exercise of specified functions, or in relation to matters of a specified class, the Board may be constituted of the President, a Deputy President or a member of a panel, sitting alone and, where the regulations so provide, the Board may be constituted accordingly.”
Regulation 4 of the regulations made under the Act is in the following terms:
“(1).. For the purposes of s6(5) of the Act, the powers of the Board may be exercised as follows:
(a).... The President or a Deputy President may, sitting alone, exercise any power of the Board other than the power to make-
(i).... a guardianship order (s29(1) of the Act);
(ii)an administration order (s35(1) of the Act).
(b)... A member of the Board who is drawn from a panel may, sitting alone, exercise any power of the Board other than the power to-
(i).... make a guardianship order (s29(1) of the Act);
(ii)make an administration order (s35(1) of the Act);
(iii).. …………
(iv)..............” (emphasis added)
The question is whether the President, a Deputy President or a single member sitting alone may conduct a review pursuant to s57. If so, the further question arises as to whether the making of any order of the Board which varies an existing guardianship or administration order, should be equated with the making of a guardianship or administration order for the purposes of Regulation 4(1)(a). If that question is answered affirmatively, having regard to Regulation 4(1)(a), the President or a Deputy President, or in the case of Regulation 4(1)(b), a single member, sitting alone, would lack jurisdiction to make an order varying either a guardianship order or an administration order.
The answer lies in a close analysis of the relevant sections and the regulations.
Guardianship and administration orders are made pursuant to s29 and s35 of the Act respectively. The Act provides for variation or revocation of such orders pursuant to s30 and s36 of the Act (which I have not troubled to cite), or upon a review under s57. It must be inferred that the intention of the legislators, as expressed in the Act and regulations, was only to exclude the making of a guardianship or administration order, as opposed to a variation or revocation of such an order, from the powers of the President or a Deputy President or a member of the Board sitting alone. This construction is supported by the use of the word “make” in Regulation 4(1)(a) and (b), and the specific references to s29 and s35 in the same regulation.
It follows that the Board, constituted by the President or a Deputy President or a member of the Board sitting alone, has the jurisdiction to conduct a review of guardianship or administration orders pursuant to s57. This includes the power to revoke or vary its terms.
True it is, as Mr Fox for the protected person, submitted during the course of his argument on the hearing of the case stated, that the power to affirm a guardianship or an administration order, or to vary or revoke it, may have a serious effect on the liberty of the subject and the power of the person to exercise control over his or her property. In that sense, the jurisdiction to review is as significant from the point of view of the protected person as the jurisdiction exercised when a protection order is made in the first place.
Despite that consideration, it seems to me that the relevant provisions of the Act and the regulations are too clear to admit of any doubt as to their purpose and effect.
It should be borne in mind that on the other hand, the regulations take effect to create the jurisdiction which may be exercised by a single member only, as an enabling provision. The jurisdiction is not exclusive to a single member. In appropriate cases, where there are complications or serious matters of contention, one might expect that the Full Board would be convened.
Before parting with the matter, I draw attention to the form in which the order which was the outcome of the review conducted in March 1997 was expressed. The order reads:
“GUARDIANSHIP AND ADMINISTRATION ORDER
BEFORE THE BOARD: R. Clancy
UPON A REVIEW of a Guardianship Order and an Administration order dated 30 August 1996 in respect of ANGELINA SCIBERRAS of Allora Nursing Home, 15 Rosemary Street, WOODVILLE WEST 5011 (hereinafter called the ‘protected person’) UPON THE BOARD being satisfied that the protected person:
has a mental incapacity within the meaning of the Act; and
does not have an Enduring Guardian; and
THAT an Order should be made in respect of the protected person THE BOARD ORDERS:
1...... THAT the PUBLIC ADVOCATE of 85 North East Road, COLLINSWOOD 5081 be appointed limited guardian of the protected person.
2.THAT the role and duties of the guardian are limited to those concerning:
Accommodation and Health Care
3...... THAT PUBLIC TRUSTEE of 25 Franklin Street, ADELAIDE 5000 be appointed full administrator of the estate of the protected person.
4.THAT CHARLES SCIBERRAS of 33 Hatherleigh Road, PARAFIELD GARDENS 5107 be appointed liaison person.
5...... THAT PUBLIC TRUSTEE shall provide an annual report to the Board with three monthly reports to the liaison person and to the protected person on its administration of the estate of the protected person.
6.THAT the Guardianship Order and the Administration Order be reviewed by the Board on or before the 27 March 1998 provided always that the protected person, the applicant and any other person entitled thereto may be at liberty to apply to the Board for a review of its orders at any time prior to that date.
DATED: 27 March 1997. (seal affixed)”
It seems to me that the operative parts of that order read as though it is a substantive order appointing the Public Advocate, Public Trustee, et cetera, in their respective roles. Given that the review is conducted under s57 of the Act, it would have been more appropriate for the order to be worded so as to indicate that, upon the review, the Board was satisfied that the initial order, that is, the order dated 30 August 1996, should remain in force, subject to such variations as might then be specified.
The point is more than a question of form, because the manner in which the order which was the outcome of the review proceedings is expressed, tends to suggest that it is an order appointing a guardian and appointing an administrator. To express the order in that way tends to lead to confusion, in that in some respects, it reads in terms of a substantive order, which the President, a Deputy President or a single member, sitting alone, would lack jurisdiction to make.
But those considerations cannot affect the question of construction raised by the case stated.
I would answer the questions in the case stated as follows:

QUESTION	ANSWER
(1)	Does the Guardianship Board, constituted by either (a).. the President or a Deputy President, or (b).. a single member sitting alone, have jurisdiction to conduct a review of the circumstances of a protected person pursuant to Section 57 of the Guardianship and Administration Act 1993.	Yes.
(2)	Does the Guardianship Board, so constituted, have power upon the hearing of such review, to vary guardianship or administration orders applying to the protected person in such a way as the Board may deem fit.	Yes.
(3)	Does the Guardianship Board, constituted by the President sitting alone, have power in the present proceedings pursuant to Section 57 to vary the guardianship and administration orders applying to the protected person in the manner proposed by the Minutes of Order (attached hereto and marked “C”).	Yes.

[1999] SASC 221

2 June 1999