Ani and ANL v NSW Trustee and Guardian

[2013] NSWADTAP 21

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

ANI and ANL v NSW Trustee and Guardian [2013] NSWADTAP 21

Hearing dates:

10 April 2013

Decision date:

03 May 2013

Before:

Magistrate N Hennessy, Deputy President
Mr P Molony, Judicial Member
Dr Barbara Field, Non-Judicial Member

Decision:

1. The appeal on questions of law is dismissed.

2. Leave is refused for the appeal to proceed on any other ground.

Catchwords:

APPEAL - appeal from Guardianship Tribunal's decisions to make guardianship and financial management orders - whether subject person's views taken into account - whether breach of procedural fairness - whether settlement attempted - whether leave should be granted for appeal to proceed on any other ground

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

Cases Cited:

Carew v Protective Commissioner [2005] NSWADTAP 13
K v K [2000] NSWSC 1052
KV v Protective & Ors; KW & Ors v KV & Ors (No. 2) [2004] NSWADTAP 48
Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456
Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601
Northern Territory of Australia v Herbert [2002] NTSC 4
Papakosmas v R (1999) 196 CLR 650
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 153 ALR 490
R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456
Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1977) 2 ALD 33
Tasker v Fullwood [1978] 1 NSWLR 20

Texts Cited:

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

Category:

Principal judgment

Parties:

ANI (1st Appellant)
ANL(2nd Appellant)
NSW Trustee and Guardian (1st Respondent)
ANK (2nd Respondent)
ANJ (3rd Respondent)
Guardianship Tribunal (4th Respondent)
APE (5th Respondent)

Representation:

ANI (In person)
ANL (In person)
Ms A Sprouster (4th Respondent)

File Number(s):

128017

 Decision under appeal 

Citation:

2012/2869

Date of Decision:

2012-09-05 00:00:00

Before:

Guardianship Tribunal

File Number(s):

C/50133

reasons for decision

Introduction

1. ANK is an 85-year-old woman with severe dementia who lives in a nursing home in Sydney. Her husband is no longer alive but she has four daughters. Two of the daughters, the appellants, have appealed against the Guardianship Tribunal's decisions to make guardianship and financial management orders in relation to their mother. The Guardianship Tribunal appointed the Public Guardian to make decisions about where ANK should live and appointed the Public Guardian to make financial decisions on her behalf.

1. We have dismissed the appeals against these decisions because the Guardianship Tribunal did not make any of the errors of law that the appellants submitted had been made. We have also refused permission for the appellants to appeal against the Guardianship Tribunal's decision on any other ground.

Procedural background

1. ANK did not attend the hearing. She has dementia and would not have been able to participate in any meaningful way. Both the daughters who were the appellants attended the hearing. Neither of ANK's other two daughters, who are the third and fifth respondents, attended. The third respondent was notified of the hearing but did not attend. The fifth respondent said she would be available by phone, if needed. The NSW Trustee and Guardian chose not to play any active role in the appeal. The Guardianship Tribunal's role was limited to providing information about the Guardianship Tribunal's practices and procedures.

1. All parties filed written submissions and evidence. Apart from a letter dated 15 October 2012 attached to the Notice of Appeal and the material provided by the Guardianship Tribunal, we have not taken into account any of the submissions or evidence provided by the parties. None was relevant to any issue on appeal.

1. The appellants have a right to appeal from the Guardianship Tribunal's decisions on any question of law. They must first obtain the Appeal Panel's permission to appeal on any other ground: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(1).

Grounds of appeal on questions of law

Summary of grounds

1. On the basis of the Notice of Appeal, the first appellant's letter dated 15 October 2012 and what the appellants said during the hearing, we have identified the following grounds of appeal on questions of law:

Did the Guardianship Tribunal:

(1)   fail to take ANK's views into account when exercising its functions;

(2)   breach the rules of procedural fairness by not giving the appellants a reasonable time to reply to questions during the hearing, by failing to tell them that they should bring financial documents or by failing to explain the practical effect of appointing the Public Guardian and the NSW Trustee;

(3)   fail to attempt conciliation despite stating that conciliation had been attempted.

Did the Guardianship Tribunal fail to take account of ANK's views?

1. According to the appellants, the Guardianship Tribunal asked their mother during the hearing who she would like to look after her 'stuff'. They said that her answer was, "my daughters". Because the Guardianship Tribunal appointed the Public Guardian and the NSW Trustee to make substitute decisions for their mother, the appellants submitted that the Guardianship Tribunal had not taken their mother's views into account.

1. The Guardianship Tribunal is directed to "observe" certain principles including that, when exercising functions under the Guardianship Act 1987 (Guardianship Act), the views of the affected person should be taken into consideration: Guardianship Act, s 4. As well, when determining whether to make a guardianship order, the Guardianship Tribunal is directed to have regard to the views of certain people, including the person affected: Guardianship Act, s 14.

1. When considering whom to appoint as ANK's financial manager, the Guardianship Tribunal noted that ANK had previously executed a power of attorney in favour of all four of her daughters. The two appellants accepted the appointment but the third and fifth respondent did not. The Guardianship Tribunal regarded the power of attorney documents as evidence that ANK wished to appoint all four of her daughters jointly to manage her financial affairs.

1. The Guardianship Tribunal did take ANK's views into account. ANK had instructed her solicitor to draft documents which would have had the effect of allowing all four of her daughters to make substitute decisions for her jointly. The Guardianship Tribunal stated that it was mindful of that wish when deciding to appoint the NSW Trustee to be the financial manager rather than one or two of her daughters. The Guardianship Tribunal was unable to identify a private manager or managers who would be able to work effectively with all the daughters in the short term.

1. Given the disagreement between the daughters, it was not appropriate for the Guardianship Tribunal to decide that all four of her daughters should collectively make substitute decisions for their mother. The alternative was to appoint one or more of the daughters as a substitute decision maker. The Guardianship Tribunal decided, on the basis of the difference of opinion between the two camps, that it was in ANK's best interests to appoint an independent decision maker. It made no error of law in coming to that view.

Did the Guardianship Tribunal breach procedural fairness rules?

1. The rules of procedural fairness require that a person is given a fair hearing before decisions are taken which affect their interests: Aronson, Dyer and Groves, Judicial Review of Administrative Action, Lawbook Co 2009 4th ed, at 403. A fair hearing requires that parties be given a reasonable opportunity to present their case and to respond to the substance of any adverse or prejudicial information: KV v Protective & Ors; KW & Ors v KV & Ors (No. 2) [2004] NSWADTAP 48.

1. Firstly, the appellants submitted that they were not given a fair hearing because they were not given adequate time to answer the questions that the Guardianship Tribunal asked them during the hearing. Alternatively, they submitted that more time was given to the third and fifth respondents.

1. No transcript of the Guardianship Tribunal's proceedings was in evidence. We are not satisfied, based on the appellants' assertion, that the Guardianship Tribunal did not give them adequate time to answer questions or that more time was given to the third and fifth respondents. Even if more time was given to others, that does not mean that there has been a breach of procedural fairness. The Guardianship Tribunal is required to give all parties a fair hearing and a reasonable opportunity to be heard. Procedural fairness does not require the Tribunal to give all parties an equal amount of time to answer questions.

1. Secondly, the appellants said that they were not given a fair hearing because they were not told that they should bring documents relating to their mother's financial affairs to the hearing. When asked about the nursing home fees at the Guardianship Tribunal hearing, they were not able to respond in detail because they did not have the information with them. In its decision, the Guardianship Tribunal stated that:

The Tribunal had difficulty eliciting accurate details as to the ongoing fees which are payable to Little Bay from [the second Appellant] who had not brought relevant invoices with her to the hearing. [The second appellant's partner] gave evidence that ANK's age pension is currently being utilised to pay for her daily facility fees of $47 per day, in addition to which ANK is incurring costs of $41 per day for extra services. An interest cost of 8.76% has been accruing since March 2012 as a result of the bond not yet having been paid.

1. The second appellant understands this passage to be inferring that she did not know what was going on with her mother's affairs. The appellants regard it as unfair for the Guardianship Tribunal to have drawn an adverse inference against them because the financial information was not available.

1. Ms Sprouster, representing the Guardianship Tribunal, told us that it is standard procedure to advise parties of the hearing date and request that any written submissions be provided at least one week before the hearing. She said that the Guardianship Tribunal does not give specific advice as to the kinds of documents which may be relevant.

1. The documents which were available to the Guardianship Tribunal at the hearing included a letter dated 27 August 2012 from the second appellant's partner. The letter sets out the details of ANK's assets, income and expenses and attaches relevant documents from financial institutions. The material does not include details of the costs of nursing home care. But the second appellant's partner provided that information verbally at the hearing.

1. We do not agree with the appellants that the Guardianship Tribunal's decision was affected in any way by the fact that the appellants did not provide documentary evidence of the nursing home fees. The second appellant's partner provided that information at the hearing. The fact that the appellants did not bring that information to the hearing did not affect the Guardianship Tribunal's decision to appoint the NSW Trustee. The Guardianship Tribunal did not breach procedural fairness requirements by failing to tell the appellants to bring documentary evidence of the nursing home fees to the hearing. All parties were given a reasonable opportunity to present their case.

1. Thirdly, the appellants said that they were not given a fair hearing because the Guardianship Tribunal did not explain the repercussions of a decision to appoint the NSW Trustee. Since that appointment the appellants say that the NSW Trustee has not consulted them or given them any information about their mother's finances. They also said that their mother's money is earning less interest than it was earning when they were investing it. Both are matters associated with the NSW Trustee's subsequent management of ANK's estate.

1. When determining whether to appoint a private manager or the NSW Trustee, the Guardianship Tribunal took into account the pros and cons of each option. It is not a denial of procedural fairness to fail to spell out those pros and cons to the parties before or during the hearing. Equally, the Tribunal is not required to speculate about the financial consequences of management decisions that might be taken by the Trustee.

Did the Guardianship Tribunal fail to attempt settlement?

1. 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. Section 66(1) and (1A) of the Guardianship Act state that:

(1) The Tribunal shall not make a decision in respect of an application made to it until it has brought, or used its best endeavours to bring, the parties to a settlement.

(1A) Subsection (1) does not apply in respect of an application if the Tribunal considers that it is not possible, or appropriate, to attempt to bring the parties to a settlement.

1. In the reasons for decision, the Guardianship Tribunal stated that:

Throughout the course of the hearing, the Tribunal must try to bring the parties to a settlement if this is possible and appropriate.

Throughout the course of the hearing, the Tribunal used its best endeavours to bring the parties to a settlement. These endeavours were largely unsuccessful.

1. The appellants said that, contrary to this assertion, the Guardianship Tribunal did not try to bring the parties to a settlement. Again, without a transcript, there is nothing to corroborate the appellants' version. Even if the Guardianship Tribunal did not use its best endeavours to bring the parties to a settlement, 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]. No error of law has been made.

Should leave be given to appeal on other grounds?

Principles

1. Even if the Guardianship Tribunal has not made an error of law, we can give permission for the appeal to go ahead on other grounds: Lloyd v Veterinary Surgeons Investigating Committee [2005] NSWCA 456 at [60]- [61], [63]. The ADT Act does not contain any guidance as to the matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in cases interpreting equivalent provisions in the Guardianship Act. In K v K [2000] NSWSC 1052, Young J observed at [10] that 'it has never been clearly decided what the circumstances are that should lead the Court to grant leave to appeal' but observed at [15] that:

. . . it is very unlikely that the Court will grant leave to appeal when there is a problem with a fact finding exercise unless there are clear indications that the Tribunal has gone about that fact finding process in such an unorthodox manner or in a way which is likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

1. The Guardianship Tribunal is not bound by the rules of evidence. It may inform itself on any matter in such manner as it thinks fit: Guardianship Act, s 55(2). The weight that evidence is given is a matter for the Guardianship Tribunal: R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456 at 488, per Diplock LJ.

1. While the rules of evidence applied in courts can be relaxed in tribunals, the Guardianship Tribunal should only give weight to evidence that is relevant to the issues before it and logically probative: Re Pochi and Minister for Immigration and Ethnic Affairs [1979] AATA 64; (1977) 2 ALD 33; Papakosmas v R (1999) 196 CLR 650 at [23] per Gleeson CJ and Hayne J. The Guardianship Tribunal should ensure that when relaxing the rules of evidence "no real injustice will result": Northern Territory of Australia v Herbert [2002] NTSC 4 at [35] per Higgins J; Carew v Protective Commissioner [2005] NSWADTAP 13 at [25].

Did the Guardianship Tribunal make findings based on misleading evidence or hearsay evidence from the third and fifth respondent?

1. According to the first appellant, "All evidence from the other sisters was hearsay and untrue." One example related to a video of ANK crying. According to the second appellant the video is misleading because it does not record other occasions when ANK was happy at the nursing home in Little Bay.

1. The only reference to a video in the documents before the Guardianship Tribunal was in a document received on 18 April 2012 and attached to the application for guardianship and financial management. The document is entitled "Background History to the Application for Guardianship and POA for [ANK]". At page 5 of that document the following statement appears:

There is video evidence on [the third respondent's] mobile phone, of [ANK's] distress at living at [the nursing home in Little Bay] on separate occasions since January 2012 to present.

1. There is no indication in any of the materials that the mobile phone was ever produced or that the Guardianship Tribunal viewed the video. It is not referred to in the reasons for decision. The Guardianship Tribunal recorded the third appellant's assertion that she has always found that her mother is not happy when she has visited her at the nursing home in Little Bay. The Guardianship Tribunal noted that the third respondent believes that there are good alternative facilities closer to where her and the fifth respondent live.

1. The Guardianship Tribunal, quite correctly, made no finding as to whether ANK was happy at Little Bay or not. That was not the issue. The issue was whether it should make a guardianship order. After taking into account each person's views, it decided to make that order. The reason was that there was disagreement among ANK's daughters as to whether she should remain at the nursing home in Little Bay or be moved elsewhere. The Guardianship Tribunal did not rely on evidence that was misleading or based on hearsay in reaching that conclusion.

Did the Guardianship Tribunal make findings of fact which were incorrect?

1. The findings that were said to be incorrect were:

(1)   that there was conflict between the appellants and the third and fifth respondents; and

(2)   that the second respondent's partner was managing ANK's financial affairs.

1. The first appellant told the Appeal Panel that there was no conflict between the appellants and the third and fifth respondents about finances because they had not communicated for at least three years prior to the third respondent lodging the applications with the Guardianship Tribunal. If either the third or fifth respondent had asked for financial information, the first appellant said that she would have given them any information they requested.

1. The Guardianship Tribunal recorded the following evidence in relation to the 'conflict' over financial management:

[The second appellant] stated that the third respondent 'has never asked' (for information). [The fifth respondent] stated that she had asked [the second appellant's partner] for full disclosure approximately two and a half years ago to which he had been verbally abusive and told her it was none of her business, following which all communication between the two "camps" had ceased.

1. The Guardianship Tribunal made the following findings in relation to the 'conflict' over where ANK should live:

The Tribunal heard extensive evidence about the ongoing dispute between [the first appellant and the second appellant] on the one hand, and [the third respondent and the fifth respondent] on the other, about the most appropriate accommodation for their mother. It was apparent to the Tribunal at the hearing that ANK is aware of the ongoing dispute among her daughters; there needs to be clarity about who has authority to make decisions; and ANK clearly expressed desire for this to be shared by all four daughters is not currently being given effect to.

1. There was substantial evidence before the Guardianship Tribunal of a conflict between the appellants and the respondents. We do not agree with the first appellant that the Guardianship Tribunal's finding that such a conflict existed is incorrect.

1. The second incorrect finding was said to be that the third appellant's partner was managing ANK's financial affairs, when in fact the appellants were managing her affairs. The Guardianship Tribunal recorded that:

[The third respondent] told the Tribunal that she brought the application requesting a review of the enduring power of attorney because [the second appellant's partner] (whom she believes has been the person actively managing her mother's affairs) has refused to provide her with any information about her mother's financial affairs and that she did 'not understand why there was no transparency' and that she had been 'kept in the dark since 2010.' During the hearing [the third respondent] stated that she was not making any allegations about there having been any misappropriation of her mother's funds . . .

1. The Guardianship Tribunal also recorded evidence from the second appellant's partner that he works as a financial planner and that he had assisted ANK with the preparation of her annual tax returns. He said he would collect the information from ANK and provide it to an accountant who would prepare the return.

1. There was conflicting evidence as to whether the second appellant's partner was actively managing ANK's financial affairs. The Guardianship Tribunal did not make a finding about that matter presumably because it was not relevant to any issue it needed to determine. Consequently, the Guardianship Tribunal did not make an incorrect finding about that matter.

Conclusion

1. It follows from this discussion that we are not persuaded that the Guardianship Tribunal went about the fact finding process in such an unorthodox manner or in a way that was likely to produce an unfair result so that it would be in the interests of justice for it to be reviewed.

Orders

1. The appeal on questions of law is dismissed.

2. Leave is refused for the appeal to proceed on any other ground.

Decision last updated: 03 May 2013