Aos v NSW Trustee and Guardian

[2013] NSWADTAP 33

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AOS v NSW Trustee and Guardian [2013] NSWADTAP 33

Hearing dates:

7 May 2013

Decision date:

22 July 2013

Jurisdiction:

Appeal Panel - External

Before:

Magistrate N Hennessy, Deputy President
L Goodchild, Judicial Member
A Wunsch, Non-Judicial Member

Decision:

1. Leave to appeal on a ground other than a question of law is refused.

2. The Guardianship Tribunal's decision to appoint the NSW Trustee as AOS's financial manager is affirmed.

Catchwords:

APPEAL - Guardianship Tribunal decision to appoint NSW Trustee as financial manager of woman with brain injury - whether Tribunal made an error of law by not suggesting an adjournment - by not following principles for appointment of financial manager or by giving inadequate reasons - whether to grant leave to appeal on other grounds

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Guardianship Act 1987

Cases Cited:

SH v Protective Commissioner [2006] NSWADTAP 4
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13
EB & Ors v Guardianship Tribunal [2011] NSWSC 767
Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J;
AJF v NSW Trustee and Guardian [2012] NSWADTAP 28
Holt v Protective Commissioner (1993) 31 NSWLR 227
House v King [1936] HCA 40; (1936) 55 CLR 499
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Absolon v NSW TAFE [1999] NSWCA 311
K v K [2000] NSWSC 1052
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886

Category:

Principal judgment

Parties:

AOS (Appellant)
NSW Trustee and Guardian (Respondent 1)
AOT (Respondent 2)
AOU (Respondent 3)
Guardianship Tribunal

Representation:

Carroll & O'Dea Lawyers (Appellant)
Crown Solicitors Office (Counsel Assisting)
A. Sprouster (Guardianship Tribunal)

File Number(s):

138003

Publication restriction:

S126 of the Administrative Decisions Tribunal Act

 Decision under appeal 

Citation:

2012/8291
2012/8292

Date of Decision:

2012-11-30 00:00:00

File Number(s):

C/51681

reasons for decision

Introduction

1. AOS is a young woman who has an intellectual disability as a result of a brain injury. The manager of a brain injury organisation that was providing services to AOS applied to the Guardianship Tribunal for a guardianship order and a financial management order. That application was made because of concerns about the influence AOS's new partner, AOU, was having on the decisions AOS was making. The Guardianship Tribunal made a guardianship order and appointed the Public Guardian as AOS's guardian. The Tribunal also made a financial management order and appointed the NSW Trustee as AOS's financial manager. AOS has appealed only against the appointment of the NSW Trustee as her financial manager. She originally wanted her mother to be the manager but now says that her brother is the most suitable person for that role.

Jurisdiction and parties

1. The Administrative Decisions Tribunal has jurisdiction to hear this external appeal: Guardianship Act 1987, s 67A(1)(e), Administrative Decisions Tribunal Act (ADT Act) 1997, s 118A and SH v Protective Commissioner [2006] NSWADTAP 4 at [10] to [13]. An appeal may be made as of right on a question of law and, with leave, on any other ground: ADT Act, s 118B(1).

1. The appellant, AOS, was represented by a solicitor. The original applicant to the Guardianship Tribunal, AOT, appeared on his own behalf. Because no party with legal representation was opposing the appeal, we appointed the Crown Solicitors Office to assist the Tribunal: ADT Act, s 67(2C); Administrative Decisions Tribunal Rules, 1998, reg 41A.

1. The Guardianship Tribunal elected to be a party and, in accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35, its role is limited to making submissions in relation to the powers and procedures of the Guardianship Tribunal: ADT Act, s 67(2B),

Background

1. At the hearing on 7 May 2012, the solicitor for AOS told the Tribunal that AOS's circumstances had changed. Although the relationship is not over, AOS is no longer living with her partner. She is living at home with her parents. AOS's solicitor also told the Tribunal that at the Guardianship Tribunal hearing AOS put her mother forward as a suitable person to be appointed as her financial manager. AOS still submits that the Guardianship Tribunal made errors of law when deciding not to appoint her mother but is now putting her brother forward as the most suitable person to be her financial manager.

1. Counsel assisting the Tribunal submitted that given the change in circumstances, AOS or another party who has standing, could apply to the Guardianship Tribunal for a review of the appointment of the NSW Trustee: Guardianship Act, s 25S. AOS decided not to pursue that option at this stage.

Legal framework

1. Before making a financial management order the Guardianship Tribunal must be satisfied, under s 25G of the Guardianship Act, that:

(1)   the person is not capable of managing his or her financial affairs, and

(2)   there is a need for another person to manage those affairs on the person's behalf, and

(3)   it is in the person's best interests that the order be made.

1. There was no dispute about the Tribunal's finding that a financial management order should be made. The only issue on appeal was whether the Guardianship Tribunal erred when it decided to commit the management of AOS's estate to the NSW Trustee. Section 25M provides that:

If the Tribunal makes a financial management order in respect of the estate (or part of the estate) of a person, the Tribunal may, by order:

(a) appoint a suitable person as manager of that estate, or

(b) commit the management of that estate to the NSW Trustee.

1. Anyone exercising functions under the Guardianship Act has a duty to observe the principles in s 4 including that the welfare and interests of the affected person are given paramount consideration.

The original application and the Guardianship Tribunal's decision

1. In its reasons the Guardianship Tribunal provided the following background to the application for a guardianship and a financial management order:

The applicant, [AOT] is the Manager of [a brain injury service]. He advised that he made the application for the appointment of a guardian because [AOS's partner] does not appear to understand the consequences of [AOS's] traumatic brain injury and is isolating her from services. There are concerns about her current care arrangements and her failure to attend medical appointments. He made the application for a financial manager because of concerns about [AOS's] ability to manage her money and legal matters related to her compensation claim.

1. After giving reasons for making a guardianship order and appointing the Public Guardian as AOS's guardian, the Guardianship Tribunal addressed the application for a financial management order. The Guardianship Tribunal decided that AOS was incapable of managing her affairs, that there was a need for another person to manage those affairs and that it was in AOS's best interests for a financial manager to be appointed: Guardianship Act, s 25G. The Tribunal then addressed the issue of who should be appointed as financial manager.

1. The Tribunal paraphrased s 25M, set out above at [8] above and gave the following reason for its decision to appoint the NSW Trustee:

The Tribunal took into account the conflict between the parties and, using the same reasoning it used to decide who should be appointed as [AOS]'s guardian, concluded that an independent, impartial financial manager should be appointed, namely the NSW Trustee and Guardian.

1. The reasons the Tribunal gave when deciding that the Public Guardian should be appointed as AOS's guardian were as follows:

Having regard to the conflict which exists between [AOS's mother] and [AOS's partner], and between [AOS's mother] and her daughter, the Tribunal decided to appoint the Public Guardian as [AOS's] guardian. The Public Guardian is better placed to make decisions on her behalf from a more objective perspective, after taking into account her views, those of her partner, relevant family members and health professionals.

Grounds of appeal

1. Given the change in AOS's circumstances only three grounds of appeal on a question of law were relied on at the hearing. Those grounds were that the Guardianship Tribunal:

(1)   failed to suggest an adjournment in circumstances where AOS's brother, who may have been a suitable financial manager, was not available to give evidence;

(2)   failed to follow the correct legal principles in relation to the appointment of a financial manager; and

(3)   gave inadequate reasons for the decision.

1. AOS also sought leave to appeal on grounds other than a question of law. AOS asked the Tribunal to set aside the Guardianship Tribunal's decision and to appoint her brother as the financial manager.

Failure to offer an adjournment

1. According to AOS, on the basis of the evidence before it, the Guardianship Tribunal should have identified AOS's brother as a suitable person to be the financial manager. In circumstances where he was not present and none of the parties had legal representation, the Tribunal should have offered an adjournment so that he could be questioned about his suitability for that role.

1. In the written submissions, AOS's solicitor expressed this ground in the following way:

Having regard to the Tribunal's view that it was not prepared to consider [AOS's brother] as a potential financial manager, it should have considered and decided whether an adjournment was appropriate to allow that to happen.

1. At the Guardianship Tribunal hearing AOS put forward her mother as the most suitable person to be the financial manager. She said that her mother was "very smart with money and she would only give us what we need. . ." (Transcript p 41, from line 29). AOS's partner agreed with that proposal and AOS's mother was happy to accept such an appointment but said that her eldest son was also a possibility "because he's very smart as well and quite capable" (Transcript p 43 from line 1).

1. The Tribunal knew that AOS's brother had considered seeking appointment as the financial manager. A memorandum prepared for the members by an employee of the Guardianship Tribunal dated 23 November 2012 indicates that AOS's brother was available by telephone. (AOS's representative told the Tribunal at the appeal hearing that this was not the case because he was overseas on his honeymoon.) The memorandum also indicates that AOS's mother would tell the Guardianship Tribunal if AOS's brother wanted to propose himself as guardian.

1. During the Guardianship Tribunal hearing the presiding member reminded AOS's mother of the evidence about the stress around decision-making for AOS since her partner has been involved in her life. The Tribunal member asked AOS's mother whether she thought that the same stress might be apparent when decisions needed to be made about her daughter's financial affairs. AOS's mother gave the following answer at p 43, line 29 - 40:

Yes. That's why I said to you that it may have been better for an outside person. That's why [AOS's brother] said he was quite happy to do that as well but I think when I spoke to [AOS's brother] about it, he had had a conversation with (the Rehabilitation Co-Ordinator of a Brain Injury Service) and (he) said that it would take quite a lot of his time, and he works full time. So he said that, you know maybe he would not have enough time to put into it, but I don't know how much time we would need to put into, you know, writing budgets and stuff like that.

Tribunal Member: The problem for us today is [AOS's brother] is not there to put a proposal to us personally because we would have to go on and ask some more questions even if . . you're putting your name forward, we have to come back and ask you some more questions.

1. The Guardianship Tribunal is obliged to offer an adjournment if failing to do so would deny an opportunity for a party to present his or her case. In EB & Ors v Guardianship Tribunal [2011] NSWSC 767, Hallen J said, at [62] that:

The Tribunal might be obliged to offer a self-represented party an adjournment, even if one was not sought, if that person would otherwise be disadvantaged in relation to the presentation of their case . .

1. This principle is an extension of the principle of procedural fairness that "a refusal to grant an adjournment can constitute a failure to give a party . . the opportunity of adequately presenting his case": Sullivan v Department of Transport (1978) 20 ALR 323 per Deane J; AJF v NSW Trustee and Guardian [2012] NSWADTAP 28 at [21].

1. It was never AOS's case that her brother should be appointed as financial manager. She nominated her mother and her mother agreed that she was a suitable person to be her daughter's financial manager. The memorandum to the members of the Guardianship Tribunal indicated that AOS's mother would tell the Guardianship Tribunal if AOS's brother wanted to propose himself as guardian. When asked about the stress involved in making financial decisions for her daughter, AOS's mother acknowledged that that was an issue and mentioned AOS's brother as a possible alternative. But she did not propose him as the financial manager or suggest that the Tribunal contact him at a later date to gauge his suitability. The Tribunal pointed out that AOS's brother was not at the hearing. Any proposal that he be the financial manager could not be discussed with him.

1. It was not incumbent on the Tribunal in the circumstances of this case to offer an adjournment to clarify whether or not AOS's brother wished to propose himself as the financial manager. By failing to offer an adjournment the Guardianship Tribunal was not disadvantaging any party in relation to the presentation of their case.

Failure to follow the correct legal principles

1. AOS submitted that the Guardianship Tribunal did not follow the principles for determining who should be the financial manager set out by Kirby P in Holt v Protective Commissioner (1993) 31 NSWLR 227 at 241-243. That case interpreted a now repealed provision which was essentially the same as s 25M. The parties urged Kirby P to provide guidelines to assist decision makers to decide whom to appoint as financial manager. Kirby P did not think it appropriate to confine that discretion by "rigid rules or even 'guidelines' expressed in general terms." The President made the point that the only guideline when exercising a discretionary power is to consider all relevant circumstances.

1. Kirby P went on at p 241 and 242 to set out some of the circumstances which may be relevant. His Honour described the points he made as a "framework" or "checklist" of considerations to be kept in mind. Kirby P noted that the exercise of a discretion is involved. Because that discretion is exercised in the context of a protective jurisdiction, the "abiding rule" is the achievement of the best interests of the person concerned. One of the checklist considerations Kirby P mentioned was that:

5 Ordinarily, a person who would face a conflict of interest and duty would not be appointed a manager of a protected person's estate. However, in some family situations, inter-related property interests may present such conflicts. Sometimes they will be more apparent than real. They do not necessarily present an absolute bar to appointment as a manager for otherwise this would exclude from consideration a range of family members in every other way appropriate

1. The words of Kirby P in Holt are not a substitute for the statutory discretion in s 25M. Failing to refer to or rigidly apply the 'guidelines' in that case does not necessarily constitute an error of law. When determining whether a decision maker has made an error of law in the process of exercising a discretion, the principles articulated by Evatt and McTiernan JJ in House v King [1936] HCA 40; (1936) 55 CLR 499 at 505 still apply:

If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

1. AOS did not identify any error of this nature in relation to the exercise of the Tribunal's discretion under s 25M. AOS submitted firstly that if conflict of interest was the reason the Guardianship Tribunal did not appoint AOS's mother as financial manager, it should have given her a chance to say how she would deal with any conflict. That is a procedural fairness point. Secondly, AOS submitted that the law in relation to who should be appointed as guardian is different from the law in relation to who should be appointed as financial manager. The same reasoning does not apply to both appointments.

1. In relation to the procedural fairness point, the Guardianship Tribunal did put to AOS's mother that it would be stressful for her to make financial decisions about AOS given the disagreements she has had with her partner. AOS acknowledged that making those decision would be stressful. She had a reasonable opportunity at that stage to say how she would deal with or overcome that stress.

1. In relation to the second point, it is the case that the provisions relating to the appointment of a financial manager and a guardian are different: Guardianship Act, s 25M and s 17. Under s 17:

(1) A person shall not be appointed as the guardian of a person under guardianship unless the Tribunal 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.

(2) Subsection (1) does not apply to the appointment of the Public Guardian as the guardian of a person under guardianship.

1. When making a continuing guardianship order, as the Tribunal did in this case (for a period of 12 months) the Tribunal must abide by s 15(3):

A continuing guardianship order appointing the Public Guardian as the guardian of a person under guardianship shall not be made in circumstances in which such an order can be made appointing some other person as the guardian of the person.

1. There is no equivalent provision in relation to the appointment of the NSW Trustee as financial manager. But in Holt v Protective Commissioner (1993) 31 NSWLR 227 Kirby P described the equivalent provision to s 25M as providing "first that a 'suitable person' should be appointed as manager of the estate of a protected person and only secondly that the management of that estate should be committed to the Protective Commissioner." Kirby P described this as "a sensible hierarchy of choices." In effect, this means that the Guardianship Tribunal should look first to the possibility of a private financial manager and only where a suitably competent person cannot be found because, for example, there is a real conflict of interest, should the NSW Trustee be appointed.

1. While not identical, the provisions relating to the appointment of a guardian and that of a financial manager are similar. The Guardianship Tribunal applied the same reasoning to the appointment of the NSW Trustee as it had applied to the appointment of the Public Guardian. That reason was "conflict between the parties." The reasoning in relation to the appointment of a guardian also identified "the conflict which exists between [AOS's mother] and [AOS's partner], and between AOS's mother and AOS. The Tribunal added that the Public Guardian is better placed to make objective decisions.

1. The evidence in relation to the nature of the conflict between AOS's mother and AOS's partner in the context of the guardianship application was described as follows:

Referring to arguments with her daughter, [AOS's mother] advised that she was angry because [AOS's partner] was refusing to allow her daughter to see her GP for a depo provera injection. [AOS's partner] had previously attended the doctor's surgery and wanted to be present while her daughter was having a pap smear and breast examination. He is said to keep [AOS] up late at night and she cannot spend time with her parents. She is concerned that there is now a 'rift' in her relationship with her daughter because of [AOS's partner's] involvement in her daughter's life. She provided details of threats [AOS's partner] had made recently to her family and his attempt to prevent her daughter from attending a family wedding. She stated her daughter now fatigues easily and that [AOS's partner] has not understanding of her condition and "stresses her out".

1. We understand from the Guardianship Tribunal's decision that this evidence was also the evidence it relied on to support its finding that AOS's mother had a conflict of interest which made her unsuitable to be appointed as the financial manager. The Guardianship Tribunal did not refer to any other relevant evidence in its reasons.

1. When determining who to appoint as a guardian and who to appoint as a financial manager, the Guardianship Tribunal is exercising a discretion. AOS did not identify how the Guardianship Tribunal erred by exercising its discretion in each case based on the same evidence. We are unable to detect an error in the Guardianship Tribunal's reasoning.

Inadequate reasons

1. AOS submitted that the Guardianship Tribunal had given inadequate reasons for its decision to appoint the NSW Trustee. Those reasons are set out at [12] and [13] above.

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). But 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": Administrative Decisions Tribunal 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; That duty applies to tribunals as well as courts: Absolon v NSW TAFE [1999] NSWCA 311 at [66].

1. 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. Rather than resolving a dispute between parties, the Tribunal's jurisdiction is essentially protective with the focus being on the person who is the subject of an application for a guardianship or financial management order. But the Tribunal must make findings of fact based on relevant evidence which is referred to in the decision. The finding of fact, that AOS's mother had a conflict of interest which made her an unsuitable financial manager, was supported by the same evidence relied on to support the appointment of the Public Guardian. The Guardianship Tribunal did not explain how that evidence was relevant to the appointment of a financial manager, as distinct from a guardian. While it could have explained its reasons more fully, they were adequate.

Leave to extend to the merits

1. AOS may appeal as of right on any question of law but leave is required before an appeal on any other ground can proceed.

1. The ADT Act does not contain any guidance on the relevant matters to be taken into account in determining whether leave should be granted. The Supreme Court has provided some guidance on this question in the cases of K v K [2000] NSWSC 1052; S v S [2001] NSWSC 146 and Re R [2000] NSWSC 886 (17 August 2000). Those cases interpret s 67 of the Act which is the equivalent provision in relation to appeals from Tribunal decisions to the Supreme Court. In K v K, 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 under s 67', but went on to make a number of observations on this point: see para [10]-[15]. After considering the relationship between the Court and the Tribunal, Young J observed at [15]:

It would seem to me that s 67 of the Guardianship Act operates so that broad questions of administration and policy and the applicability of policy to individual cases, even if they are not questions of law, may well be subjects on which the Court will grant leave to appeal. On the other hand, 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. AOS's solicitor submitted that the decision was unfair because AOS's mother was a suitable person and should have been appointed.

1. The Guardianship Tribunal decided, as a question of fact, that AOS's mother was not a suitable person to be the financial manager. That conclusion was not unorthodox or unfair. It was based on at least some probative evidence. AOS has now nominated her brother as the most suitable person to perform that role. Because the circumstances have changed, the appropriate course is for AOS to apply to the Guardianship Tribunal for a review of the appointment of a manager under Part 3A, Division 3 of the Guardianship Act.

Orders

Leave to appeal on grounds other than a question of law is refused.

The Guardianship Tribunal's decision to appoint the NSW Trustee as AOS's financial manager is affirmed.

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Decision last updated: 22 July 2013