AR v Public Guardian

[2007] NSWADTAP 56

Appeal Panel - External

CITATION:	AR v Public Guardian & ors [2007] NSWADTAP 56
PARTIES:	APPELLANT AR FIRST RESPONDENT Public Guardian SECOND RESPONDENT Protective Commissioner THIRD RESPONDENT Jennifer Taylor FOURTH RESPONDENT AS DECISION MAKER Guardianship Tribunal
FILE NUMBER:	078007
HEARING DATES:	17 August 2007
SUBMISSIONS CLOSED:	17 August 2007
DATE OF DECISION:	5 October 2007
BEFORE:	Britton A - Deputy President; Leal S - Judicial Member; Field B - Non Judicial Member
CATCHWORDS:	Financial management order - making - Guardianship order - making
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	C/35163
DATE OF DECISION UNDER APPEAL:	04/23/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Guardianship Act 1987
CASES CITED:	JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
REPRESENTATION:	APPELLANT L Critchley, solicitor FIRST RESPONDENT No appearance SECOND RESPONDENT No appearance THIRD RESPONDENT No appearance FOURTH RESPONDENT No appearance DECISION MAKER E Cho, solicitor
ORDERS:	Appeal dismissed

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

1 The appellant, whom we will refer to in these reasons by the pseudonym ‘AR’, is a 65 year old woman who has a long history of bi-polar mood disorder. She appeals against a decision of the Guardianship Tribunal, handed down on 23 April 2007, in which the Tribunal appointed her son to act as her guardian for a period of 12 months and also to manage her financial affairs, subject to the supervision of the Protective Commissioner (ss 14 and 25E of the Guardianship Act1987).

2 At a directions hearing held on 9 July 2007, which was attended by AR and her son, a representative was appointed under s 71(4A) of the Administrative Decisions Tribunal Act 1997 to represent AR in these appeal proceedings.

3 This appeal was heard on 17 August 2007. Solicitor, Ms Lee Critchley, from the Aged Care Rights Service, represented AR. Ms Esther Cho appeared for the Guardianship Tribunal. No other respondent appeared.

4 All references in these reasons to ‘the Tribunal’ are to the NSW Guardianship Tribunal.

Jurisdiction

5 An appeal against a decision of the Guardianship Tribunal must be filed within 28 days or within such time as the Appeal Panel may allow (s 118B(2) of the Administrative Decisions Tribunal Act 1997 (‘ADT Act’)). The Appeal was lodged out of time. With the consent of all parties, the Appeal Panel allowed the Appeal to proceed.

6 An appeal against a decision of the Guardianship Tribunal may be made as of right on any question of law, or by leave of the Appeal Panel, on any other grounds: s 118B(1) of the ADT Act.

Notice of Appeal

7 In the Notice of Appeal filed on 18 June 2007, AR indicated that she was appealing on the basis of an ‘error of law’. In answer to the question, ‘Do you wish to appeal on other grounds?’ AR answered ‘No’.

8 The Notice of Appeal does not identify any alleged error of law. It would appear from the handwritten notes attached to the Notice of Appeal, that AR decided to bring the appeal because she disagreed with the central finding of the Tribunal, namely that she was a person who, because of a disability, was incapable of managing her person and financial affairs. We note that AR challenged the Tribunal’s decision to make guardianship and financial management orders, but not the decision to appoint her son to manage her estate and act as guardian.

9 In its Reasons for Decision the Tribunal summarised the observations and opinions of the witnesses and parties who participated in the hearing. In the Notice Of Appeal, AR challenged many of these opinions including that she:

Had difficulties living independently;

Was at times at risk from her boarder of 20 years who, it is alleged, often blacks out from alcohol use, refuses medical treatment and is heavily dependent on AR;

Presents with mania, religious delusions and elevated moods on regular admission to hospital for psychiatric treatment;

Requires increased support and supervision;

Struggles with learning new tasks and managing multiple tasks;

Would benefit from long-term, supported accommodation;

May suffer from dementia;

Is susceptible to suggestion and pressure from others, including the boarder, and this could render her ‘financially vulnerable’.

10 In contesting the Tribunal’s ultimate conclusion that she was partially incapable of managing her own affairs, AR pointed out that she had ‘kept house’ for over 50 years and believed she was capable of continuing to do so. She also challenged the finding that she was unable to manage her financial affairs and emphasised that her house had been paid off and she was debt-free.

Question of law?

11 Ms Critchley advised the Appeal Panel that, in preparation for these proceedings, she had interviewed AR. AR advised Ms Critchley that she had no complaints with the manner in which the Tribunal conducted the proceedings and, as far as she was concerned, she had been dealt with fairly, had an opportunity to put her views and felt she was listened to.

12 Ms Critchley advised that she was unable to identify an error of law.

13 We have reached the same conclusion. There is nothing to indicate in its Reasons for Decisions or on the material before us that the Tribunal miscarried in its fact-finding task or, in the application of the relevant law. The Reasons are adequate. There is nothing before us to indicate that AR was denied procedural fairness and nor is this asserted. Nor is there anything to indicate that that the Tribunal erred in the manner in which it conducted the proceedings.

Any other grounds?

14 Section 118B(1) of the ADT Act provides that an appeal from a decision of the Guardianship Tribunal may be made as of right on any question of law or by leave of the Appeal Panel on any other grounds. In JT and Anor v Protective Commissioner & Ors [2004] NSWADTAP 13, the Appeal Panel (differently constituted) discussed (at [32]) the factors to be taken into account in determining whether the discretion to grant leave should be exercised:

Having decided that the Tribunal made no error of law, the Appeal Panel's task is to determine whether leave should be given to appeal against the merits of the Tribunal's decision. 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. Those cases interpreted s 67 of Guardianship Act 1987 which is the equivalent provision to s 67A 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.

15 Ms Critchley submitted that for leave to be extended to the merits the Appeal Panel would need to be satisfied that the Tribunal approached its fact-finding task in an unorthodox or unfair fashion leading to an error in its decision. She was of the view that the Tribunal had followed its ‘regular procedure’; the evidence obtained from experts who had dealings with AR was relevant and credible to the issues to be decided.

16 We accept that submission. From the material before us there was no apparent shortcoming in the way the proceedings were conducted or the manner in which the Tribunal conducted its fact-finding role or applied the law.

17 In our opinion the Tribunal carefully weighed the evidence favouring AR’s assertion that she was not a person in need of a guardian and remained capable of managing her financial affairs. Given the uncontroverted medical evidence of AR’s deteriorating condition, coupled with recent examples of imprudent financial decision making and the evidence of AR’s decreasing ability to manage unassisted at home the ultimate decision reached by the Tribunal could not be described as ‘manifestly unreasonable’ (see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, p 41 per Mason J).

18 For these reasons we are not persuaded that this is an appropriate case to exercise our discretion to grant leave for the Appeal to proceed.

Order

Appeal dismissed.