Attorney-General v C
[2006] TASSC 14
•23 March 2006
[2006] TASSC 14
CITATION: Attorney-General v C [2006] TASSC 14
PARTIES:ATTORNEY-GENERAL FOR THE
STATE OF TASMANIA
v
C
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 7/2006
DELIVERED ON: 23 March 2006
DELIVERED AT: Hobart
HEARING DATE: 14, 17 March 2006
JUDGMENT OF: Underwood CJ, Evans and Blow JJ
CATCHWORDS:
Mental Health – Guardians, committees, administrator, managers and receivers – Other matters – Guardianship and Administration Board (Tas) – Whether president constituted the Board.
Guardianship and Administration Act 1995 (Tas), s76(1).
Aust Dig Mental Health [4]
REPRESENTATION:
Counsel:
Appellant: P Turner
Respondent: D F M Zeeman
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Butler McIntyre & Butler
Judgment Number: [2006] TASSC 14
Number of paragraphs: 14
Serial No 14/2006
File No FCA 7/2006
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v C
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
EVANS J
BLOW J
23 March 2006
Orders of the Court
That the appeal be allowed.
That the orders made by the Honourable Justice Slicer on 21 December 2005 be set aside.
That the cross-appeal be dismissed.
That appeal LCA 75/2005 be dismissed.
Serial No 14/2006
File No FCA 7/2006
ATTORNEY-GENERAL FOR THE STATE OF TASMANIA v C
REASONS FOR JUDGMENT FULL COURT
UNDERWOOD CJ
BLOW J
EVANS J
23 March 2006
These are our reasons for orders that were made at the conclusion of the hearing of this appeal on 17 March 2006.
This appeal concerns an application made to the Guardianship and Administration Board ("the Board") for a review hearing under the Guardianship and Administration Act 1995 ("the Act"), s67(c). On 9 June 2005 the Board made an order appointing the Public Guardian as the guardian of an elderly gentleman. On 31 October 2005, the respondent applied to the Board pursuant to s67(c) for the Board to hold a hearing to review that order. On 4 November 2005, the President of the Board wrote to the respondent's solicitors saying that the application had been referred to her for consideration, and that the Board exercised its discretion to decline to review the matter. It is common ground that she alone made the decision that the order in question would not be reviewed. She gave lengthy reasons for that decision. Under the Act, s76, an appeal may be brought to the Court from a determination of the Board. Relying on that section, the respondent filed a notice of appeal. There was a hearing before a judge, who subsequently ordered that the "determination of the Board" made on 4 November 2005 be set aside, and that the application made in accordance with s67 be remitted to the Board as constituted on 9 June 2005 for its consideration in accordance with law. The appellant appealed from that order. The respondent cross-appealed.
Following a discussion when this appeal was first before us, counsel for the appellant sought and obtained leave to amend the notice of appeal to add a new ground of appeal. That ground asserted that the learned primary judge had erred in law in upholding the appeal that came before him, in that there had been no determination of the Board within the meaning of s76, with the result that he had no jurisdiction to hear any appeal.
The Board's powers in relation to the review of its decisions are governed by ss67 and 68, which read as follows:
"67 Review of orders
The Board may at any time ¾
(a)of its own motion; or
(b)on application by, or on behalf of, a represented person; or
(c)on the application of any other person ¾
hold a hearing to review a guardianship order or administration order.
68 Order after review
(1) On a review under section 67, the Board may vary or continue a guardianship order or administration order subject to any conditions or requirements it considers necessary or the Board may revoke the order.
(2) The Board may make such further orders as it considers necessary in order to give effect to an order made under subsection (1)."
The right of appeal to the Court is provided for in s76, which begins with the following subsections:
"76 Appeals against decisions of Board
(1) An appeal to the Court from a determination of the Board may be brought by a person ¾
(a)who appeared, or was entitled under section 73 to appear, before the Board at the relevant hearing; or
(b)who, with leave of the Board, would have been entitled to appear before the Board at the relevant hearing; or
(c)in respect of whom the determination was made.
(2) An appeal may be brought ¾
(a)on a question of law, as of right; or
(b)on any other question, only with the leave of the Court."
The Board is established under s7, which provides as follows:
"7 Guardianship and Administration Board
(1) There is established a Board to be known as the Guardianship and Administration Board.
(2) The Board is constituted by ¾
(a)a President, who must be a qualified legal practitioner of not less than 7 years' standing; and
(b)at least 5 other members as may be necessary for the proper functioning of the Board, of whom one is to be Deputy President.
(3) Schedule 1 has effect with respect to members of the Board."
Schedule 1 does not confer any powers on the President. The procedure of the Board is governed by s11. There is nothing in s11 that specifically empowers the President to constitute the Board, but s11(3) provides as follows:
"(3) Schedule 2 has effect with respect to the procedure of the Board."
It is possible for a single member of the Board to conduct a hearing, and in that context to exercise the jurisdiction and powers of the Board, under Sch2, Pt1, cl 1, which reads as follows:
"(1) For the purposes of hearing applications under this Act, the jurisdiction, powers and duties conferred or imposed on the Board may be exercised by divisions of the Board.
(2) A division may consist of one or 3 members as may be determined in a particular case by the President.
(3) The members who are to constitute a division are to be appointed by the President who, in so doing, must have regard to –
(a)the nature of the matter to be considered by that division; and
(b)the need for the members of that division to have appropriate knowledge and experience; and
(c)the need for an appropriate member, to be appointed by the President, to act as chairperson of a division.
(4) Subclause (3) does not prevent the President from appointing himself or herself as chairperson of a division."
However, because of the opening words of cl 1(1), the power of a single member to exercise the jurisdiction and powers of the Board, as a one-member division of it, may only be exercised for "the purposes of hearing applications under this Act". What the President purported to do alone in this case was to exercise a power of the Board to decide not to conduct a hearing. A decision not to conduct a hearing is plainly not something done for the purpose of hearing anything.
The President, acting alone, may exercise certain administrative powers under Sch2, Pt2, which includes the following clauses:
"5 Policies and procedures of the Board
The Board may, with the approval of the President, adopt policies and procedures to be followed by the Board for members or employees of the Board in the administration of this Act.
6 Power of President to give directions
Where there is no policy or procedure adopted by the Board, the President may give such directions as he or she considers appropriate in respect of any matters arising in the administration of this Act by the Board."
According to the President's letter, the Board had adopted a policy not to conduct review hearings under s67 unless a party had provided "appropriate and cogent material sufficient to establish a significant change in the represented person's circumstances since the date of the order". The parties are in dispute as to whether that policy was lawful and appropriate. Even if it was a lawful and valid policy, made pursuant to cl 5, that of itself could not result in the decision of the President constituting a decision of the Board unless the President herself constituted the Board pursuant to some other provision.
In our view, cl 6 could not properly be interpreted as empowering the President to give a direction that a review hearing under s67 was not to be held in a particular case. That clause should be construed as empowering the President to give directions as to administrative and interlocutory matters, and not as empowering her to make a substantive decision to refuse an application for the exercise of a statutory power by the Board.
The respondent contends that when, as in this case, a person applies under s67(c) for the Board to review a guardianship order, the Board has no discretion to decline to conduct a review hearing. The appellant contends that it does have such a discretion in such circumstances. We have not heard argument as to that point, and therefore have not reached any conclusion in relation to it. However, it is clear that, if there is such a discretion, it can only be exercised by the Board, and cannot be exercised by the President alone, since there is nothing in the Act authorising any such decision to be made by the President alone. The President did not have any power to make the decision referred to in her letter of 4 November 2005. It follows that the respondent's application to the Board pursuant to s67(c) is still pending, has not been disposed of.
Counsel for both parties agreed that this was the position, and that the appropriate course was for us to order that the appeal be allowed; that the orders of the learned primary judge be set aside; that the cross-appeal be dismissed; and that appeal LCA 75/2005 be dismissed on the basis that it was not competent. We therefore ordered accordingly.
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