BBX v NSW Trustee and Guardian

[2013] NSWADTAP 51

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	BBX v NSW Trustee and Guardian [2013] NSWADTAP 51
Hearing dates:	4 November 2013
Decision date:	14 November 2013
Jurisdiction:	Appeal Panel - External
Before:	Magistrate N Hennessy, Deputy President P Molony, Judicial Member Dr B Field, Non-judicial member
Decision:	The appeal is dismissed.
Catchwords:	APPEAL - decision of Guardianship Tribunal to make guardianship and financial management orders - whether applicant before Guardianship Tribunal had standing to made the applications and whether Guardianship Tribunal erred by relying on old medical evidence
Legislation Cited:	Guardianship Act Administrative Decisions Tribunal Act 1997
Category:	Principal judgment
Parties:	BBX (Applicant) BBV (Respondent) NSW Trustee and Guardian Guardianship Tribunal
Representation:	BBX (Appellant in person) BBY (Respondent in person)
File Number(s):	138007
Publication restriction:	S126 of the Administrative Decisions Tribunal Act 1997 applies
Decision under appeal	Citation: 2013/5400; 2013/5401 Date of Decision: 2013-08-21 00:00:00 File Number(s): C/24098

reasons for decision

Introduction

1. BBZ has appealed against two decisions of the Guardianship Tribunal made on 21 August 2013. The first decision was to make a guardianship order in relation to him and to appoint the Public Guardian as his guardian for three months. The second decision was to make a financial management order in relation to his estate and to appoint the NSW Trustee and Guardian as his financial manager for three months. BBZ did not appear at the hearing when these orders were made. BBV, a long-term friend of BBZ's but from whom she is now estranged, was the applicant in the Guardianship Tribunal proceedings.

1. As well as appealing against the Guardianship Tribunal's orders, BBZ applied for an interlocutory order to prevent the Guardianship Tribunal's orders from having any effect until this Tribunal determined his appeal: Administrative Decisions Tribunal Act 1997 (ADT Act), s 118B(4). That application was refused on 4 November 2013. BBZ and BBV both appeared in person. It was necessary to have a sheriff present to ensure that they did not abuse or threaten one another. I note that BBZ applied for an apprehended personal violence order against BBV on the 12 August 2013. There was no evidence that such an order has been granted. BBV says she has applied for an apprehended violence order against BBZ. We do not know the status of that application.

1. Given the extreme animosity between BBZ and BBV exhibited during the application for an interlocutory order, we chose to determine the substantive application on the basis of the Notice of Appeal and written submissions. We are satisfied that the issues can be determined adequately in the absence of the parties: ADT Act, s 76. We are also mindful of the fact that the orders against which BBZ has appealed are due to expire on 21 November 2013. The Guardianship Tribunal has re-listed the matter to determine whether further orders should be to made. That hearing is scheduled for 18 November 2013.

1. In those circumstances, directions were made for the parties to file any further submissions or documents in relation to the substantive appeal by 11 November 2013. None were filed. We indicated that we would provide written reasons for our decision before 15 November 2013.

Parties and submissions

1. Neither BBZ or BBV had legal representation. The NSW Trustee and Guardian advised that it did not wish to present a case or make submissions. The Guardianship Tribunal elected to be a party but, apart from providing relevant documents, did not make play any role in the proceedings.

Jurisdiction

1. The Administrative Decisions Tribunal has jurisdiction to hear this external appeal: Guardianship Act 1987 (Guardianship Act), s 67A(1) and ADT Act, s 118A. 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). In his notice of appeal BBZ said that the grounds of his appeal were questions of mixed law and fact. He said that the Guardianship Tribunal's orders were made on irrelevant and improper grounds.

Grounds of appeal

1. Based on the material filed by BBZ, the grounds of appeal appear to be that:

(1)   BBV's application to the Guardianship Tribunal was not bona fide and she is suffering from a mental illness; and

(2)   the Guardianship Tribunal based its decision on medical opinion that is "very old and most certainly outdated."

1. The fact that the Guardianship Tribunal determined the application in his absence was not a ground of appeal.

1. We note from what was said during the application for an interlocutory order that BBZ is most concerned about the fact that his Disability Support Pension will no longer be paid directly into his account. He asks that the appeal be allowed on compassionate grounds because of the financial difficulties he will face.

Bona fides and 'standing'

1. A person who has "a genuine concern for the welfare of the person" is entitled to apply for a guardianship and/or a financial management order: Guardianship Act, s 9(1)(d) and s 25I(1)(b). BBV applied to Guardianship Tribunal for guardianship and financial management orders in relation to BBZ on 4 July 2013. She describes herself in those applications as a "long standing friend." The Guardianship Tribunal did not make an express finding that BBV was entitled to apply for the orders but we assume that the Tribunal was satisfied that BBV had a "genuine concern" for BBZ's welfare.

1. A decision that a person has standing to make an application to the Guardianship Tribunal under s 9 or s 25I is not a decision that can be appealed to this Tribunal: Guardianship Act s 67A. Appealable decisions are defined in s 67A of the Guardianship Act and a decision that a person has a genuine concern for the welfare of the person is not a decision that can be the subject of appeal to this Tribunal. Consequently we have not power to hear an appeal against that decision.

Old medical evidence

1. In deciding whether it should make a guardianship order the Guardianship Tribunal had to determine whether BBZ has a disability which prevents him from being able to make important life decisions: Guardianship Act, s 14 and s 3. The Tribunal had before it nine medical reports from psychiatrists and others bearing various dates from 2000 to 2011. The Guardianship Tribunal found that:

The information contained in these reports reveals that BBZ has been diagnosed with schizophrenia. He has been incarcerated on a number of occasions, having come into contact with the criminal justice system. He has a history of using "ice" (meth amphetamine). BBZ has also been a victim of abuse. His first contact with the judicial system was as a juvenile.

Numerous reports refer to BBZ's grandiose delusions and a lack of insight into his mental illness. He expressed the view to Dr Roberts that he is the centre of a conspiracy involving the State. Dr Roberts diagnosed a paranoid schizophrenic illness.

Dr Adams referred to an earlier report of Dr Wilcox, forensic psychiatrist, not provided to the tribunal, dated 28 July 2008. Dr Wilcox said that BBZ has severe disturbance in his personality, with a paranoid personality disorder with antisocial traits.

1. Because the medical evidence was uncontested the Tribunal accepted it and found that BBZ has a mental illness which prevents him making important life decisions. BBZ appealed on the basis that the medical reports are out of date. The Guardianship Tribunal provided this Tribunal with copies of the reports.

1. BBZ sought to tender a 1993 medical report from Dr James Lahood. That report stated that, in his opinion, BBZ "has recently improved in respect to his behaviour disturbances." We did not accept this report into evidence because a medical report written 20 years ago which says nothing about the nature of BBZ's illness at that time, is irrelevant to the issue of the nature and extent of any disability BBZ may have today.

1. We accept that all the medical evidence on which the Guardianship Tribunal relied was at least 2 years old. The Guardianship Tribunal did not make an error of law by relying on that evidence because it was reasonable to assume, given BBZ's documented history of mental illness, that his diagnosis has not changed in the last 2 years. The Guardianship Tribunal also heard evidence from BBV that she has noticed a rapid decline in BBZ's mental health in recent times. She told the Tribunal that BBZ was mentally unwell and believes he needs urgent treatment. BBZ did not attend the Guardianship Tribunal or provide contrary medical evidence. The Guardianship Tribunal made an order for a relatively short period of time (3 months) to give BBZ the opportunity to provide further evidence, including further medical evidence.

1. BBZ has not identified a question of law and we are not satisfied that leave should be granted to hear an appeal against the merits of the Guardianship Tribunal's decision.

Order

The appeal is dismissed.

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Decision last updated: 14 November 2013