BD v Protective Commissioner

[2007] NSWADTAP 73

Appeal Panel - External

CITATION:

BD v Protective Commissioner & ors [2007] NSWADTAP 73

PARTIES:

APPELLANT
BD

FIRST RESPONDENT
Protective Commissioner

SECOND RESPONDENT
BJ

THIRD RESPONDENT
BL

FOURTH RESPONDENT
BS

FIFTH RESPONDENT
BT

SIXTH RESPONDENT
BK

DECISION MAKER
Guardianship Tribunal

FILE NUMBER:

078010

HEARING DATES:

9 November 2007

SUBMISSIONS CLOSED:

9 November 2007

 
DATE OF DECISION: 

18 December 2007

BEFORE:

Hennessy N - Magistrate (Deputy President); Millar J - Judicial Member; Green J - Non Judicial Member

CATCHWORDS:

Financial management order - review - Power of Attorney - review of

MATTER FOR DECISION:

Principal matter

FILE NUMBER UNDER APPEAL:

Guardianship Tribunal: C34383 Matter No: 2006/4423, 2006/4781, 2006/4780

DATE OF DECISION UNDER APPEAL:

04/23/2007

LEGISLATION CITED:

Guardianship Act 1987

CASES CITED:

R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149
Ansell v Wells (1982) 43 ALR 41
Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113
K v K [2000] NSWSC 1052
S v S [2001] NSWSC 146
Re R [2000] NSWSC 886

REPRESENTATION:

APPLICANT
B Winship, solicitor

FIRST RESPONDENT
Protective Commissioner

SECOND RESPONDENT
BJ

THIRD RESPONDENT
BL

FOURTH RESPONDENT
BS

FIFTH RESPONDENT
BT

SIXTH RESPONDENT
BK

DECISION MAKER
Guardianship Tribunal

ORDERS:

1. Leave to appeal on grounds other than a question of law is refused; 2. The Guardianship Tribunal’s decision dismissing the application for a financial management order is affirmed; 3. The Guardianship Tribunal’s decision dismissing the application for a review of an enduring power of attorney is affirmed.

Section 126 of the Administrative Decisions Tribunal Act 1997 applies to this decision.

Section 126 provides

(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.

REASONS FOR DECISION

Introduction

1 This appeal concerns a man in his early 80s, who we will refer to as BD, and his five adult children. There is a history of disputes between BD and some of his children and among the children themselves. Allegiances have changed over the years. Currently there are two camps, with two of BD’s sons on one side, and BD, the third son and the two daughters on the other side. BD is living with one of his daughters. We will refer to the two sons in the first camp as the first son and the second son. We will refer to the son in BD’s camp as the third son, to the daughter with whom he is living as the first daughter and to the other daughter as the second daughter. These descriptions do not relate to the ages of the adult children.

2 After his wife died, BD signed an enduring power of attorney in favour of his first son. He then moved in with him and paid for renovations to be carried out on his son’s house to make them suitable for him to live in. After BD had been living with the first son for a few months, he went to a nursing home for a week while his son was having a holiday. While he was in the nursing home various family members visited him. Before the first son was due to pick him up, BD left the nursing home with his third son and that son’s wife. BD has not returned to live with the first son. Instead, he now lives out of Sydney with his first daughter. There was considerable dispute among the parties about the circumstances in which BD left the nursing home but it is not necessary for the Appeal Panel to resolve those disputes. BD revoked the enduring power of attorney in relation to his first son and signed a new enduring power of attorney in favour of his third son and his wife.

3 Shortly after BD moved away to live with his first daughter, the first son applied to the Guardianship Tribunal for a guardianship order, a financial management order and a review of the new enduring power of attorney. The Tribunal dismissed all three applications. The first son has appealed against two of those decisions: the decision to dismiss the financial management application and the decision to dismiss the application for review of the enduring power of attorney. The Appeal Panel can hear appeals in relation to each of those decisions: Guardianship Act 1987, s 67A and Administrative Decisions Tribunal Act 1997 (ADT Act), s 118A. An appeal may be made as of right on any question of law or by leave on any other ground: ADT Act, s 118B(1). As well as appealing on questions of law, the first son sought leave to appeal against the merits of the Tribunal’s decisions.

Parties and representation

4 BD was represented by Mr Boulton of counsel. The first son was represented by a solicitor, Mr Winship. The remaining parties did not have legal representation. While the Protective Commissioner is also a party to the appeal, he chose not to play any role in the proceedings. The Tribunal itself is entitled to be a party to the proceedings: ADT Act, s 67(2B). The Tribunal elected to be a party and Ms Cho represented the Tribunal. In accordance with the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13 at 35, her role is limited to making submissions in relation to the powers and procedure of the Tribunal.

Guardianship Tribunal’s hearing and decision

5 The hearing. The hearing was initially set down for 18 October 2006 but was adjourned. One reason for the adjournment was so that the third son and his wife could obtain a neuropsychological assessment of BD as evidence of his current capacity. The third son and his wife apparently misunderstood the request and obtained a report from a geriatrician. Despite the absence of a neuropsychological report, the Tribunal went ahead with the adjourned hearing on 23 April 2007. The Tribunal said that the first son insisted that the hearing go ahead. The second son said that he was told by an investigation officer employed by the Tribunal that the Tribunal was very keen that the hearing go ahead even without a neuropsychological assessment.

6 Financial management application. The Tribunal identified the matters about which it needed to be satisfied before making a financial management order. The first matter is that BD is not capable of managing his financial affairs: Guardianship Act, s 25G(a). The Tribunal reviewed the medical evidence and the oral and documentary evidence of the parties and witnesses. The Tribunal spoke to BD privately because of concerns that he would not speak frankly in the presence of his children. The Tribunal then conveyed the substance of his evidence to the remaining parties and witnesses. On the basis of all the evidence, some of which was inconsistent, the Tribunal found that BD was capable of managing his financial affairs. Having made that finding it was not necessary for the Tribunal to consider whether the other matters about which it needed to be satisfied before making an order, had been fulfilled. The Tribunal dismissed the application.

7 Review of enduring power of attorney. The Tribunal decided not to review the enduring power of attorney made in favour of the third son and his wife: Powers of Attorney Act 2003, s 36(1). The reason for that decision was that BD had the capacity to understand and execute the enduring power of attorney.

Grounds of Appeal

8 Mr Winship, representing the first son, set out five grounds of appeal. The first four grounds relate to the dismissal of the application for financial management. The fifth ground relates to the decision not to review the enduring power of attorney. The grounds were that the Guardianship Tribunal erred in law by:

1. Not insisting on a neuropsychological assessment of BD. The medical reports from the geriatrician and BD’s current general practitioner were insufficient and should not have been preferred to the reports of Dr Park and Dr Datyner.

2. Not recognising the indicators of incapacity: it merely questioned BD in the absence of family members but did not specifically question him on the progression of his behaviour change i.e. memory, activities, visual/spatial ability, motor and mood.

3. Not understanding that BD has blatantly manipulated and mismanaged his family and finances by giving away at least $93,500 (first son: $33,500; first daughter: $50,000; and third son: $10,000.). He has played a demented and unfair ‘game’ of favouritism to the detriment of the second son and the second daughter and left his estate vulnerable to a future Family Provision Act 1982 application.

4. Not recognising the undue influence and unconscionable conduct of some family members. BD is the weaker party and the quality of his consent is questionable in the circumstances. His behaviour was irresponsible and unreasonable. It clearly put him at a special disadvantage and played right into the hands of some family members.

5. Not ruling that the current joint general powers of attorney document which appointed the third son and his wife is ill conceived. Perhaps it should have been ruled invalid, except for the fact that it may have been used to convey BD’s property. It is obvious in hindsight that no family member should have been given powers of attorney in the circumstances. BD’s solicitor should have advised his client accordingly.

9 Mr Winship elaborated on these grounds before the Appeal Panel, however he was unable to persuade us that any of them constitute a question of law. He did not submit that the Tribunal had mis-stated, misinterpreted or misapplied the law. Each of the grounds of appeal relates to the two primary findings of fact made by the Tribunal. Those primary findings of fact were that BD had capacity to manage his financial affairs and that he had the capacity to understand and execute the enduring power of attorney. The classic statement of the law on when a finding of fact can constitute an error of law was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision stands for the proposition that there is no error of law in making a finding of fact for which there was some evidence, even though the finding was "perverse" or contrary to the overwhelming weight of evidence: per Glass JA with whom Samuels JA agreed, at 155-156. While the evidence about BD’s capacity was conflicting, there was evidence to support the Tribunal’s finding.

10 After prompting by Mr Boulton and the Appeal Panel, Mr Winship submitted that the Tribunal had acted in a procedurally unfair way by questioning BD in private. Procedural fairness requires that at least the substance of any credible, relevant or significant document be disclosed to a party whose interests are affected: Ansell v Wells (1982) 43 ALR 41; Pilbara Aboriginal Land Council Aboriginal Corporation Inc v Minister for Aboriginal and Torres Strait Islander Affairs [2000] FCA 113 at 557. Since the substance of what BD said was conveyed to the parties, there is no breach of procedural fairness on that count.

11 The second son supported the first son’s grounds of appeal and added grounds of his own. Since he is a respondent to the appeal, and did not appeal himself against the Guardianship Tribunal’s decision, his role is limited to responding to the first son’s grounds of appeal. In any case, none of the grounds of appeal put forward by the second son constitute a question of law.

12 Since no question of law has been identified, we turn to consider whether to grant leave for the first son to appeal on any other ground.

Appeal on other grounds

13 The first son applied for leave to appeal on grounds other than a question of law, namely 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 (17 August 2000). Those cases interpret s 67 of the Guardianship 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 [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.
14 Mr Winship did not identify any broad questions of administration or policy that would justify the appeal being extended to the merits of the Tribunal’s decision. Nor are we persuaded that the Tribunal went about the fact finding exercise in an unorthodox manner or in a way that was likely to produce an unfair result. On the contrary, the Tribunal set out the evidence clearly and gave cogent reasons for accepting or rejecting that evidence. It was not unorthodox or unfair to proceed without the benefit of a neuropsychological assessment of BD. Although the Tribunal specifically requested such a report, when it was not provided prior to the second hearing, it had to weigh up the benefit of having such a report with the disadvantage to BD of further delaying the hearing. The Tribunal presumably regarded the detriment to BD of prolonging the proceedings as outweighing any benefit of adjourning to obtain a neuropsychological assessment. That was a rational and defensible decision. It does not justify giving leave to re-open the proceedings.

15 When there is conflicting medical and other evidence the Tribunal must decide which evidence it prefers. There was evidence to support the factual finding that the Tribunal made. Disagreement with the Tribunal’s decision does not justify giving leave to appeal on the merits.

16 The first son challenged the Tribunal’s procedure in questioning BD but failing to ask him about his behavioural changes including in relation to memory, activities, visual/spatial ability, motor and mood. It is not the Tribunal’s role to provide an expert assessment of BD’s capacity. Had it purported to do so, that may well have been an unorthodox and unfair way to proceed. It rightly confined its role to questioning BD and making a factual finding about his capacity based on his answers to those questions and all the other relevant evidence. That was an entirely orthodox and fair way to proceed.

17 The ground of appeal that BD had blatantly manipulated and mismanaged his family and finances by giving away money in an inequitable manner, is misconceived. The gifts BD made to the first son and the first daughter were for renovations to their homes to accommodate him and to buy his daughter a new car. Similarly the money BD gave to the third son was for funeral expenses. Those gifts were at least in part for his own benefit and the Tribunal did not regard them as constituting mismanagement or manipulation. That was a finding that was open on the evidence.

18 The ground of appeal that the Tribunal failed to recognise the undue influence and unconscionable conduct of some family members was also misconceived. The Tribunal came to a view of BD’s conduct that was entirely open on the evidence. There was nothing unfair or unorthodox about that finding.

19 Finally, the ground of appeal relating to the decision not to review the enduring power of attorney was that it was ill conceived. Mr Winship submitted that the power of attorney should have been held to be invalid. On the contrary, we consider that it was open to the Tribunal to make the finding that it did.

Orders

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

2. The Guardianship Tribunal’s order dismissing the application for a financial management order is affirmed.

3. The Guardianship Tribunal’s order dismissing the application for a review of an enduring power of attorney is affirmed.