C v Smith
[2005] TASSC 129
•21 December 2005
[2005] TASSC 129
CITATION: C v Smith [2005] TASSC 129
PARTIES: C, M
v
SMITH, Anita
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 75/2005
DELIVERED ON: 21 December 2005
DELIVERED AT: Hobart
HEARING DATE: 8 December 2005
JUDGMENT OF: Slicer J
CATCHWORDS:
Administrative Law – Administrative tribunals – Functions of tribunals – Functions of board of review – Varying of existing orders.
Aust Dig Administrative Law [1096]
Guardianship and Administration Act 1995 (Tas), ss11(2), 67, 76.
Procedure – Supreme Court procedure – Tasmania – Appeals other than from judge of Supreme Court – Nature of appeal – Hearing to revise guardianship order – Determination set aside and remitted to originally constituted Board.
Aust Dig Procedure [282]
REPRESENTATION:
Counsel:
Appellant: D F M Zeeman
First Respondent: No representation
Second Respondent: P Turner
Solicitors:
Appellant: Butler McIntyre & Butler
First Respondent: Director of Public Prosecutions
Second Respondent: Director of Public Prosecutions
Judgment Number: [2005] TASSC 129
Number of paragraphs: 19
Serial No 129/2005
File No LCA 75/2005
M C v ANITA SMITH
REASONS FOR JUDGMENT SLICER J
21 December 2005
The appeal concerns the right of an interested person to require an administrative tribunal to consider an application to vary its original orders. The Guardianship and Administration Act 1995 ("the Act"), like many modern enactments, contains many general enabling provisions designed to accommodate competing principles but which make identification of the issues and their resolution more complex. The appeal follows an attempt by the appellant to limit access to his father C, aged 93 and a resident of a nursing home, and who is afflicted with Parkinson's disease.
The son, a resident of Hong Kong, was concerned about the access by another, said to be a long term friend of C, in visiting his father and to have C stay with her for brief periods of time. The disputation resulted in both seeking a guardianship order providing respectively, for access or restriction of visitors to C. Both applications, which included the appointment of different guardians, came before the Guardianship Board ("the Board"), consisting of three members, in June 2005, but at the commencement of the hearing, the appellant withdrew his application, although he continued as an interested person, to participate in the hearing and the advocacy of a desired outcome.
On 9 June 2005, the Board determined that it was satisfied that:
"… by reason of his dementia, the represented person is unable to make reasonable judgments in respect of his person and circumstances, particularly with respect to restriction of visitors. Accordingly he is in need of a limited guardian."
and ordered:
"1)That the Public Guardian be appointed as the represented person's guardian.
2)That the powers and duties of the guardian are limited to decisions about restricting visits to the represented person as may be necessary in his best interests and to prohibit visits by any person if the guardian reasonably believes that they would have an adverse effect on the represented person.
3)The powers of the guardian include but are not limited to:
(i) countermanding any previous instructions provided to [the aged care facility] regarding visitors to the represented person,
(ii) access to medical, psychological, psychiatric, personal or other information relating to the represented person as required to perform the functions described in paragraph 2 hereof, and
(iii) access to hospital and nursing home records as required to perform the functions described in paragraph 2 hereof.
4)That the order remains in place until 8 June 2008."
The appellant, dissatisfied with the outcome, raised concerns about the operation of the orders, which apparently caused the Public Guardian, on 29 August 2005, to seek the advice of an eminent specialist geriatrician who reported, by letter dated 2 September 2005, that following a meeting with C and discussions with nursing staff, he was of the opinion that the arrangements put in place following the decision of 9 June, accorded with C's wishes and were satisfactory. It would appear that there had been a "case conference" on 3 August 2005 at which varying concerns had been raised and discussed by the respective parties. The appellant persisted with his concerns and, on 31 October 2005, sought review of the June decision, pursuant to the Act, s67. The application, extending to 47 paragraphs, referred to matters of evidence said to have occurred since June, challenged both the extent of power exercised by the Public Trustee and her capacity to properly fulfil her duty, advanced new contentions and assertions expressed as concerns for the welfare of C, and sought the appointment of new guardians. The compendious form of the application obscures its basis. On this appeal, the appellant sought to describe the document as an application for variation of an existing order and rejected the contention that it, or this appeal, constituted a collateral attack on the original decision. Nevertheless it is difficult to discern from the document what it was that the appellant sought. The document headed "application pursuant to section 67" which was followed by "submissions on behalf of [the appellant] seeking a review of orders of the board dated 9th june 2005, pursuant to section 67 of the guardianship and administration act 1995" sought orders "from the Board":
"(1)That the orders of the Board dated the 9th day of June 2005 be and are hereby discharged;
(2)That until further order all access to [C] by any person be controlled by Dr R J Sutherland; and
(3)That the Board embark upon a further inquiry in relation to the appointment of an appropriate guardian for [C]."
and added:
"To assist the Board in that regard, it is submitted that consideration ought to be given by the Board in appointing Dr R J Sutherland and Dr D Dunbabin as joint guardians of [C], pursuant to section 20(6) of the Act. It is submitted that such appointments would be appropriate because as his general practitioner and a geriatrician who has become involved respectively, Dr Sutherland and Dr Dunbabin are the people who will have the day to day care of [C] and are the people most attuned to his immediate needs and are not linked to any party."
Common sense would suggest that the purport of the document was to have the originally constituted Board consider, with its existing knowledge, variation, even if substantial, of its original determination in the light of subsequent events. On the hearing of this appeal, counsel for the appellant disavowed that such was its purport. The response of the first respondent to the application adds to the difficulty in discerning the issues raised on this appeal. She exercised a statutory power of re-constituting herself as the Board, and on 4 November, determined that "… the Board exercises its discretion to decline to review this matter".
However, on 1 November 2005, the Public Guardian e-mailed the Registrar of the Board, requesting "advice and directions" pursuant to the Act, s31, and in her determination of 4 November, provided to the appellant by letter of the same day, the first respondent stated that it was appropriate "to invite the views of the interested parties and a hearing will be convened" and that the parties "will be notified of the hearing in due course" but that such hearing would be limited to the issue of C leaving the nursing home "overnight or for shorter periods". Following receipt of the determination of 4 November, the Public Guardian withdrew her "request for advice and directions". On 11 November, an "investigation and liaison officer" wrote to the appellant's solicitors advising that the Board "will not now proceed to hear this matter".
In her determination of 4 November, the first respondent stated:
(1)The policy of the Board was that in order to succeed in obtaining review:
"… a party must provide appropriate and cogent material sufficient to establish a significant change in the represented person's circumstances since the date of the order."
because of the principles relevant to "an end to litigation" and the need "to avert any attempt to use reviews as 'pseudo appeals' upon matters already fully considered by the Board".
(2)The application did not "reveal any significant deterioration in [C's] health and well being" and an injury suffered after the June orders was "consistent with his age and state of health as discussed at the hearing."
(3)The orders as originally framed "were reasonably broad and assumed a level of discretion" that permission for C to leave the nursing home was not contrary to the terms of the orders and to "The extent to which the Public Guardian has acted outside of the guidance in the statements of reasons is not so significant as to warrant the holding of a review".
(4)The advice of the examining physician of 2 September suggested no significant change in circumstances and that:
"Nothing presented in the application to review reveals any significant change in circumstances or any matter that would indicate that [C's] best interests are not served by the continuation of the order appointing the Public Guardian until it lapses on 8 June 2008."
The first respondent was not relying on her powers as President of the Board as originally constituted, but as a Board separately constituted in accordance with the Act, s7, Sch2, PtI. Neither counsel contended other than the first respondent had validly appointed herself as a Board for the purpose of the determination, and for the purpose of this appeal, I will accept the contention. I have no material concerning the number of appointments made to a Division relevant to this matter, or whether one person who is a member of a Division may replace an existing Board of three which has embarked on a hearing. However, the position of the first respondent as a separately constituted Board permits the following possibilities:
(1)The Board had considered the new material and determined that it did not warrant variation in an exercise of discretion.
(2)The Board had considered the new material and had decided that it did not need to reconvene a hearing by it or by a Board differently constituted.
(3)The Board had determined that the new material showed no change of circumstances and as such did not warrant a hearing since the result would be the same. Possibility (3) assumes that the test applied was that "even if accepted the evidence could not establish change".
(4)The material supportive of the claims of "exceeding power" or "failure to comply" on the part of the Public Guardian was not capable of establishing a basis for replacement of the guardian.
The reasons for determination contain a mixture of fact, law, statement of role and conclusion of outcome, which, in turn, give rise to differing principles of administrative law. From such an admixture of the seeds of apple, orange and acorn grafted to the requirements of the Act, s11(2) and (3), a mighty hybrid tree has grown.
The notice of appeal claims error in that:
"2.1… the Respondent erred in law in determining that the Respondent had a discretion to refuse the application.
2.2… the Respondent erred in law in determining that the policy of the Board enabled the Respondent to refuse the application.
2.3… the Respondent erred in law in determining that the application was 'pseudo appeal' from the orders.
2.4… the Respondent erred in law in determining that the nature of the application constituted matters already fully considered by the Board.
2.5… the Respondent erred in law in determining that the actions of the Public Guardian as disclosed in the application are not contrary to the orders."
Many permutations arise from those grounds. The second respondent raises another, namely whether the appellant has standing to bring the appeal. I will attempt to avoid the labyrinth. One problem is a consequence of the employment of broad and enabling terms in modern legislation. Parliament's use of wide legislative terms and statements of purpose is understandable, but requires greater attention to questions of "discretionary exercise" and application of administrative principles, (Commissioner for Superannuation v Hastings (1986) 70 ALR 625; Australian Telecommunications Commission v Bartley (1988) 84 ALR 261).
The Act, s67, relevantly provides that:
"The Board may at any time ¾
…
(c) on the application of any other person ¾
hold a hearing to review a guardianship order or administration order."
The section is neither as permissive as counsel for the Attorney-General contends, nor should the word "may" be construed as mandatory (cf Barrenger v Coward [1965] Tas SR 243; Grunwick Processing Laboratories Ltd v Advisory Conciliation and Arbitration Service [1978] AC 655; Director of Public Prosecutions (ACT) v Hiep Huu Le (1998) 156 ALR 110; Lamb v Moss (1983) 49 ALR 533). The status of "any other person" would not extend to a stranger, nor the Board permitted to arbitrarily reject review in the face of fraud or necessity. The section is subject to the general requirements of equity, good conscience and the rules of natural justice imposed by the Act, s11(2). A decision made under the Act, s67, is susceptible to judicial review in accordance with the provisions of the Judicial Review Act 2000. Here the appellant has not sought recourse to that legislation, but relies on the Act, s76. Review may take a number of forms, but s67 requires the conduct of a hearing if the interests of others is involved. Here an interested person had requested review seeking variation which would be subject to opposition. Here the appellant was originally an applicant and became a person to whom the Act, s73(2)(a) and (b), applied and who had in fact been represented at the original hearing. It is not necessary to determine, whether for the purpose of standing and the Act, s73, he is an original applicant in the s67 proceedings or a person to whom s73(2) applied since, on either approach, he comes within the confined ambit of ss67(c), 69 and 73(2)(ii).
On the hearing of this appeal, counsel for the second respondent advanced four propositions, namely:
(1)If there is a discretion under the Act, s67, for the Board not to hold a hearing, the appeal is incompetent as the appellant does not have standing under s76. The contention is rejected. The appellant is a person to whom the Act, s76(1)(a) applies, and wrongful exercise of discretion by the administrative tribunal can constitute an error in law (Ward v Williams (1955) 92 CLR 496) since an enabling provision might in some circumstances impose a duty, as well as confer a power, (The Metropolitan Company of Sydney Limited v The Australian Coal and Shale Employees' Federation (1917) 24 CLR 85). Insofar as it is necessary, I would, in accordance with the Act, s76(2)(b), grant leave for the determination of "other question(s)" raised by the appellant.
(2)If a discretion exists and the appellant has standing, grounds 2.2 to 2.5 have not been made out.
(3)If no discretion exists, the appeal remains incompetent because the appellant does not come within the class of persons provided for, since the Act, s76, is predicated upon a hearing having been held.
(4)Any relief available to the appellant ought be confined to remission of the matters to the Board for hearing.
The difficulty lies with the reasons for determination published by the first respondent. It is clear that she regarded the application as one seeking the reconvening of the Board as originally constituted. She constituted herself as a separate board for the purpose of consideration of that application, rather than, as President, referring it to the three members of the Board, which included herself, for a decision limited to whether to conduct a further hearing. She commenced her consideration with an analysis of whether the application satisfied the threshold test of "new material" or changed circumstances. Assuming, for the purpose of this appeal, that she was entitled to do so as a separate board, she then addressed the merits, or otherwise, of the application. In doing so, even if unintentionally, she assumed two different roles, namely those of:
(1)A separate board which had applied the threshold test and concluded that the application, on its face, did not establish a basis for reconvening the original Board.
(2)A separate board which had considered the extensive material contained in the application and determined that it lacked merit or cogency.
Differing principles of administrative law might apply depending on the role performed by the "decision-maker". There remained the requirements of the Act, ss6 and 11(2). In determining that the Public Guardian had not acted outside the terms of the order, that the report of the reporting physician confirmed the interests of C, rejecting the import of the "new material" and change of circumstances and the specific finding concerning the injury, the first respondent was exercising dual functions. That duality makes it impossible for this Court to properly determine the appeal. The Act, s67, affords discretion in the holding of "a hearing to revise a guardianship order", but it must be exercised in accordance with administrative principles. Determination of an application to review on the merits of the case might not necessarily involve a further hearing, but is subject to the requirements of the Act, s11(2). The latter course might involve findings of fact by a board, as here, differently constituted, although experience suggests that in any consideration of "changed circumstances" the original tribunal would be the preferable venue.
Here the refusal reflected a mixture of policy considerations, assessment of the threshold test, and findings of fact of events subsequent to the original orders.
Ground 1 is not made out. It is not necessary to further consider the import of grounds 2.3, 2.4 and 2.5, and ground 2.2 will be upheld. In accordance with the Act, s76(4), the determination of the Board pronounced on 4 November 2005 is set aside. I have considered whether the matter ought be remitted to the original, or reconstituted, Board and rather than have further delay or challenge, direct that the application for a further hearing be remitted to the Board as originally constituted. That Board is not required to conduct a further hearing, but to consider whether or not it should do so on the basis of the material supplied on behalf of the appellant.
Orders
(1) That the determination of the Board made on 4 November 2005 be set aside.
(2)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.
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