Daynes v Public Advocate
[2005] VSC 485
•14 December 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 8432 of 2005
IN THE MATTER of the Guardianship and Administration Act (Victoria) 1986
| MERLE DAYNES | Appellant |
| v | |
| THE PUBLIC ADVOCATE | Respondent |
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JUDGE: | SMITH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 November 2005 | |
DATE OF JUDGMENT: | 14 December 2005 | |
CASE MAY BE CITED AS: | Merle Daynes V The Public Advocate | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 485 | |
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Guardianship – person under disability - re-assessment – application to revoke guardianship order.
VCAT – appeal – questions of law
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr. A. G. Uren Qc And Mr. J. Levine | Isaac Brott & Co. |
| For the Respondent | Ms. M. Wall | Office Of The Public Advocate |
HIS HONOUR:
Appeal
The Appellant, Merle Daynes, has appealed pursuant to s. 148 of the Victorian Civil and Administrative Tribunal Act 1998 (“VCAT Act”) against an order made by VCAT on 5 August 2005 in its guardianship jurisdiction. The Senior Master gave leave to appeal on 23 September 2005.
Background to the Appeal
Ms. Daynes is aged approximately 80 years. In December 2004 she was admitted to the Austin Hospital following a fall at her home. Because of concern about her perceived condition at that time, an application was made in the Guardianship list of VCAT and a Guardianship Order was made on 1 February 2005 appointing the Public Advocate a limited guardian with powers and duties to make decisions concerning accommodation, medical or dental treatment or other health care and access to services. It should be noted that at that time, and for some years earlier, the financial affairs of Ms. Daynes had been handled by Equity Trustees Limited pursuant to an enduring power of attorney.
The limited guardianship Order was reassessed on 17 February 2005 when the following order was made:
“The Tribunal is satisfied that the proposed represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.
The Tribunal orders that:
1.The Public Advocate, Office of the Public Advocate 5/436 Lonsdale Street, MELBOURNE 3000 VIC, be appointed limited guardian of the represented person with powers and duties:
to make decisions concerning accommodation
to make decisions concerning medical or dental treatment or other health care
to make decisions concerning access to services.
2.The Tribunal approves delegation by the Public Advocate of the Public Advocate’s powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
3.This guardianship order be reassessed no later than 17 August 2005.
4.The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
5.This order shall continue to have effect until further order of the Tribunal.
6.The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.”
Pursuant to the direction for reassessment, a reassessment took place on 5 August 2005. Also returnable on that day were applications filed by Mr Brott seeking revocation of the enduring power of attorney and reassessment of the guardianship order.
Following the hearing on 5 August 2005, the following Order was made:
“Having reassessed the guardianship order the Tribunal makes the following order:
The Tribunal is satisfied that the represented person has a disability; is unable by reason of that disability to make reasonable judgments about their person or circumstances; and needs a guardian.
The Tribunal is also satisfied on the basis of all medical and other evidence provided to the Tribunal that the purported revocation by the represented person on 26 July 2005 of all powers of attorney that may have been granted, which would include the enduring power of attorney granted to Equity Trustees Limited on 25 May 1995, is invalid on the grounds that the represented person did not have the capacity to revoke the power previously granted.
The Tribunal orders that:
1.The Public Advocate, Office of the Public Advocate 5/436 Lonsdale Street, MELBOURNE VIC 3000, be appointed limited guardian of the represented person with powers and duties:
to make decisions concerning accommodation
to make decisions concerning medical or dental treatment or other health care
to make decisions concerning access to the represented person
to make decisions concerning access to services
2.The Tribunal approves delegation by the Public Advocate of the Public Advocate’s powers and duties as guardian of the represented person to an officer or employee employed in the office of the Public Advocate.
3.This Guardianship order be reassessed no later than 05 August 2008.
4.The guardian shall, no later than 3 business days prior to the date on which this order is to be reassessed, provide to the Tribunal a written report concerning the represented person and decisions made by the guardian on behalf of the represented person.
5.This order shall continue to have effect until further order of the Tribunal.
6.The guardian shall immediately notify the principal registrar in writing of any change of address of the represented person or the guardian.
The represented person, the applicant, or any other person, may apply to the Tribunal for a reassessment of this order at any time.
It is from this order that Ms Daynes appeals.
Legislation relevant to guardianship orders
The authority for making a guardianship order is to be found in The Guardianship and Administration Act 1986 s. 22. It is in the following terms:
“(1)If the Tribunal is satisfied that the person in respect of whom an application for an order is made-
(a) is a person with a disability; and
(b)is unable by reason of the disability to make reasonable judgments in respect of all or any part of the matters relating to her or his person or circumstances; and
(c) is in need of a guardian-
the Tribunal may make an order appointing a plenary guardian or a limited guardian in respect of that person.
(2)In determining whether or not a person is in need of a guardian, the Tribunal must consider-
(a)whether the needs of the person in respect of whom the application is made could be met by other means less restrictive of the person’s freedom of decision and action; and
(b)the wishes of any nearest relatives or other family members of the proposed represented person; and
(c) the desirability of preserving existing family relationships.
(3)The Tribunal cannot make an order under sub-section (1) unless it is satisfied that the order would be in the best interests of the person in respect of whom the application is made.
(4)The Tribunal cannot make an order appointing a plenary guardian unless it is satisfied that a limited guardianship order would be insufficient to meet the needs of the person in respect of whom the application is made.
(5)Where the Tribunal makes an order appointing a limited guardian in respect of a person the order made must be that which is the least restrictive of that person’s freedom of decision and action as is possible in the circumstances.”
It should be noted that the section requires the Tribunal to consider whether the needs of the person the subject of the application can be met by other means less restrictive of that person’s freedom of decision and action in deciding whether a person needs a guardian.[1] Further the Tribunal is required, in framing an order appointing a limited guardian to do so in such a way that is least restrictive of the person’s freedom of decision and action as is possible in the circumstances.[2] Reference should also be made to s. 4 (2) of the Guardianship and Administration Act 1986 which provides:
“(2)It is the intention of Parliament that the provisions of this Act be interpreted and that every function, power, authority, discretion, jurisdiction and duty conferred or imposed by this Act is to be exercised or performed so that-
(a)the means which is the least restrictive of a person’s freedom of decision and action as is possible in the circumstances is adopted; and
(b)the best interests of a person with a disability are promoted; and
(c) the wishes of a person with a disability are wherever possible given effect to.”
[1]sub-section (2)
[2]sub-section (5)
The reassessment was conducted pursuant to the requirements of s.61 of the Guardianship and Administration Act 1986. It provides:
“(1)The Tribunal must conduct a reassessment of a guardianship order or an administration order-
(a)within 12 months after making the order, unless the Tribunal orders otherwise; and
(b)in any case, at least once within each 3 year period after making the order unless the Tribunal orders otherwise.
(2)The Tribunal may at any time conduct a reassessment of any order made by it under this Act.
(3) A reassessment under this section may be conducted-
(a)on the Tribunal’s own initiative; or
(b)on the application of any person.
(4)In addition to any other parties, the following are parties to a reassessment-
(a)the represented person; and
(b)the guardian or administrator (as the case may be).
(5)The amendment to sub-section (1)(b) made by section 25 of the Guardianship and Administration (Amendment) Act 2002 applies to orders made before or after that amendment commences.”
Scope of the Appeal
Ms Daynes appeals against the orders made on 05 August 2005 concerning the position of the guardian and the guardian’s powers and related orders. She does not challenge the decision concerning the purported revocation of the enduring power of attorney. That part of the order is not sought to be set aside. Counsel for Ms Daynes informed the court that she also has particular concerns about the terms of the order of 5 August 2005 giving the additional power and duty to the Public Advocate as guardian “to make decisions concerning access to the represented person” and about the provision which deals with reassessment of the guardianship order and provides that it is to occur no later than 5 August 2008.
Parties to the Appeal
The Originating Motion by which leave to appeal was sought named the Public Advocate’s office and VCAT as defendants to the application. On the return of the summons filed in the matter on 21 September 2005, the solicitor for the Public Advocate informed the Court that the Public Advocate would abide any order and did not wish to be heard save on the issue of costs. On that basis the solicitor was excused from further attendance. The Public Advocate remained a party to the proceedings and was subsequently named as the respondent to the appeal. At the hearing of the appeal, there was an appearance on behalf of the Public Advocate’s office. Counsel appearing for the Public Advocate indicated that it had always been non-adversarial in its role as guardian taking the view that it should investigate and act only in the best interests of Ms Daynes. Counsel pointed out that it was not even the original applicant for the order. That was a Ms Ogilvie who was a social worker at the hospital where Ms Daynes was an in-patient. Counsel also stated that the Public Advocate had no interest in the outcome of the question whether VCAT had breached its obligations. The Public Advocate did not assert an interest in whether the order was upheld or not. Counsel submitted that the Public Advocate had not itself been involved in any question of substance in the matter. In those circumstances, the Public Advocate was not required to attend further on the appeal.
At the hearing before the Senior Master, orders were made that the Tribunal cease to be a party. Further it would appear that Equity Trustees Limited sought leave to be heard by Counsel in the proceeding. That leave was refused in the circumstance, as Counsel for the appellant informed me on the appeal, that it was made clear that it was not sought to challenge the order made on 5 August 2005 that the purported revocation of the power of attorney was invalid.
The result of those developments is that the matter has come before me without a contradictor and, as a result, I have not had the benefit of the assistance of arguments presenting a position contrary to that of the appellant.
The Grounds of Appeal and Questions of Law
The Notice of Appeal sets out the following grounds of appeal:
1.The whole conduct of the hearing was such that it was not conducted fairly and/or according to the substantial merits of the case, contrary to s.97 of the Victorian Civil and Administrative Tribunal Act.
2.The Tribunal did not comply with the rules of natural justice, contrary to s.98(1)(a) of the Victorian Civil and Administrative Tribunal Act, and did not comply with the provisions of s.102(1) of that Act, in that:
(a)it did not allow the appellant any or any other reasonable opportunity to examine or cross examine the authors of the medical reports and the other reports and letters which were before it.
(b)it did not allow the appellant any or any reasonable opportunity to call witnesses to give oral evidence.
(c) it proceeded to a decision without waiting for the arrival or production of a further recent and relevant medical report which was, or which appeared to be, contrary to the views expressed in the medical reports on which the Tribunal relied.
(d)it accepted medical reports as showing that the appellant lacked the relevant capacity when it had read medical reports to the contrary, and rejected the views expressed in the latter reports without any or any adequate reason.
(e)it placed reliance on medical reports and other reports and documents copies of which had not been provided to the appellants legal representative prior to the hearing, or at all.
(f)it refused to adjourn, or did not adjourn, the hearing so as to enable the authors of the medical reports and letters to be examined and cross examined and submissions to be made on the basis of the evidence so obtained.
(g)it proceeded to a determination without giving an opportunity to the appellants’ legal representatives to make submissions on the issues which the Tribunal had to decide.
(h) it did not inform the appellants’ legal representatives that it was considering
(i)making an order giving the Public Advocate prior to [ ] access to the appellant;
(ii)making the order effective for three years.
(i)the whole conduct of the Tribunal gave rise to a reasonable apprehension of bias.
The Notice of Appeal identified the following questions of law:
1.Whether in reaching the conclusions on which the Orders were based, by
(a)accepting medical reports that the appellant lacked capacity when the Tribunal had read medical reports to the contrary;
(b)rejecting or not considering adequately the latter medical reports;
(c) proceeding to a determination when informed that there was a further relevant medical report which was not able to be produced that day;
(d)placing reliance on medical reports and other reports and documents copies of which had not been provided to the appellant’s solicitors prior to the hearing or at all;
(e)refusing to adjourn or not adjourning the hearing to enable the authors of the medical reports and letters to be examined and cross examined and submissions to be made on the basis of the evidence to be obtained;
the Tribunal failed to comply with the following provisions of the Victorian Civil and Administrative Tribunal Act, namely-
(i)section 97
(ii)section 98(1)(a)
(iii)section 102(1)(a), (b) and (c).
2.Whether by reason of the failure of the Tribunal to comply with the above provisions of the Victorian Civil and Administrative Tribunal Act, the decision and orders of the Tribunal
(a)are not valid
(b)ought to be set aside.
The above mentioned sections of the VCAT Act are in the following terms:
“97. Tribunal must act fairly
The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.”
“98. General procedure
(1)The Tribunal-
(a) is bound by the rules of natural justice;
(b)is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices and procedures;
(c) may inform itself on any matter as it seems fit;
(d)must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
(2)….
(3)Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.
(4)Sub-section (1)(a) does not apply to the extent that this Act or an enabling enactment authorises, whether expressly or by implication, a departure from the rules of natural justice.”
“102. Evidence
(1)The Tribunal must allow a party a reasonable opportunity –
(a) to call or give evidence; and
(b) to examine, cross-examine or re-examine witnesses; and
(c) to make submissions to the Tribunal.
(2)Despite sub-section (1), the Tribunal may refuse to allow a party to call evidence on a matter if the Tribunal considers that there is already sufficient evidence of that matter before the Tribunal.
(3)….
(4)….”
Submissions of the appellant
It was submitted for the appellant that the manner in which the Tribunal conducted itself on 5 August 2005 involved non-compliance with sections 97, 98 (1)(a) and s. 102(1) of the VCAT Act and that this resulted in the invalidity of the decision because compliance with those statutory requirements was a condition of jurisdiction. In addition, counsel submitted that the manner of the conducting of the proceedings involved a denial of natural justice at common law. The foregoing issues involved questions of law. Counsel referred to Kioa v West.[3] Counsel also referred to and relied upon the High Court decision in SAAP v Minister of Immigration; [4] Percerep v Minister of Immigration;[5] O’Sullivan v Registration Commission.[6]
[3](1985) (CLR) 550 at 582-5, 587, 612-15, 618 and 628-9; see also Collection House Ltd v. Taylor [2004] VSC 49, [20] and cases there cited.
[4](2005) 215 ALR 162, particularly, at [70-7], [136], [171-3], [203-8].
[5](1998) 86FCR 483 at 495.
[6](2003) 128 FCR 590, 600-1.
Counsel submitted that there had been breaches of the statutory procedural obligations in s. 97 and 102 (1) of the VCAT Act and of the general obligations to give natural justice[7] in that the appellant had been denied the opportunity to:
[7]s. 98 (1)(a) and at common law.
· examine evidence relied upon by the Tribunal,
· test such evidence, and
· call evidence.
In addition, she had no notice of, and therefore was denied the opportunity to address the Tribunal on, the additional power given to the Public Advocate to control access to her and the extension of the date for any reassessment to up to three years.
Counsel submitted that the seriousness of these breaches was exacerbated by the fact that in none of the orders previously made was there specified-
· the disability,
· the basis upon which it was said that Ms Daynes is unable by reason of the disability to make reasonable judgments about her personal circumstances, or
· the basis upon which it had been concluded that a guardian was needed.
These issues, therefore, had to be identified and dealt with by those appearing for Ms Daynes on the basis of the materials before the Tribunal and made available to Ms Daynes.
The Hearing before the Tribunal
An examination of the transcript of the hearing before the Tribunal reveals that application was made by those appearing for Ms Daynes to have access to materials, some of which were in the possession of the Tribunal, but had not been supplied to Ms Daynes or her lawyers. They included the following:
· a report to the Public Advocate by Dr. Michael Woodward, a Consultant Physician in Geriatric Medicine, dated 27 July 2005. He had provided a report to the Public Advocate. He had some familiarity with Ms. Daynes having assessed her in 2003. While he was of the opinion that further management changes were not required, he reported good cognition and speculated whether there may have been improvement associated with cessation of alcohol. He noted no evidence of dementia. Dementia, however, was not, and is not, an issue in question. The concern that has been raised is alcohol related brain impairment.
· The report of the Public Advocate to the Tribunal.
· A report of Dr. Judith Adrienne, a neuro-psychologist. She assessed Ms Daynes on 7 July 2005 and supplied a report to the Public Advocate. It, in turn, supplied the report to the Tribunal. Early in the hearing, the representative of the Public Advocate indicated that Dr. Adrienne was not available that day and the Public Advocate would not normally arrange for the attendance of a neuro-psychologist unless requested to do so by the Tribunal.
Counsel representing Ms Daynes made it very clear to the Tribunal that he wanted the opportunity to
· consider the above material,
· cross-examine the experts such as Dr Adrienne whose opinion supported the making of the guardianship order and its continued existence, and
· make submissions.
I note that Dr. Woodward’s report does not appear to have been on the file of the Tribunal and Counsel for Ms. Daynes expressed concern about that.
In the course of discussion, the Tribunal attempted to address the issue of the report of Dr. Adrienne by reading the summary and conclusions of her report. As Counsel for Ms Daynes has pointed out, this did not fully inform her or her representatives of the factual basis of the opinions or the reasoning processes involved in reaching the conclusion obtained in the material that was read.
Ms Daynes had provided the Tribunal with a report from a Dr. Myers supporting the argument that her capacities were such that she did not need a guardian under the Guardianship and Administration Act 1986. It is clear that Counsel for Ms Daynes was also wanting Dr. Myers to be called to give evidence before the Tribunal. The Tribunal member responded that she had read Dr. Myers’ report along with the other reports and didn’t believe she wished to take evidence from Dr. Myers that day. The member said that she was not intending to take evidence from any of the other doctors who had given reports. Counsel for Ms Daynes mentioned another witness that he wished to call, a registered nurse who had concerns about the treatment that Ms Daynes was receiving.
It also appears from the transcript that, notwithstanding the concerns that had been expressed about the need to have access to reports adverse to Ms Daynes’ application brought on behalf of Ms. Daynes and the opportunity to test them, the Tribunal expressed the view that it preferred the recommendations of Dr. Adrienne over the report relied upon by Counsel representing Ms Daynes, that of Mr Forbes.
Late in the hearing the Tribunal attempted to describe the appellant’s disabilities. Counsel for Ms Daynes had submitted that she was not suffering from dementia. The Tribunal responded by saying that that was not the issue and that the disability in question was one “which affects her ability to make reasonable decisions about her circumstances”. The Tribunal went on to state “her disability is cognitive impairment with attentional and executive dysfunction alcohol related brain impairment”. When Counsel put to the Tribunal that there was no memory problem and asked what cognitive impairment meant, the Tribunal responded that Counsel’s solicitor, Mr. Brott, had received a copy of the file, which included assessments of social workers, occupational therapists and medical practitioners and the problem described was one which “affected her ability to make reasonable decisions about her circumstances and how she manages at home and decisions that affect her lifestyle and financial affairs”. Counsel challenged this assertion relying upon the opinion of a doctor (the transcript does not identify the doctor) who had expressed the opinion that Ms Daynes was able to make rational decisions and had an excellent ability to do so. The Tribunal responded:
“I am apprised of the medical evidence that has been given to me to date. I can tell you that on the basis of all the information that’s been provided to me which includes medical reports, occupational reports, social worker reports, letters provided by people who have been associated with Ms Daynes in the past and in recent times, I am satisfied that she suffers from a disability, I believe that she doesn’t have the power to revoke the power of attorney that was given to Equity Trustees and I believe that the guardianship order should be continued.”
Asked on what basis by counsel for Ms. Daynes the Tribunal replied;
“On the basis of the reports. The balance of medical evidence and other evidence that has been provided to me. And I intend to make an order along those lines. I do not believe that I need to wait for Dr (Woodward’s) report. I think there’s sufficient significant medical and other evidence that’s been given to the tribunal which supports the decision that I make today”.
A little later the Tribunal member stated that she was not going to enter into further discussion and then stated:
“Because I have conflicting medical evidence, I prefer as, I’m entitled to, the evidence of the neuro- psychologist and other doctors. There’s also a psychiatrist report who supports the fact that she is suffering from cognitive decline and possible hypomania or paranoid disorder.”
Counsel then raised issues about medication and the member responded stating:
“I believe that Ms Daynes presents very well but she has an underlying condition which adversely affects her ability to make reasonable judgments about her circumstances, and I believe it is appropriate….”
The transcript then notes an interruption (but not its content) following which the Tribunal stated:
“This is a protective jurisdiction, I believe it is appropriate for the Office of the Public Advocate to continue as her guardian.”
Counsel persisted and submitted that the Tribunal had to determine whether the Public Advocate’s office or guardian was acting in accordance with s. 49 of the Act. The Tribunal responded:
“I have read the report from the Public Advocate. I am satisfied on her explanations and I believe that Ms Daynes is being properly cared for.”
Analysis
The jurisdiction in guardianship applications and reassessments is, as the Tribunal noted, a protective jurisdiction. The reassessment was being conducted, an order having previously been made for appointment of a guardian on the basis of a disability to make reasonable judgments. At the same time, legal practitioners were purporting to represent Ms Daynes and were seeking to have the guardianship order lifted and the enduring power of attorney revoked.
I note that the Tribunal member expressed concern about whether in fact Ms Daynes had the capacity to properly instruct the lawyers to appear for her. That was an issue that plainly troubled the Tribunal. But after stating that in her view the bigger picture initially was whether Ms Daynes had the power to revoke the enduring power of attorney, the member went on to identify the primary issues for decision:
“….but I think the initial decision I have to make is whether having regard to all the medical evidence presented today and previously to me, whether she has the capacity to revoke the enduring power of attorney…and whether she still has the disability that required the guardianship order to be extended.”
It is in the context of the protective jurisdiction and the above issues that the requirements of ss.97, 98 and 102 of the VCAT Act, including natural justice, must operate.
The Tribunal stated that in this jurisdiction it was not
“common practice for the…relevant doctor or specialist to be called. They give generally fairly comprehensive reports and it would only be if I considered it necessary or a particular member considered it necessary to call doctors if they were unsatisfied with the evidence that was presented or the medical reports, that would occur.”
It is understandable that such a practice might be adopted in the exercise of powers given by s.98 (1) (b) (c) and (d).[8] It is also consistent with the non-adversarial approach taken to guardianship list proceedings.[9] In many cases, the practice described would cause no difficulty and, in fact, be desirable. It is likely that in a substantial number of cases there will be no issue about the need for a guardianship order or for its continuation.[10] The issue in the present case, however, is whether the requirements of ss. 97, 98 and 102 of the VCAT Act required a different course to be taken having regard to the issues raised. In circumstances where there is a challenge to the guardianship order and a conflict of expert opinion, it becomes difficult to maintain a non-adversarial approach to the matter while ensuring that the statutory procedural requirements, including natural justice, are met.
[8]CF Winn v Blueprint Instant Printing Pty Ltd. [2002] VSC 295, [9].
[9]Mr J. Billings, Deputy President, Guardianship List, VCAT, “Protecting the Vulnerable”, a paper recently delivered (4 October 2005) to a conference of the Law Institute of Victoria, p. 6.
[10]See Billings, ibid, 8.
Sections 97, 98 and 102 of the VCAT Act give the Tribunal power to decide the way a proceeding should be conducted but they require that the principles of natural justice be observed[11] and, specifically, the giving of a reasonable opportunity to call and test evidence and make submissions. The effect of s. 102 is to impose expressly a duty to allow a “party” a reasonable opportunity to call evidence, question witnesses and make submissions. It permits the Tribunal to depart from the first duty, concerning the calling of evidence, prescribed in s. 102, if it considers there is already sufficient evidence.[12] It does not qualify the other obligations allowing a “party” a reasonable opportunity to question witnesses and make submissions.
[11]s. 98 (1) (a).
[12]s. 102 (2).
It seems to me that particular care must be taken by the Tribunal to comply with the statutory requirements in a case like the present where it is sought, on behalf of the person in respect of whom a guardianship order has been made, to challenge that order and, as the Tribunal itself stated, there was a conflict of expert opinion. It must not be forgotten that the jurisdiction, while protective, is one which can result in the life and liberty of an individual being placed in the control of another.
The Tribunal member appears to have regarded the case as a clear case. Her view of the case may, in part, have flowed from the quite detailed conversations the member had with Ms. Daynes at the hearing about a variety of matters including her perceptions of her health problems and their causes. These conversations may have been seen by the member as confirming in the member’s mind the expert assessments supporting the order. In addition, there was a substantial body of evidence supporting the original order and the member may have had reservations about some of the expert evidence relied upon by those representing Ms. Daynes.
Nonetheless, the Tribunal was obliged to comply with the obligation to accord natural justice, and, in particular, with the requirements of s. 102. In the present case I have come to the conclusion that the procedural requirements were not satisfied and natural justice was denied. There was a clear dispute and conflict on the evidence as to the continued existence of the disabilities that had been found to exist at the time the original order was made. Ms Daynes was denied any real opportunity to adduce evidence and test and counter evidence adverse to her and address argument on the critical issues.
· Ms Daynes was allowed to produce some evidence but was denied the opportunity to call persons to give evidence on the critical issues. The case was not one where it could be said that there was already sufficient evidence[13] before the Tribunal on the issue of Ms Daynes disabilities where what was sought to be placed before it was expert evidence presenting a contrary and more recent assessment of those disabilities.
[13]s. 102(2)
· Ms Daynes was also denied any opportunity to examine, cross-examine or re-examine witnesses on the critical issues.
· While she was allowed to make submissions, Ms Daynes was denied the opportunity to put submissions to the Tribunal about the expert testimony which the Tribunal proposed to rely upon and which had not been made available to her and her legal advisors.
· She was also given no opportunity to call evidence, test evidence or address the issue of the power to control access or the date for reassessment.[14] They were issues where a reasonable opportunity to do so was also necessary if she was to be accorded natural justice.
It cannot be demonstrated that these matters could have had no bearing on the outcome.[15]
[14]Borbon v West Homes Australia Pty Ltd. [2001] VSC 405
[15]Stead v State Government Insurance Commission (1986) 61 CLR 141, 145-6
As for the capacity of Ms Daynes to engage legal practitioners, it seems to me that the Tribunal proceeded appropriately on the basis that such capacity existed until the contrary was demonstrated.[16] After all, a guardian may well be appointed under the Guardianship and Administration Act 1986 for people who need protection because of disabilities they may suffer but those people may still have sufficient capacity to engage lawyers to represent them. Further, it may be said that the objective of the protection of members of the community which lies behind the guardianship legislation and the guardianship jurisdiction is best served if persons in respect of whom guardianship orders have been made can engage lawyers to represent them in applications in respect of those orders.[17]
[16]I note that s. 52 (1) of the Guardianship and Administration Act 1986 has no application.
[17]Mr. Billings has commented, ibid, p.12 “Lawyers too have an important role to play in protecting the vulnerable. They can explain the law to persons with a disability, or to others who are concerned for their welfare. Lawyers can assist those contemplating applying to VCAT to decide if an application to VCAT is actually necessary. If an application is necessary, lawyers can advise applicants how best to apply. They can assist any party for whom they act to prepare for the hearing and may be able to represent them at the hearing. Where cases are unusually complex, lawyers serve their clients and the administration of justice well by endeavouring to isolate the real issues in dispute and, if those issues cannot be resolved informally, to notify the Tribunal at the earliest opportunity of the estimated duration of the hearing and whatever special circumstances there may be.”
At the same time, the protective role requires the Tribunal to be vigilant to protect persons subject to such orders from attempts by third parties to gain control of their lives and assets. Following the procedural requirements in such circumstances is obviously important and all relevant parties should have a reasonable opportunity to explore the evidence relied upon for the applicant.[18]
[18]PRA v MA (2004) 21 VAR 16.
Finally, I note that one of the issues raised by the Notice of Appeal was the issue of apprehended bias on the part of the Tribunal. A fair reading of the transcript, however, points to the Tribunal conscientiously going about its task but, as I see it, misjudging its approach to providing natural justice and to the procedural requirements that needed to be applied in this particular case.
I repeat my concern that I have not had the benefit of arguments of a contradictor in this case. I have attempted to bear that in mind in assessing the evidence and arguments. I have come to the conclusion, however, that the grounds of appeal are made out and that the Order should be set aside.
Appropriate Orders
Counsel for Ms Daynes has submitted that the Order made on 5 August 2005 be set aside, save and except for that part of it dealing with the power of attorney so that it would read that
“the Tribunal makes the following order:
The Tribunal is also satisfied on the basis of all the medical and other evidence provided to the Tribunal that the purported revocation of the represented person on 26 July 2005 of all powers of attorney that may have been granted, which would include the enduring power of attorney granted to Equity Trustees Limited on 25 May 1995, is invalid on the grounds that the represented person did not have the capacity to revoke the power previously granted”.
Counsel also sought an order, however, pursuant to s. 148 (7)(c) of the VCAT Act remitting the proceeding to be heard and decided again with the hearing of further evidence by the Tribunal in accordance with the direction of the Court and that the Tribunal not be constituted by the same member who made the Order on 5 August 2005.
I have come to the conclusion that the orders sought should be made. In particular, as to the Order directing that the matter not be considered by the same member, the Tribunal member in this instance expressed very strong views as to the medical and other expert evidence to be preferred and as to the state of disability relevant to the situation of Ms Daynes. While no doubt the Tribunal member would approach the matter afresh, a reasonable observer would have concerns about the difficulties facing the member in doing so. In those circumstances, it is preferable that the matter be heard by another member of VCAT.
Before concluding these reasons, I wish to draw attention to a matter that appears to me to be relevant to applications for leave to appeal from VCAT in respect of orders made in applications under the Guardianship and Administration Act 1986. In 2000, ss 60A-60D were added to that Act to give VCAT the jurisdiction to conduct rehearings of applications brought before the Tribunal. As I read the provisions, this matter could have been reheard under those provisions. My understanding is that the rehearing is conducted by a more senior member of VCAT. It provides a decision on the merits and the costs are kept to a minimum.
Because the result of a successful appeal will normally be a rehearing on the merits, it seems to me that it is highly relevant to the issue of granting of leave to appeal that rehearing can be obtained in this way. The papers do not reveal whether this issue was drawn to the court’s attention when leave to appeal was sought.
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