DH v NS & Ors
[2005] HCATrans 1048
[2005] HCATrans 1048
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne Nos M54 of 2005 and M80 of 2005
B e t w e e n -
DH
Applicant
and
NS
First Respondent
DR BERNARD TREISTER
Second Respondent
STATE TRUSTEES LIMITED
Third Respondent
THE PUBLIC ADVOCATE
Fourth Respondent
Applications for special leave to appeal
HEYDON J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON FRIDAY, 16 DECEMBER 2005, AT 12.02 PM
Copyright in the High Court of Australia
__________________
MR D.B. SHARP: If the Court pleases, I appear on behalf of the applicant. (instructed by Dan Horseh)
MS C.H. SPARKE: If the Court pleases, I appear on behalf of the first respondent. (instructed by Brygel Lawyers)
MR R.C. WELLS: If the Court pleases, I appear on behalf of the third respondent. (instructed by Maddocks Lawyers)
HEYDON J: Yes, Mr Sharp.
MR SHARP: If the Court pleases. I would like to begin and put a number of specific points to the Court in support of the application. It is submitted that the appointment of a guardian or an administrator are matters involving a deprivation of liberty. Both Moore’s Case and McDonald’s Case, copies of which have been supplied to the Court, make this the starting point of their analysis and the focus of their reasoning. The recent decision of Daynes, a decision of the Supreme Court here in Victoria, also makes this very point. I would like to refer the Court to the specific instances where this is referred to in the various cases. I will begin with McDonald’s Case. Unfortunately, a copy of the case supplied to the Court has had the page references cut from the top right-hand side, your Honour, but the relevant page for this aspect is 531 which is the seventh page from the front. It reads as follows:
In this case, the nature of the review that the Administrative Appeals Tribunal was required to undertake was conditioned by the nature of the primary administrative decision of which review was required and of the attack that the appellant sought to make upon it.
HEYDON J: It is actually 530.
MR SHARP: Yes, I am sorry your Honour, I am reading from page 530:
The right to invoke the jurisdiction of the board and obtain its decision is most singular. Section 19(1) of the Board Act confers a right on any person to apply to the board for an order appointing a guardian in respect of a person with a disability who has attained the age of 18 years. Similarly, s 43(1) of the Act confers a right on any person to apply to the board for an order appointing an administrator in respect of a person with disability who has attained the age of 18 years. If the board is satisfied that the person in respect of whom an appropriate application is made is a person with a disability -
Skipping the next paragraph, your Honour, and going to the paragraph beginning:
It is fair to say that the Board Act provides a charter for administered officiousness. Guardianship and administration orders are calculated to achieve, at the instance of any person at all, a far‑reaching deprivation of the freedom of action not only of represented persons but of near relatives of such persons. This is not to deny that there may be cases in which the jurisdiction of the board may be justifiably invoked. The Board Act, however, prescribes very important safeguards against the making of inappropriate guardianship and administration orders.
It then details the safeguards and, in particular, it details section 4(2) of the Act on page 531. I will not read the actual provisions of the subsection but underneath that, in the paragraph beginning:
The tribunal has itself recognised that the appointment of a plenary guardian under the Board Act, since it officially and formally removes the whole of a person’s legal rights over person and circumstances, is to be made only as a last resort -
and it makes reference to the decision. Similarly, your Honour, in Moore’s Case the court makes similar reference to this fundamental aspect, the deprivation of liberty. Can I refer your Honour to Moore’s Case at page 913, the paragraph which reads:
No such frustration can be pointed to here. On the contrary, the legislation is at pains to expressly refer to the rules of natural justice. There was no element or urgency suggested in the present case that meant that the rules might have to be qualified to protect the plaintiff. Moreover, what was at issue, at best, was her property. As against that there was in issue her important civil liberty to administer her own affairs.
Finally, your Honour if I can refer to this most recent decision, your Honour will appreciate this decision has literally, virtually, only just appeared. I have alerted my learned friends to the decision but it is what I will call a “Net” copy and that is Daynes v The Public Advocate [2005] VSC 485 which was handed down on 14 December 2005, two days ago. Again, this fundamental aspect appears and it does so on page 14 where this passage appears ‑ ‑ ‑
HEYDON J: Our pages are numbered out of 12. What paragraph number?
MR SHARP: I am sorry, 34.
HEYDON J: Beginning, “It seems to me”?
MR SHARP: Yes, your Honour, that paragraph beginning with, “It seems to me”.
HEYDON J: Yes, thank you.
MR SHARP: The last sentence of the paragraph:
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 reason I have referred your Honour to these three cases, which are three of only a relatively small number of cases in the last 20 or so years dealing with guardianship, is that they each stress, I would submit make a fundamental aspect of this deprivation of liberty.
CRENNAN J: But Mr Sharp, even accepting the importance of the principles to which you have referred, what do you say about what is said by the Court of Appeal at page 150 of the appeal book at line 24 to the bottom of the page?
MR SHARP:
Even if there be one or two questions of law identified in the notice of appeal ‑ ‑ ‑
CRENNAN J: Starting with the passage:
Moreover, the fact that he chose independent persons is -
and down to the bottom of the page.
MR SHARP: Yes, your Honour:
Moreover, the fact that he chose independent persons is, as it seems to me, eminently reasonable and the very likely result if there were to be any rehearing or re-exercise of the discretion.
Your Honour, I would say this: the Court of Appeal does not identify the one or two questions of law which it refers to as “raising” or “properly being raised”. The point that the three appeal questions have raised are all, as respectfully submitted, questions of law. The three questions before the Court, the commencement of the notice or the application for appeal, are all quite clearly and categorically questions of law and they were all quite clearly and categorically before the Court of Appeal and they all, with respect, quite clearly and categorically must affect the ultimate issue. They are, namely, that the proposed represented person was not heard ‑ ‑ ‑
HEYDON J: Just taking them backwards, 1.3 is a question of costs.
MR SHARP: Yes, your Honour.
HEYDON J: This Court never grants special leave on questions of costs in the ‑ ‑ ‑
MR SHARP: We would submit that the order for costs is so manifestly unjust, your Honour, that it is a question of the denial of natural justice. The examination of the order and examination of the underlying facts suggest that no proper or reasonable court, with respect, could make such an order. It then becomes, it is submitted, quite properly a question of law if it is. There are two supplementary bases on which it is submitted. One is that the Tribunal took into account a question of attribution or a question to be considered which had not properly, the inferior tribunal established by legislation, which it had no legislative right to do so.
Secondly, that the – I am sorry, your Honour, I have forgotten my second point, but it is that it was done without substantial reasons when substantial reasons were called for. The legislation – this is a question of costs which is dependent on legislation, it being a legislative body – costs of a question of legislation. A proper interpretation of the legislation it is submitted makes it quite clear that the basis relied upon is a question purely of fairness when in fact the Act requires that there be substantial reasons.
Your Honours will appreciate that not only were costs awarded on a party/party basis, they were awarded on a solicitor/client basis. It is submitted that in fact there was no substantial reason for doing either of those things and in that case it becomes a question of law, a question of the interpretation of the relevant provisions, section 109 of the VCAT Act. Those are questions of law, it is respectfully submitted, not questions of fact or simple questions of decision on costs.
The bases of the three arguments are expounded upon in the summary of argument. One of the considerations which on the initial hearing - your Honours will appreciate there have been two hearings before the Tribunal – on the initial hearing Deputy President Billings took into account the fact that if costs were not awarded then people would be deterred from making such an application. This is a reason which is nowhere found in the Act and it is submitted it is a gloss on the power of the Tribunal to make such an order. It does not exist. It should not have been considered. It was considered. That was one of the bases on which this objection is made to the order of costs.
The primary basis for the application or the order with respect to costs is that it is manifestly unjust. The applicant saved the estate by way of the rehearing we would say in excess of $500,000 which is demonstrable. There was in fact a plan which was contrary to the wishes of the proposed represented person involved realising the estate. Because of the application by the applicant that plan was not proceeded with. In fact it was specifically withdrawn by the fourth respondent and it was the matter of comment by his Honour Judge Bowman that obviously – and I paraphrase – this aspect should not have occurred.
Here we have, to add insult to injury, a report which has been prepared and paid for by the represented person which is proposing things contrary to his wishes and which, in the upshot, should not have been proposed. Those are just some of the things that were achieved as a result of the application for a rehearing, not the least of course being that the administrator halved its commission. We say these were all errors on the part of the initial application or the initial orders. That would be what we would say with respect to the third ground. Does your Honour wish me to proceed to the next two?
HEYDON J: Yes.
MR SHARP: The main objection to the proceedings is that it has been made contrary to the law. The rulings of the courts and of the Tribunals are contrary to Moore’s Case. Perhaps I should note that the question of the matters which were raised – if I may finish that aspect just briefly, your Honour - the extraordinary omission of the Court of Appeal is that nowhere is a reference – in none of the judgments and neither of the two Court of Appeal judgments and – except for the most minor indirect reference in the Tribunal judgments is there any reference, as I have read from the three cases, to the question of the deprivation of liberty. There is simply no mention that the courts have taken this into account, or the tribunals and/or the courts have taken this into account. There is no mention in the judgments of the Court of Appeal that this is a matter involving a deprivation of liberty.
The second and most important ground – the most important objection to these proceedings, your Honour, is that it is contrary to the providing law, it is contrary to the Act as it is interpreted by the existing case law, in particular Moore’s Case and McDonald’s Case. Those cases have considered the law and have given principles of interpretation. They are such as to establish that the paramount provision in the Act, the paramount consideration in the Act is contained in 4(2)(c).
The alternative which is what is submitted was the course adopted by the Tribunal is to provide as paramount that the interests of the proposed represented person should be considered and in the discretion of the Tribunal these should be catered for. It is one or the other, your Honour, and, with respect, consistent with all of the existing principles of law, and consistent with the interpretation of Moore’s Case and McDonald’s Case, the proper meaning of Moore’s Case it is difficult – it is conceded that one must understand Moore’s Case and it takes some grappling to understand what his Honour Mr Justice Gobbo, with great analysis – I am not deigning to criticise the judgment, but what Mr Justice Gobbo has ruled it is submitted quite patently rightly so, is that the Act provides that the dominant provision and a paramount provision – and there must be a paramount provision – of section 4(2)(c) is that:
the wishes of –
the proposed represented person will:
wherever possible be given effect to.
That has a very important consequence. It precludes the discretionary deprivation of liberty. The alternative is to say that the paramount consideration is 4(2)(a) which says that the interests of the proposed represented person must always be considered.
That, however, means that the Tribunal imposes upon the proposed represented person what it considers to be in his best interests. That is the crucial distinction. The latter, in my respectful submission, leads to this result. It leads to the discretionary deprivation of liberty which has never been a component aspect of Anglo‑Saxon law, quite the contrary. It is an alien concept to Anglo‑Saxon law that there should be a discretionary deprivation of liberty.
CRENNAN J: There was a good deal of evidence, was there not, about advancing dementia?
MR SHARP: Yes, your Honour, there was.
MS CRENNAN: Which made it difficult, as I apprehend it, to determine with any certainty precisely what the wishes of Y might be.
MR SHARP: No, your Honour, that is, with respect, not so although his Honour Judge Bowman did add that gloss but the findings are quite clear. His Honour did make findings as to the wishes of the proposed represented person and those findings are set out and perhaps I can refer your Honours to them. They are quite consistent with the applicant’s argument. They are contained in paragraphs 71 and 72, which is AB 74, 75, your Honour. Perhaps I can read from that.
CRENNAN J: We can read them for ourselves, thank you.
MR SHARP: As your Honour pleases. Your Honour, I would also ask you to read paragraph 73.
HEYDON J: Your time is nearly up, Mr Sharp. Is there any other point you wish to make?
MR SHARP: Yes, your Honour, indeed. First of all, I would stress that his Honour Judge Bowman did find that the wishes of the person were that there should be no administrator and no guardian and that H, in effect, if there was to be, should be appointed. He found that. There is no question of that, with respect, your Honour, and properly so. The other point is that he did not, in so far as he purported to say that there was trouble ascertaining the wishes of Mr Y, the proposed represented person, with respect, he did not properly try. He did not hear him, and as McDonald’s Case makes clear, this has to be a current determination.
The Tribunal largely relied on the transcript of his appearance before the Tribunal in April 2003. It effectively delivered final judgment – finally made its rulings in February 2005 but effectively delivered its final judgment in July 2004. That is almost 16 months. McDonald’s Case dealt precisely with this and one of the determining factors of McDonald’s Case is that whatever else a rehearing does it must make its decisions based on current circumstances.
HEYDON J: We have that point, Mr Sharp, thank you.
MR SHARP: Yes. If your Honour pleases.
HEYDON J: We need not trouble you, Ms Sparke and Mr Wells.
There are insufficient reasons to doubt the correctness of the Court of Appeal’s approach. Accordingly, both applications are dismissed with costs.
AT 12.24 PM THE MATTERS WERE CONCLUDED
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