Duane Dudley Broad No. Dcaat-96-129 Judgment No. D3560

[1997] SADC 3560

Court

DISTRICT COURT OF SOUTH AUSTRALIA

Reasons For Decision of His Honour the Chief Judge, Assessor Dahl and Assessor Rofe

Hearing

10/02/97.

Catchwords

Application for leave to appeal against an order made by the Guardianship Board reviewing previous order that Public Trustee be appointed full administrator of the estate of the appellant. Hearing before the Board proceeded in the absence of the appellant's lawyer - appellant not clearly informed of relevant issues at time of hearing - departure from essential evidentiary and procedural requirements of a just hearing - principles of natural justice must be followed. Leave to appeal granted and the subject matter of the appeal remitted to the Board, differently constituted, for rehearing. ``mental incapacity''

Materials Considered

• Guardianship &; Administration Act 1993 ss29, 57, referred to.

Representation

Appellant DUANE DUDLEY BROAD:
Counsel: MR P C CHARMAN - Solicitors: P C CHARMAN

Respondent GUARDIANSHIP BOARD:
Counsel: MS K J PAROUCHAIS - Solicitors: CROWN SOLICITOR

DCAAT-96-129

Judgment No. D3560

5 March 1997

In The Matter of THE GUARDIANSHIP &; ADMINISTRATION ACT 1993

(Administrative Appeals)

IN THE MATTER OF THE GUARDIANSHIP & ADMINISTRATION ACT 1993

DUANE DUDLEY BROAD

Administrative Appeals

Chief Judge, Assessor Dahl and Assessor Rofe

This is an application for leave to appeal against an order made by the Guardianship Board on 16 September 1996 that Public Trustee be appointed full administrator of the estate of the appellant.

The grounds of appeal, as amended at the hearing of the Court, are as follow:-

"1. That the Appellant was denied natural justice in that:

a) the Respondent failed to put or to adequately put to the Appellant the nature of the case against him, in particular the evidence of the Appellant's mental incapacity

b) the Respondent having failed to put or to adequately put to the Appellant any evidence of mental incapacity further failed to give the Appellant the opportunity to adduce contrary evidence

c) the Respondent failed to ensure that there was adequate opportunity for the Appellant to be legally represented."

At the hearing before the Court, counsel for the appellant contended that the Board had not acted in accordance with the principles of natural justice and procedural fairness in disposing of the appellant's case.He contended that the Board had not had due regard to the requirements of section 29 of the Guardianship & Administration Act 1993 when considering the case.It is common ground that an administration order in respect of the appellant had been made on 14 July 1995 and that the Board had sat for the purpose of reviewing that order pursuant to section 57 of the Act.Counsel argued that, in the circumstances of the case, the Board had been bound to revoke the order pursuant to section 57(2).

Counsel for the respondent contended that evidence as to the appellant's mental incapacity had been given to the Board prior to its making a community treatment order on the same day as the administration order had been made on 14 July 1995.Counsel conceded, however, that there had not been any application made for a new community treatment order on the expiry of that order.She argued that there had been sufficient evidence before the Board to meet the requirements of section 29 and that the appellant had been adequately informed of the nature of the proceedings.She further contended that the appellant had clearly decided that the proceedings before the Board should proceed, notwithstanding the absence of the lawyer with whom the appellant had been in communication.

The pre-requisites to the making of an administration order are contained in section 29 of the Act.Subsection (1) of that section reads as follows:-

29. (1) If the Board is satisfied, on an application made under this Division -

(a) that the person the subject of the application has a mental incapacity;

(b) that the person the subject of the application does not have an enduring guardian;and

(c) that an order under this section should be made in respect of the person,

the Board may, by order, place the person under -

(d) the limited guardianship;

or

(e) if satisfied that an order under paragraph (d) would not be appropriate, the full guardianship,

of such person or persons as the Board considers, in all the circumstances of the case, to be the most suitable for the purpose."

Section 57 provides for the periodic review of guardianship orders.That section reads:-

"57. (1) The Board must review the circumstances of a protected person -

(a) in the case of a protected person who is being detained in any place pursuant to an order of the Board - within six months of the making of the order and thereafter at intervals of not more than one year;

and

(b) in any other case - at intervals of not more than three years,

for the purpose of ascertaining whether the order or orders to which the person is subject under this Act are still appropriate.

(2) The Board may conduct a review in such manner as it thinks fit.

(3) The Board must, on completion of a review, revoke the order or orders to which the protected person is subject unless the Board is satisfied that there are proper grounds for the order or orders remaining in force.

(4) If the Board is satisfied that there are proper grounds for an order remaining in force, the Board may, by order, vary the terms of the order."

We draw attention to the fact that the review is "for the purpose of ascertaining whether or not the order or orders to which the person is subject under this Act are still appropriate."In our opinion, the effect of that provision is to require the Board to be satisfied, on the review, that the pre-requisites stipulated by section 29 still exist.

Thus, the first thing about which the Board must be satisfied on a review is that the protected person then has a mental incapacity.The expression "mental incapacity" is defined for the purposes of the Act in section 3 in the following terms:-

"'mental incapacity' means the inability of a person to look after his or her own health, safety or welfare or to manage his or her own affairs, as a result of -

(a) any damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the brain or mind;

or

(b) any physical illness or condition that renders the person unable to communicate his or her intentions or wishes in any manner whatsoever:"

In the circumstances of the present case, the Board was thus required to be satisfied that the appellant is unable to look after his own health, safety or welfare or to manage his own affairs as a consequence of damage to, or any illness, disorder, imperfect or delayed development, impairment or deterioration, of the appellant's brain or mind.

We agree with counsel for the appellant that the nature of the enquiry required to be made by the Board was not clearly put to the appellant.The appellant patently sought to have the order terminated.There was, however, no evidence directed at the appellant's state of health at the time when the review was being undertaken.The Board was informed by the Community Case Manager that he and the treating doctor had been content to allow the previous community treatment order to lapse and nothing was put to the appellant to inform him that the question as to whether or not he then had a mental incapacity was a relevant issue.Even if the appellant had been notified of the nature of the enquiry that the Board was to conduct, it must also be said that the fact that a community treatment order had been made on 14 July 1995 was not persuasive evidence, in the circumstances of the case, that the appellant was still suffering from a mental incapacity at the time of the hearing.

The evidence was strong on the issue of the lack of adequate management of the appellant's affairs in the past, but, as we have endeavoured to stress, that was not the only question before the Board.There are many people in the community whose affairs are in disarray but who would not be the proper subject of an administration order under the Act.

We also express concern that the hearing proceeded before the Board in the absence of the lawyer with whom it was known that the appellant had been in contact.True it is that the appellant indicated that "I'll get it over and done with," but that statement was made in the absence of any clear indication having been given to the appellant as to just what the issues were before the Board on the day in question.His consent to proceed could not be said to have been made in circumstances in which he had been fully informed.

The powers of the Board are such that its orders under the Act may have far reaching consequences for a protected person and for that person's personal affairs.That being the case, it is very important for the Board to ensure that the principles of natural justice are faithfully followed.A desire to reduce formality in the hearing room must not be allowed to bring with it a departure from the essential evidentiary and procedural requirements of a just hearing.Our opinion is that, in this case, and no doubt inadvertently, that consequence has followed.

In all of the circumstances of the case, we consider it appropriate to grant the appellant leave to appeal and to remit the subject matter of the appeal to the Board, differently constituted, for rehearing.